EXHIBIT 10.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") made as of this 21st day of
September, 1999 is by and between XxxxxxxxXxxxxx.xxx, Inc., a Florida
corporation, with its principal place of business at 0000 X. Xxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxxxx, XX 00000 (the "Company"), and SBZ Investments and Xxxxxx
Xxxxxxx-Xxxxx, Principal with its principal place of business at 00 Xxxxx Xx.,
Xxxxxxx Xxxxx, XX 00000 (the "Consultant").
R E C I T A L S:
The Company is a public company with a class of equity securities publicly
traded, and desires to retain Consultant to provide certain financial consulting
services.
Consultant has provided acquisition-related and other consulting services in the
past and desires to provide certain additional consulting services to the
Company in accordance with the terms and conditions contained hereinafter.
The Company does not have cash sufficient to pay for such services and desires
to issue common stock as compensation.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties hereto hereby agree as follows:
CONSULTING SERVICES. During the term of this Agreement, Consultant is
hereby retained by the Company to provide accounting and acquisition consulting
services to the Company, as said services relate to corporate finance matters,
including, without limitation, advice regarding acquisitions, consolidations,
mergers, joint ventures and financial strategies. Consultant shall provide such
financial consulting services as reasonably requested by the Company during the
term of this Agreement, provided that nothing hereunder shall require Consultant
to devote a minimum number of hours per calendar month toward the performance of
services hereunder. The level and scope of services that may reasonably be
requested hereunder shall be dependent, in part, on the amount of compensation
to be paid Consultant by the Company hereunder. Unless otherwise agreed to by
Consultant, all services hereunder shall be performed by Consultant, in its sole
discretion, at its principal place of business or other offices. Notwithstanding
anything contained herein to the contrary, the services to be performed by
Consultant hereunder may be performed by any employee or consultant to
Consultant.
TERM. The term of this Agreement shall be for one year commencing as of
the date first written above and terminating one day prior to the first
anniversary hereof; provided, however, that this Agreement shall be renewable
for subsequent one year terms, by mutual agreement of the parties in writing, at
least thirty (30) days prior to the expiration of the then current term.
COMPENSATION. In consideration for the performance of services
hereunder, the Company hereby agrees to pay Consultant the aggregate sum of
500,000 shares of the Company's common stock as full compensation for the term
of this Agreement, based on the current stock price of approximately $.375 per
share, as follows: (a) 200,000 shares shall be issued for services rendered and
to be rendered in fiscal 1999, (b) 200,000 shares shall be issued for services
to be rendered in fiscal 2000, and (c) 100,000 shares shall be issued for
introduction of the potential Innovonics acquisition. The Consultant is
responsible for all of his incidental out of pocket expenses. The Company hereby
agrees to pay on a pre-approval basis extraordinary expenses incurred by
Consultant in connection with such services to be rendered hereunder. Consultant
may, from time to time, deem it to be in the best interests of the Company to
retain an outside consultant in connection with certain specific acquisitions or
proposed transactions. In such event, the Company hereby agrees to pay any and
all fees and expenses of such consultant.
REPRESENTATIONS OF THE COMPANY. The Company hereby represents and
warrants that any and all information supplied hereunder to Consultant in
connection with any and all services to be performed hereunder by Consultant for
and on behalf of the Company shall be true, complete and correct as of the date
of such dissemination and shall not fail to state a material fact necessary to
make any of such information not misleading. The Company hereby acknowledges
that the ability of Consultant to adequately provide accounting and acquisition
related consulting services hereunder and/or to initiate and/or effectuate
introductions on behalf of the Company with respect to potential acquisitions is
dependent upon the prompt dissemination of accurate, correct and complete
information to Consultant. In addition, and notwithstanding anything contained
herein to the contrary, nothing hereunder shall obligate Consultant to make any
minimum number of introductions hereunder or to initiate any merger or
acquisitions involving or relating to the Company. The Company further
represents and warrants hereunder that this Agreement and the transactions
contemplated hereunder, have been duly and validly authorized by all requisite
corporate action; that the Company has the full right, power and capacity to
execute, deliver and perform its obligations hereunder; and that this Agreement,
upon execution and delivery of the same by the Company, will represent the valid
and binding obligation of the Company enforceable in accordance with its terms.
The representations and warranties set forth herein shall survive the
termination of this Agreement.
INDEMNIFICATION.
The Company hereby agrees to indemnify, defend and hold
harmless Consultant, its officers, directors, principals, employees, affiliates,
and shareholders, and their successors and assigns from and against any and all
claims, damages, losses, liability, deficiencies, actions, suits, proceedings,
costs or legal expenses (collectively the "Losses") arising out of or resulting
from: (i) any breach of a representation, or warranty by the Company contained
in this Agreement; or (ii) any activities or services performed hereunder by
Consultant, unless such Losses were the result of the intentional misconduct or
gross misconduct of Consultant; or (iii) any and all costs and expenses
(including reasonable attorneys' and paralegals' fees) related to the foregoing,
and as more fully described below.
If Consultant receives written notice of the commencement of
any legal action, suit or proceeding with respect to which the Company is or may
be obligated to provide indemnification pursuant to Section 7 above, Consultant
shall, within thirty (30) days of the receipt of such written notice, give the
Company written notice thereof (a "Claim Notice"). Failure to give such Claim
Notice within such thirty (30) day period shall not constitute a waiver by
Consultant of its right to indemnity hereunder with respect to such action, suit
or proceeding. Upon receipt by the Company of a Claim Notice from Consultant
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), Consultant may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
Company shall cooperate in the defense of the Third Party Claim and shall
furnish such records, information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be reasonably required
in connection therewith. Consultant shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of Consultant unless the Company shall not have promptly employed
counsel to assume the defense of the Third Party Claim, in which event such fees
and expenses shall be borne solely by the Company. The Company shall not satisfy
or settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of Consultant. If the
Company shall fail with reasonable promptness either to defend such Third Party
Claim or to satisfy or settle the same, Consultant may defend, satisfy or settle
the Third Party Claim at the expense of the Company and the Company shall pay to
Consultant the amount of any such Loss within ten (10) days after written demand
therefor. The indemnification provisions hereunder shall survive the termination
of this Agreement.
AMENDMENT. No modification, waiver, amendment, discharge or change of
this Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification, waiver,
amendment, discharge, or change is sought.
NOTICES. All notices, demands or other communications given hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person or transmitted by facsimile transmission or the third calendar day
after being mailed by United States registered or certified mail, return receipt
requested, postage prepaid, to the addresses herein above first mentioned or to
such other address as any party hereto shall designate to the other for such
purpose in the manner hereinafter set forth.
ENTIRE AGREEMENT. This Agreement contains all of the understandings and
agreements of the parties with respect to the subject matter discussed herein.
All prior agreements, whether written or oral, are merged herein and shall be of
no force or effect.
SEVERABILITY. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
CONSTRUCTION AND ENFORCEMENT. This Agreement shall be construed in
accordance with the laws of the State of Florida, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state or federal courts
located in Palm Beach County in the State of Florida. The parties hereto hereby
accept the exclusive jurisdiction of those courts for the purpose of any such
suit, action or proceeding. Venue for any such action, in addition to any other
venue permitted by statute, will be Palm Beach County, Florida. The parties
hereto hereby irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any judgment entered by any court in respect thereof brought in Palm Beach
County, Florida, and hereby further irrevocably waive any claim that any suit,
action or proceeding brought in Palm Beach County, Florida, has been brought in
an inconvenient forum.
BINDING NATURE. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their respective
successors and assigns.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
XxxxxxxxXxxxxx.xxx, Inc.
By: /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx, President
SBZ Investments
By: /s/ XXXXXX XXXXXXX-XXXXX
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Xxxxxx Xxxxxxx-Xxxxx
