EXHIBIT 10.1
INDEPENDENT CONTRACTOR / CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 7th day of January, 2002 by
and between Sector Communications, Inc., hereinafter referred to as "Client",
with its principal place of business 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx
Xxxxxxx, XX 00000, and Attorney Xxxx X. Xxx Xxxxxxx, with his/its place of
business at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, hereinafter
referred to as "Consultant".
RECITALS
A. WHEREAS, Client is a publicly traded company with an interest in developing
business for itself in foreign countries (countries other than the United
States); and
B. WHEREAS, the Consultant is an attorney generally knowledgeable in the areas
of representation of companies in California and South America and possesses
experience in government negotiations, application requirements to obtain
licenses, and arrangement for inter-country business; and
C. WHEREAS, the Company wishes to engage the Consultant on a non-exclusive basis
as an independent contractor to utilize Consultant's legal and business
experience for the Company; and
D. WHEREAS, the Consultant is willing to be so retained on the terms and
conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to perform the
following consulting services ( the "Consulting Services"):
1.1.1. Duties of Consultant. The Consultant will provide attorney and such other
services and advice to the Company so as to assist the Company's
director/attorneys in development of its business in the USA. Without limiting
the generality of the foregoing, Consultant will also assist the Company in its
strategic development, evaluating acquisition proposals, in particular that of
eModel, inc., (including preparation of reports, opinions and studies thereon
when advisable), and assisting in negotiations and discussions pertaining to the
development of business for the Company.
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Nothing contained herein constitutes a commitment on the part of the Consultant
to find an acquisition for the Company or, if such target is found, that any
transaction will be completed. This Agreement is not a contract for listing
services, and nothing in this Agreement will require the Consultant to negotiate
on behalf of the Company, with corporations that are involved with listings or
making a market in corporate securities in the OTC markets. Consultant and
Client both specifically disavow any such responsibilities of Consultant and
agree that no such conduct on behalf of the company shall ever be authorized
under this agreement.
2. Duties Expressly Excluded. This Agreement expressly excludes the Consultant
from providing any and all capital formation and/or public relations services to
the Company inclusive of but not limited to (i) direct or indirect promotion of
the Company's securities; (ii) assistance in making of a market in the Company's
securities; and (iii) assistance in obtaining debt and / or equity financing.
The Consultant shall not have the power of authority to bind the Company to any
such transaction.
3. Consideration. Client and Consultant agree that Consultant will receive from
the Client a fee of $25,000.00 (twenty five thousand dollars U.S.) or, at
Client's election, four hundred thousand (400,000) shares of Client's $.001
common stock (the "Consideration Shares") as consideration for the services
rendered or to be rendered pursuant to this Agreement. Time and place for
payment shall be agreed upon by the parties and shall under all circumstances be
reasonable. The number of Consideration Shares was calculated by reference to
the average of the closing prices of the 5 trading days immediately preceding
the effective date of this agreement.
4. Term. This Agreement shall be effective for a term of two (2) months starting
from the date when services were first provided, which is stipulated to be
January 7, 2002; the Agreement shall continue in full force unless sooner
terminated or amended upon mutual written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses incident
to performing the Consulting Services, without a right of reimbursement from the
Company unless such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Company or to any
officer, director, employee, stockholder or creditor of the Company, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, the Company agrees to defend, indemnify,
and hold the Consultant harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in the defense
of the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
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7. Company's Liability. The Consultant agrees to defend, indemnify, and hold the
Company harmless from any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense on the Company) which may
in any way result pursuant to its gross negligence or willful misconduct or in
any connection with any actions taken or statements made, on behalf of the
Company, without the prior approval or authorization of the Company or which are
otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representations:
8.1.1. Consultant has no prior or existing legally binding obligations that are
in conflict with its entering into this Agreement;
8.1.2. Consultant shall not offer or make payment of any consideration to
brokers, dealers, or other for purposes of inducing the purchase, making of a
market or recommendation for the purchase of the Company's securities;
8.1.3. Consultant is not currently the subject of an investigation or inquiry by
the Securities and Exchange Commission, the NASD, or any state securities
commission;
8.1.4. Consultant's activities and operations fully comply with now and will
comply with in the future all applicable state and federal securities laws and
regulations;
8.1.5. Consultant understands that, as a result of its services, it may come to
possess material non-public information about the Company, and that it has
implemented internal control procedures designed to reasonably insure that it
and none of its employees, agents, Consultant or affiliates, trade in the
securities of client companies while in possession of material non-public
information;
8.1.6. During the Term of this Agreement and for a period of six months
thereafter, the Consultant shall treat as the Company's confidential trade
secrets all date, information, ideas, knowledge and papers pertaining to the
affairs of the Company. Without limiting the generality of the foregoing, such
trade secrets shall include; the identity of the Company's customers, suppliers
and prospective customers and suppliers; the identity of the Company's creditors
and other sources of financing; the Company's estimating and costing procedures
and the cost and prices charged by the Company for its products and services;
the prices or other consideration charged to or required of the Company by any
of its suppliers or potential suppliers; the Company's sales and promotional
policies; and all information relating to programs, properties, or services
being produced or otherwise developed by the Company. The Consultant shall not
reveal said trade secrets to others except in the proper exercise of its duties
for the Company, unless compelled to disclose such information by judicial or
administrative process; provided, however, that the divulging of information
shall not be a breach of this Agreement to the extent that such information was
(i) previously known by the party to which it is divulged, (ii) already in the
public domain, all through no fault of the Consultant, or (iii) required to be
disclosed by Consultant pertaining to the affairs of the Company's suppliers and
customers and prospective customers and suppliers as confidential trade secrets
of such customers and suppliers and prospective customers and suppliers, and;
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8.1.7. Consultant agrees to notify the Company immediately if at any time, any
of the representations and warranties made by the Consultant herein are no
longer true and correct or if a breach of any of the representations and
warranties made by the Consultant herein occurs.
8.1.8 Notwithstanding the foregoing, nothing in this Agreement shall be deemed
to waive any applicable attorney-client privilege existing between Client and
Consultant.
9. The Company makes the following representations:
9.1.1. The Company is not currently the subject of an investigation or inquiry
by the Securities and Exchange Commission, the NASD, or any state securities
commission.
9.1.2. The Company is in good standing in its state of incorporation.
9.1.3. The Company and its senior management are not aware of any materially
adverse events not previously disclosed in the Company's annual and quarterly
reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject mater hereof. This Agreement shall
not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights hereunder may
not be assigned by the parties (except by operation of law or merger) and shall
be binding upon and inure t the benefit of the parties and their respective
successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties hereto shall
be sufficiently given if sent by certified or registered mail, postage prepaid,
or faxed and confirmed at the following locations:
Company:
Sector Communications, Inc.
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Consultant:
Xxxx X. Xxx Xxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
or at such other location as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice or other communication shall
be deemed to be given on the date of receipt.
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14. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is deemed unlawful or invalid for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of
this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and execute and
deliver any further documents that may be reasonably necessary to carry out the
provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it had the
opportunity to employ separate and independent counsel of its own choosing in
connection with this Agreement.
19. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first written above.
Sector Communications, Inc.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Its: President
Xxxx X. Xxx Xxxxxxx.
/s/ Xxxx X. Xxx Xxxxxxx
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