EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of the 2nd day
of June, 2000, by and between Xxxxxx X. Xxxxx, a citizen and resident of Canada,
of 309 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0 ("Consultant") and
College Software, Inc., a Florida corporation with its offices located in
Vancouver, B.C. (the "Company").
WHEREAS, Consultant is a practicing attorney with experience in general
corporate securities matters; and
WHEREAS, the Company desires to retain Consultant to advise and assist
the Company in its development on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Consultant agree as follows:
1. ENGAGEMENT
The Company hereby retains Consultant, effective as of the date hereof
(the "Effective Date") and continuing until termination, as provided
herein, to assist the Company in it's effecting the purchase of
businesses and assets relative to its business and growth strategy,
general business and financial issues consulting, and providing
assistance in arranging, structuring and closing equity and/or debt
financing for the Company (the "Services"). The Services are to be
provided on a "best efforts" basis directly and through Consultant's
agents or others employed or retained and under the direction of
Consultant, if any ("Consultant's Personnel"); provided, however, that
the Services shall expressly exclude any financial or accounting
advice, accounting services or other services which require licenses or
certification which Consultant may not have.
2. TERM
This Agreement shall have an initial term of six (6) months (the
"Primary Term"), commencing with the Effective Date. At the conclusion
of the Primary Term this Agreement may be extended for the same term
(the "Extension Period") if the parties agree in writing to do so.
3. TIME AND EFFORT OF CONSULTANT
Consultant shall allocate time and Consultant's Personnel as it deems
necessary to provide the Services. The particular amount of time may
vary from day to day or week to week. Except as otherwise agreed,
Consultant's monthly statement identifying, in general, tasks performed
for the Company shall be conclusive evidence that the Services have
been performed. Additionally, in the absence of willful misfeasance,
bad faith, negligence or reckless disregard for the obligations or
duties hereunder by Consultant, neither Consultant nor Consultant's
Personnel shall be liable to the Company or any of its shareholders for
any act or omission in the course of or connected with rendering the
Services, including but not limited to losses that may be sustained in
any corporate act in any subsequent Business Opportunity (as defined
herein) undertaken by the Company as a result of advice provided by
Consultant or Consultant's Personnel.
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4. COMPENSATION
The Company agrees to pay Consultant a fee for the Services
("Consulting Fee") by way of the delivery by the company of One Hundred
Thousand (100,000) shares of the Company's common stock as a fee,
issued under Rule 701 with any required restriction, with a deemed
value of $0.10 per share. These shares shall be delivered within seven
(7) days of the execution hereof. All shares transferred are considered
fully earned and non-assessable as of the date hereof.
5. REGISTRATION OF SHARES
Company agrees that any shares issued to satisfy a Transaction Fee may
be registered by the Company with the Securities and Exchange
Commission under any subsequent applicable registration statement filed
by the Company at the Company's discretion. Such issuance or
reservation of shares shall be in reliance on representations and
warranties of Consultant set forth herein.
6. COSTS AND EXPENSES
All third party and out-of-pocket expenses incurred by Consultant in
the performance of the Services or for the settlement of debts shall be
paid by the Company, or Consultant shall be reimbursed if paid by
Consultant on behalf of the Company, within ten (10) days of receipt of
written notice by Consultant, provided that the Company must approve in
advance all such expenses in excess of $500 per month.
7. PLACE OF SERVICES
The Services provided by Consultant or Consultant's Personnel hereunder
will be performed at Consultant's offices except as otherwise mutually
agreed by Consultant and the Company.
8. INDEPENDENT CONTRACTOR
Consultant and Consultant's Personnel will act as an independent
contractor in the performance of its duties under this Agreement.
Accordingly, Consultant will be responsible for payment of all federal,
state, and local taxes, if any, on compensation paid under this
Agreement, including income and social security taxes, unemployment
insurance, and any other taxes due relative to Consultant's Personnel,
and any and all business license fees as may be required. This
Agreement neither expressly nor impliedly creates a relationship of
principal and agent, or employee and employer, between Consultant's
Personnel and the Company. Neither Consultant NOR Consultant's
Personnel are authorized to enter into any agreements on behalf of the
Company. The Company expressly retains the right to approve, in its
sole discretion, each Asset Opportunity or Business Opportunity
introduced by Consultant, and to make all final decisions with respect
to effecting a transaction on any Business Opportunity.
9. REJECTED ASSET OPPORTUNITY OR BUSINESS OPPORTUNITY
If, during the Primary Term of this Agreement or any Extension Period,
the Company elects not to proceed to acquire, participate or invest in
any Business Opportunity identified and/or selected by Consultant,
notwithstanding the time and expense the Company may have incurred
reviewing such transaction, such Business Opportunity shall revert back
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to and become proprietary to Consultant, and Consultant shall be
entitled to acquire or broker the sale or investment in such rejected
Business Opportunity for its own account, or submit such assets or
Business Opportunity elsewhere. In such event, Consultant shall be
entitled to any and all profits or fees resulting from Consultant's
purchase, referral or placement of any such rejected Business
Opportunity, or the Company's subsequent purchase or financing with
such Business Opportunity in circumvention of Consultant
10. NO AGENCY EXPRESS OR IMPLIED
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Company and Consultant, or employee
and employer as between Consultant's Personnel and the Company.
11. TERMINATION
The Company and Consultant may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) By the Company.
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(i) If during the Primary Term of this Agreement or any
Extension Period, Consultant is unable to provide the
Services as set forth herein for thirty (30)
consecutive business days because of illness,
accident, or other incapacity of Consultant's
Personnel; or,
(ii) If Consultant willfully breaches or neglects the
duties required to be performed hereunder; or,
(iii) At Company's option without cause upon 30 days
written notice to Consultant; or
(B) By Consultant.
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(i) If the Company breaches this Agreement or fails to
make any payments or provide information required
hereunder; or,
(ii) If the Company ceases business or, other than in an
Initial Merger, sells a controlling interest to a
third party, or agrees to a consolidation or merger
of itself with or into another corporation, or enters
into such a transaction outside of the scope of this
Agreement, or sells substantially all of its assets
to another corporation, entity or individual outside
of the scope of this Agreement; or,
(iii) If the Company subsequent to the execution hereof has
a receiver appointed for its business or assets, or
otherwise becomes insolvent or unable to timely
satisfy its obligations in the ordinary course of,
including but not limited to the obligation to pay
the Initial Fee, the Transaction fee, or the
Consulting Fee; or,
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(iv) If the Company subsequent to the execution hereof
institutes, makes a general assignment for the
benefit of creditors, has instituted against it any
bankruptcy proceeding for reorganization for
rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated
a bankrupt; or,
(v) If any of the disclosures made herein or subsequent
hereto by the Company to Consultant are determined to
be materially false or misleading.
In the event Consultant elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term or
any Extension Period by mutual written agreement, or by the Company for
the reasons set forth in A(i) and (ii) above, the Company shall only be
responsible to pay Consultant for unreimbursed expenses, Consulting Fee
and Transaction Fee accrued up to and including the effective date of
termination. If this Agreement is terminated by the Company for any
other reason, or by Consultant for reasons set forth in B(i) through
(v) above, Consultant shall be entitled to any outstanding unpaid
portion of reimbursable expenses, Transaction Fee, if any, and for the
remainder of the unexpired portion of the applicable term (Primary Term
or Extension Period) of the Agreement.
12. INDEMNIFICATION
Subject to the provisions herein, the Company and Consultant agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of
any representation, warranty, covenant, condition, or agreement of the
other party to this Agreement.
13. REMEDIES
Consultant and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance.
Such remedy, however, shall be cumulative and nonexclusive and shall be
in addition to any other remedy to which the parties may be entitled.
14. MISCELLANEOUS
(A) SUBSEQUENT EVENTS. Consultant and the Company each agree to
notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could
compromise its efforts and obligations under this Agreement.
(B) AMENDMENT. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) FURTHER ACTIONS AND ASSURANCES. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents as may be
reasonably necessary to effectuate the purposes of this
Agreement.
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(D) WAIVER. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this Agreement
to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to
enforce each and every such provision. No waiver of any breach
of or noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
(E) ASSIGNMENT. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other.
(F) NOTICES. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the communication
is addressed:
(i) In the case of the Company: College Software, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, X.X. X0X 0X0
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Att: Xxxxx Xxxxx, President
(ii) In the case of Consultant: Xxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, X.X. X0X 0X0
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated in writing by
the Company or Consultant to receive notice.
(G) HEADINGS. The section and subsection headings in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) GOVERNING LAW. This Agreement was negotiated and is being
contracted for in British Columbia, and shall be governed by
the laws of the Province of British Columbia, and Canada,
notwithstanding any conflict-of-law provision to the contrary.
(I) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
(J) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
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agreements, arrangements, or understandings between the
parties relating to the subject matter of this Agreement. No
oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express
or implied, other than as set forth herein, have been made by
any party.
(K) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(L) COUNTERPARTS. A facsimile, telecopy, or other reproduction of
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, by one or more parties hereto and such executed
copy may be delivered by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature
of or on behalf of such party can be seen. In this event, such
execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this
Agreement as well as any facsimile, telecopy or other
reproduction hereof.
(M) TIME IS OF THE ESSENCE. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
above date.
The "Company" "Consultant"
College Software, Inc.
A Florida Corporation Xxxxxx X. Xxxxx, Esq.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxx
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Name: Xxxxx Xxxxx (Signed)
Title: President
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