CONSULTING AGREEMENT
AGREEMENT, made as of this 4th day of October, 1996, by and between
ComTec International, Inc. (and or its successor), (the "Company"), and Xxxxxx
X. Xxxxxxxxx Associates, Inc. ("Consultant").
WHEREAS, the Company desires professional guidance and advice regarding
financial matters of all types and particularly in business plan development,
and management services( more specifically, settling debts, reorganizing
company, negotiating contracts, etc.) with regard to its wholly owned
subsidiary, GPS Communications, Inc. ("GPS"); and
WHEREAS, Consultant has expertise in the area of corporate finance and
is willing to act as a consultant to the Company upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties hereto agree as follows:
1. Duties, Scope of Agreement, and Relationship of the Parties.
(a) The Company hereby agrees to retain Consultant as an advisor
and consultant on financial matters, consistent with
Consultant's expertise and ability, and Consultant agrees to
consult with the Company during the term of this Agreement.
All parties understand that Consultant has many other business
interests and will devote as much time as in its discretion is
necessary to perform its duties under this Agreement. In
addition, the Company understands that Consultant's efforts on
behalf of its other interests are the sole and separate
property of Consultant.
(b) The services rendered by Consultant to the Company pursuant to
this Agreement shall be as an independent contractor, and this
Agreement does not make Consultant the employee, agent, or
legal representative of the Company for any purpose
whatsoever, including without limitation, participation in any
benefits or privileges given or extended by the Company to its
employees. No right or authority is granted to Consultant to
assume or to create any obligation or responsibility, express
or implied, on behalf of or in the name of the Company. The
Company shall not withhold for Consultant any federal or state
taxes from the amounts to be paid to Consultant hereunder, and
Consultant agrees that it will pay all taxes due on such
amounts.
2. Compensation.
(a) For its faithful performance of the undertakings and
obligations to be performed by it hereunder, the Company shall
pay Consultant a fee of $100,000 for services to be performed
over the next twelve (12) month period for the Company.
Included in the above fee is $25,000 for services rendered to
date for past GPS projects and activities. Such compensation
shall be paid in the form of the Company's common stock at 70%
of the closing bid price on date of issuance. The stock shall
be registered by the Company on a Form S- 8 registration
statement with the SEC, making such stock freely tradable.
Such stock shall be issued as follows:
Share price = $.70
[initialed by
parties]
To be issued on date of signing this agreement:
(1) $25,000 for the obligation owed by GPS.
[Xxxxxx X. Xxxx'x initials]
(2) $18,750 for the first 90 days of services to be
performed hereunder, and
(3) $6,250 per month thereafter as long as this agreement
is in force or until the expiration of the 12-month
period ending from the date of this agreement,
whichever occurs first.
(b) In addition, Company agrees to give Consultant stock options
on an additional 100,000 shares of the Company's of common
stock. The shares of stock acquired with such options shall
have piggyback rights and be registered in the event the
Company files a registration statement with the SEC for the
public sale of its securities. The options shall be
exercisable at 70% of the offering price of the public
offering of stock.
(c) All stock issued and registered under any Form S-8
registration shall be held by the Company and liquidated as
deemed appropriate as not to adversely effect the market value
of the stock.
3. Expenses. The Company shall reimburse Consultant for all reasonable and
necessary expenses incurred by it in carrying out its duties under this
Agreement, provided Consultant submits related receipts and documentation with
its request for reimbursement and obtains approval from the Company.
4. Renewal; Termination.
(a) This Agreement shall continue in effect for a period of at
least one(1) year from the date hereof.
(b) Subject to the continuing obligations of Consultant under
Section 5 below, either party may terminate this Agreement at
any time if the other party shall fail to fulfill any material
obligation under this Agreement and shall not have cured the
breach within 10 days after having received written notice
thereof by registered mail.
(c) Termination or expiration of this Agreement shall not
extinguish any rights of compensation that shall accrue prior
to the termination.
5. Confidential Information.
(a) "Confidential Information," as used in this Section 5, means
information that is not generally known and that is
proprietary to the Company or that the Company is obligated to
treat as proprietary. This information includes, without
limitation:
(i) trade secret information about the Company and its
products;
(ii) information concerning the Company's business as the
Company has conducted it since the Company's
incorporation or as it may conduct it in the future;
and
(iii) information concerning any of the Company's past,
current, or possible future products, including
(without limitation) information about the Company's
research, development, engineering, purchasing,
manufacturing, accounting, marketing, selling, or
leasing.
[Xxxxxx X. Xxxx'x initials]
(b) Any information that Consultant reasonably considers
Confidential Information, or that the Company treats as
Confidential Information, will be presumed to be Confidential
Information (whether Consultant or others originated it and
regardless of how it obtained it).
(c) Except as required in its duties to the Company, Consultant
will never, either during or after the term of this Agreement,
use or disclose Confidential Information to any person not
authorized by the Company to receive it.
(d) If this Agreement is terminated, Consultant will, after being
paid all amounts due it, promptly turn over to the Company all
records and any compositions, articles, devices, apparatus and
other items that disclose, describe, or embody Confidential
Information, including all copies, reproductions, and
specimens of the Confidential Information in its possession,
regardless of who prepared them. The rights of the Company set
forth in this Section 5 are in addition to any rights of the
Company with respect to protection of trade secrets or
confidential information arising out of the common or
statutory laws of the State of Colorado or any other state or
any country wherein Consultant may from time to time perform
services pursuant to this Agreement. This Section 5 shall
survive the termination or expiration of this Agreement.
6. False or Misleading Information. The Company warrants that it will provide
Consultant with accurate financial, personal, corporate, and other data required
by Consultant and necessary for full disclosure of all facts relevant to any
efforts toward the preparation of the Business Plan and any offering. Such
information shall be furnished promptly upon request. If the Company fails to
provide such information, or if any information provided by the Company to
Consultant shall be false or misleading, or if the Company omits or fails to
provide or withholds relevant material information to Consultant or to any
professionals engaged pursuant to paragraph 3 above, then, in such event, any
and all fees paid hereunder will be retained by Consultant as liquidated damages
and this Agreement shall be null and void and Consultant shall have no further
obligation hereunder. Further, by execution of this Agreement, the Company
hereby indemnifies Consultant from any and all costs for expenses or damages
incurred and holds Consultant harmless from any and all claims and/or actions
that may arise out of providing false or misleading information or by omitting
relevant information in connection with the private offering and/or public
offering outlined herein.
7. Miscellaneous.
(a) Successors and Assigns. This Agreement is binding on and
inures to the benefit of the Company, its successors and
assigns, all of which are included in the term the "Company"
as it is used in this Agreement and upon Consultant, its
successors and assigns. Neither this Agreement nor any duty or
right hereunder will be assignable or otherwise transferable
by either party without the written consent of the other
party, except that the Company shall assign this Agreement in
connection with a merger, consolidation, assignment, sale or
other disposition of substantially all of its assets or
business. This Agreement will be deemed materially breached by
the Company if its successor or assign does not assume
substantially all of the Company's obligations under this
Agreement.
(b) Modification. This Agreement may be modified or amended only
by a writing signed by both the Company and Consultant.
(c) Governing Law. The laws of Colorado will govern the validity,
construction, and performance of this Agreement. Any legal
proceeding related to this
[Xxxxxx X. Xxxx'x initials]
Agreement will be brought in an appropriate Colorado court,
and both the Company and Consultant hereby consent to the
exclusive jurisdiction of that court for this purpose.
(d) Construction. Wherever possible, each provision of this
Agreement will be interpreted so that it is valid under the
applicable law. If any provision of this Agreement is to any
extent invalid under the applicable law, that provision will
still be effective to the extent it remains valid. The
remainder of this Agreement also will continue to be valid,
and the entire Agreement will continue to be valid in other
jurisdictions.
(e) Waivers. No failure or delay by either the Company or
Consultant in exercising any right or remedy under this
Agreement will waive any provision of the Agreement, nor will
any single or partial exercise by either the Company or
Consultant of any right or remedy under this Agreement
preclude either of them from otherwise or further exercising
these rights or remedies, or any other rights or remedies
granted by any law or any related document.
(f) Captions. The headings in this Agreement are for convenience
only and do not affect this Agreement's interpretation.
(g) Entire Agreement. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings, and
understandings between the parties concerning the matters in
this Agreement.
(h) Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and sent by
registered first-class mail, postage prepaid, and shall be
effective five days after mailing to the addresses stated
below. These addresses may be changed at any time by like
notice.
In the case of the the Company: In the case of Consultant:
ComTec International, Inc. Xxxxxx X. Xxxxxxxxx Associates,
Inc.
00000 X. Xxxxxxx Xxxxx Xxxxxxxx Xxxxx 0, Xxxxx 000
Xxxxxx, XX 00000 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
"The Company" "Consultant"
ComTec International, Inc. Xxxxxx X. Xxxxxxxxx Associates, Inc.
By:/s/Xxxxxx X. Xxxx By:/s/Xxxxxx X. Xxxxxxxxx
