EXHIBIT 10.1
BUSINESS CONSULTING AGREEMENT
AGREEMENT, made and entered into as of the 4th day of January, 1999, by
and between Xcel Associates, Inc. a New Jersey Corporation, with offices located
at 000 Xxxxxx Xxxx, 0xx xxxxx, Xxxxxx, Xxx Xxxxxx 00000 ("XAI") and INSCI Corp.,
a Corporation with offices located at Two Xxxxxxxxxxx Xxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 01581("INSI").
W I T N E S S E T H:
WHEREAS, XAI provides consultation and advisory services;
WHEREAS, INSI desires to utilize XAI services in connection with
increasing the market awareness of INSCI's common stock.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, XAI and INSI hereby agree as follows:
Consulting Services. Effective as of January 4, 1999, by and subject to the
terms and conditions herein contained, XAI shall provide consultation and
advisory services relating to increasing the market awareness of INSCI's common
stock. These services will include, but are not limited to, presenting INSCI to
investors, retail brokers, analysts, institutional investors, establishing
meetings with INSCI and parties with buyside interest, preparing a company
profile and news article and placing INSCI news and company information on
investor news services and internet services.
Payment. In consideration for the services of XAI to be provided hereunder,
INSCI will pay XAI the sum of $5,000 per month for a period of six months
commencing with the execution of this Agreement. In addition, INSI agrees, at
its sole option, to either pay XAI the sum of $4,000 per month for the term of
this Agreement, or to grant 100,000 options (Options) to purchase INSCI Common
Stock at $1.04, the fair market value as of the date of this Agreement. This
option is first exercisable in one/sixth increments every thirty days over the
term of this agreement, with the first increment being the date of this
Agreement.
3. Expenses. INSI shall reimburse XAI for all pre-approved travel and other
expenses incurred by it in rendering services hereunder, including any expenses
incurred by consultants when such consultants are temporarily located outside of
the metropolitan New York, area for the purpose of rendering services to or for
the benefit of INSI pursuant to this Agreement. XAI shall provide receipts and
vouchers to INSI for all expenses for which reimbursement is claimed.
4. Invoices. All pre-approved invoices for services provided to INSI and
expenses incurred by XAI in connection therewith shall be payable in full within
ten (10) days of the date of such invoice.
5. Personnel. XAI shall be an independent contractor and no personnel utilized
by XAI in providing services hereunder shall be deemed an employee of INSI.
Moreover, neither XAI nor any such person shall be empowered hereunder to act on
behalf of INSI. XAI shall have the sole and exclusive responsibility and
liability for making all reports and contributions, withholdings, payments and
taxes to be collected, withheld, made and paid with respect to persons providing
services to be performed hereunder on behalf of INSI, whether pursuant to any
social security, unemployment insurance, worker's compensation law or other
federal, state or local law now in force and effect or hereafter enacted.
XAI Assistance. INSI agrees to provide XAI with such secretarial, clerical and
bookkeeping assistance as XAI may reasonably request and shall otherwise
cooperate with XAI personnel in their rendering of services hereunder. INSI
further agrees to provide XAI monthly a shareholders list.
7. Term and Termination. This Agreement shall be effective from January 4, 1999,
and shall continue in effect for a period of six months thereafter. This
Agreement may be renewed upon mutual agreement of the parties.
8. Non-Assignability. The rights, obligations, and benefits established by this
Agreement shall not be assignable by either party hereto. This Agreement shall,
however, be binding upon and shall inure to the benefit of the parties and their
successors.
9. Confidentiality. Neither XAI nor any of its consultants, other employees,
officers, or directors shall disclose knowledge or information concerning the
confidential affairs of INSI with respect to INSI's business or finances that
was obtained in the course of performing services provided for herein.
10. Limited Liability. Neither XAI or INSCI nor any of their respective
consultants, other employees, officers or directors shall be liable for
consequential or incidental damages of any kind to each other that may arise out
of or in connection with any services performed by XAI hereunder.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without giving effect to the
conflicts of law principles thereof or actual domicile of the parties.
12. Notice. Notice hereunder shall be in writing and shall be deemed to have
been given at the time when deposited for mailing with the United States Postal
Service enclosed in a registered or certified postpaid envelope addressed to the
respective party at the address of such party first above written or at such
other address as such party may fix by notice given pursuant to this paragraph.
13. No other Agreements. This Agreement supersedes all prior understandings,
written or oral, and constitutes the entire Agreement between the parties hereto
with respect to the subject matter hereof. No waiver, modification or
termination of this Agreement shall be valid unless in writing signed by the
parties hereto.
IN WITNESS WHEREOF, INSI and XAI have dully executed this Agreement as of the
day and year first above written.
INSCI CORP.
By: /s/ E. Xxx Xxxxxx
----------------------------
Dr. E. Xxx Xxxxxx, Chairman
XCEL ASSOCIATES, INC.
By: /s/ Xxxxxx x. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, President
OPTION AGREEMENT
THIS AGREEMENT, made as of this 4th day of January 1999, by and between
INSCI Corp. (Company) a Corporation, with its principal place of business
located at INSCI Corp., a Corporation with offices located at Two Xxxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 and XCEL ASSOCIATES, Inc., a New Jersey
Corporation having its principal office at 000 Xxxxxx Xxxx, 0xx xxxxx, Xxxxxx,
Xxx Xxxxxx 00000, a consultant to the Company (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company, in accordance with the Business Consulting
Agreement executed by the Company and Optionee on January 4, 1999, grants to the
Optionee, in lieu of cash payments of $4,000 per month for a period of six
months, for services to be provided by the Optionee, options to purchase shares
of the Company's Common Stock.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties agree as follows:
1. Grant of Options. Subject to all terms and conditions of this
Agreement and the Business Consulting Agreement executed by the Company and
Optionee on January 4, 1999, the Company hereby grants to the Optionee the right
and option (the "Option") to purchase all or any part of an aggregate of one
hundred thousand (100,000) shares (the "Shares") of Common Stock at $1.04, the
fair market value of the Common Stock at the date of this grant. The Option is
first exercisable in one/sixth increments every thirty days over the term of
this agreement, with the first increment being the date of this Agreement.
2. Expiration. The Option may not be exercised after January 1, 2002
(the "Expiration Date").
3. Exercise of Option. The Option is first exercisable in one/sixth
increments every thirty days over the term of this agreement, with the first
increment being the date of this Agreement. Subject to the aforementioned
condition, the Option may be exercised, in whole or in part, at any time prior
to the Expiration Date or the earlier termination of the Option. If the Option
is not exercised to the maximum extent permissible, it shall be exercisable, in
whole or in part, with respect to all Shares not so purchased at any time prior
to the Expiration Date or the earlier termination of the Option.
4. Payment of Purchase Price Upon Exercise. The Option granted under
this Agreement may be exercised in whole or in part by the Optionee's delivering
or mailing to the Company at its principal office, or such other place as the
Company may designate, written notice of exercise duly signed by the Optionee.
Such exercise shall be effective upon (a) receipt of such written notice by the
Company and (b) payment to the Company of the full purchase price in cash.
5. Issuance and Delivery. The Optionee's written notice to the Company
shall state the number of Shares with respect to which the Option is being
exercised and specify a date, not less than five (5) or more than fifteen (15)
business days after the date of the mailing of such notice, on which the Shares
will be taken and payment made therefor. On the date specified in the notice of
exercise, the Company shall deliver, or cause to be delivered, to the Optionee
(or his personal representative, as the case may be) stock certificates for the
number of Shares with respect to which the Option is being exercised, against
receipt of payment therefor. Certificates evidencing the Shares issued upon
exercise of the Option may contain such legends reflecting any restrictions upon
transfer of the Shares evidenced thereby as in the opinion of counsel to the
Company may be necessary for the lawful and proper issuance of such
certificates. Delivery of the Shares may be made at the office of the Company or
at the office of a transfer agent appointed for the transfer of shares of Common
Stock.
6. Transferability. The Option shall not be transferable. The Option
shall not be subject, in whole or in part, to attachment, execution or levy of
any kind.
No Rights as a Shareholder. Neither the Optionee nor his legal representative
shall be, nor have any of the rights or privileges of, a shareholder of
the Company in respect of any of the Shares, unless and until
certificates representing such Shares shall have been issued and
delivered to the Optionee (or his legal representative).
Adjustment. (a) In case, prior to the expiration of the Option by exercise or by
its terms, the Company subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then, in either of such
cases, the purchase price per share of the Shares issuable upon
exercise of the Option in effect at the time of such action shall be
proportionately reduced and the number of Shares at that time
purchasable pursuant to the Option shall be proportionately increased;
and conversely, in the event the Company shall contract the number of
outstanding shares of Common Stock by combining such shares into a
smaller number of shares, then, in such case, the purchase price per
share of the Shares issuable upon exercise of the Option in effect at
the time of such action shall be proportionately increased and the
number of Shares at that time purchasable pursuant to Option shall be
proportionately decreased.
(b) In case, prior to the expiration of this Option by exercise or by
its terms, the Company or a successor corporation shall be consolidated
or merge with or convey all or substantially all of its or of any
successor corporation's property and assets to any other corporation or
corporations (any such corporation being included within the meaning of
the term "successor corporation" in the event of any consolidation or
merger of any such corporation with, or the sale of all or
substantially all of the property of any such corporation to, another
corporation or corporations), in exchange for stock or securities of a
successor corporation, and if the Company is not the surviving Company,
the Optionee shall thereafter have the right to purchase upon the terms
and conditions and during the time specified in this Option, in lieu of
the Shares theretofore purchasable upon the exercise of this Option,
the kind and amount of shares of stock and other securities receivable
upon such consolidation, merger or conveyance by a holder of the number
of shares of Common Stock which the Optionee might have purchased
immediately prior to such consolidation, merger or conveyance. In the
event of a sale of the Company, all options shall vest immediately
prior to such sale and are exercisable by the Optionee at his election.
9. Compliance with Law and Regulations. The Option and the obligation
of the Company to sell and deliver Shares hereunder shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any governmental or regulatory agency as may be required. The Company shall
not be required to issue or deliver any certificates for Shares prior to (i) the
listing of such Shares on any stock exchange on which the Common Stock may then
be listed and (ii) the completion of any registration or qualification of such
Shares under any federal or state law, or any rule or regulation of any
government body which the Board of Directors of the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, the Option may not
be exercised if its exercise or the receipt of Shares pursuant thereto, would be
contrary to applicable law.
10. Investment Representation. The Board of Directors of the Company
may require the Optionee to furnish to the Company, prior to the issuance of any
Shares upon the exercise of any Option, an agreement (in such form as the Board
of Directors may specify) in which the Optionee represents that the Shares
acquired by the Optionee upon exercise are being acquired for investment and not
with a view to the sale or distribution thereof.
11. Continued Services. Neither this Agreement nor any Option granted
hereunder shall confer upon the Optionee any right to continue to render
services to the Company or any subsidiary of the Company, or limit in any
respect the right of the Company, the Board of Directors of the Company or any
subsidiary of the Company to terminate the services of the Optionee at any time.
12. Notices. Any notice hereunder to the Company shall be addressed to
it at its offices, Two Xxxxxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 Attn.:
Dr. E. Xxx Xxxxxx Chairman & CEO and any notice hereunder to Optionee shall be
addressed to Xxxxxx X. Xxxxxx, President, at 000 Xxxxxx Xxxx, 0xx xxxxx, Xxxxxx,
Xxx Xxxxxx 00000, subject to the right of either party to designate at any time
hereafter in writing some other address.
13. Governing Law. This Agreement shall be interpreted, and the rights
and liabilities of the parties hereto determined, in accordance with the
internal laws of the State of New Jersey, without regard to the conflicts of law
principles thereof.
14. Counterparts. This Agreement may be executed in two counterparts
each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have signed this Agreement as of
the date and year first above written.
INSCI CORP.
By: /s/ E. Xxx Xxxxxx
----------------------------
Dr. E. Xxx Xxxxxx, Chairman
XCEL ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, President
