Exhibit (10)(1)
CONSULTING AGREEMENT
This Consulting agreement (the "Agreement") is made as of this 15th day of
August, 2003 by and between Consult & Coach US, Xxxxxx Xxxxxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxx xxx Xxx, XX 00000 ("Consultant") and Marketing Worldwide
Corporation, a Delaware corporation ("Company"), whose principal place of
business is 0000 XxxXxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000
WHEREAS:
1. Consultant is willing and capable of providing on a "best efforts" basis
various consulting services for potential business development, execution of a
"Reverse Merger" and fund raising activities for and on behalf of Company.
2. Company desires to retain Consultant as an independent consultant and
Consultant desires to be retained in that capacity upon the terms and conditions
hereinafter set forth.
3. The Company and Consultant acknowledge that Consultant currently owns 200,000
shares of the Company's common stock.
NOW THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONSULTING SERVICES. Company hereby retains Consultant as an
independent consultant to Company and Consultant hereby accepts and
agrees to such retainer. Consultant shall render to Company services of
an advisory or consultative nature in order to identify, generate and
aid in the executing of potential business development opportunities
for the Company, specifically executing all preparations for the
execution of a "Reverse Merger", agreements to raise funds for the
operations of the Company and/or other merger and acquisition
opportunities, such as the Company being acquired by, or acquiring
another entity. Consultant will from time to time issue verbal or
written reports to inform Company on Consultant's activities.
2. TIME, PLACE AND MANNER OF PERFORMANCE. Consultant shall be available
for advice and counsel to the officers and directors of Company at such
reasonable and convenient times and places as may be mutually agreed
upon.
3. TERM. The term of this Agreement shall commence as of the date hereof
and continue until October 31, 2003 and then renew itself automatically
for additional one-year terms, unless terminated in accordance with
Paragraph 7 below. Entering into agreements with entities proposed by
Consultant is at Company's discretion.
4. COMPENSATION. In consideration of these services, Company shall pay
Consultant five percent in stock in the public entity being established
(i.e. 5% of 10,000,000 shares = 500,000 shares) and seven and a half
percent (7.5%) in cash of any cash amounts received pre or post of the
merger transaction, or in common stock of any additional non-cash value
created in connection with transactions initiated by the Consultant.
While the decision to enter into any agreement is at the Company's sole
discretion, the Company agrees not to unreasonably withdraw from
execution of the reverse merger, if the terms are substantially similar
to the terms outlined in Schedule A.
The Company will pay consultant the amount of $4,000 per month, such
payments to be made at the 1st of each month beginning immediately
following the closing of any transaction or November 1, 2003. In
addition Company will grant Consultant options to purchase 200,000
shares of the common stock of the Company at a strike price to be
mutually agreed upon no later than thirty (30) days after the execution
of the merger and not to exceed 150% of the share price at that date,
as a general consulting fee, such options to be issued at the request
of the Consultant.
5. VESTING. Any shares granted to the Consultant under this agreement will
vest fully and immediately on the date of issuance.
6. EXPENSES. All expenses incurred by Consultant in connection with the
services, except Consultants general office expenses, will be borne by
the Company; amounts in access of $500. - need to be approved in
advance by Company.
7. TERMINATION. This agreement may be terminated at any point after
October 31, 2003, by Consultant or Company upon ninety (90) days prior
written notice.
8. DISCLOSURE OF INFORMATION. Consultant and Company both recognize and
acknowledge that they have and may have access to certain confidential
information that are valuable, special and unique assets and property
of Consultant and Company and such affiliates. Both parties will not,
during or after the term of this Agreement, disclose, without the prior
written consent or authorization of the other party, any of such
information to any person, except to representatives of parties, for
any reason or purpose whatsoever. In this regard, the parties agree
that such authorization or consent to disclosure may be conditioned
upon the disclosure being made pursuant to a secrecy agreement,
protective order, provision of statute, rule, regulation or procedure
under which the confidentiality of the information is maintained in the
hands of the person to whom the information is to be disclosed or in
compliance with the terms of a judicial order or administrative
process.
9. NATURE OF RELATIONSHIP. It is understood and acknowledged by the
parties that Company is retaining Consultant in an independent capacity
and that in this connection Consultant hereby agrees not to enter into
any agreement or incur any obligation on behalf of Company without the
written consent of Company. Company acknowledges that Consultant is now
and may in the future be involved in a number of business and
investment activities for third parties in connection with which
Consultant provides services similar to the services to be provided by
Consultant hereunder and will continue to be involved in such
activities.
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10. CONFLICT OF INTEREST NONINTERFERENCE WITH BUSINESS. Consultant shall be
free to perform services for other persons provided that it shall
obtain Company's prior written approval if it intends to provide
consulting services for any other person which may conflict with its
obligations hereunder. Consultant also agrees not to disclose any
confidential information to such persons and during and for a period of
one (1) year immediately following the termination of this Agreement by
either party, not to solicit or induce any employee or independent
contractor or general business relationship to terminate or breach an
employment, or to prevent and/or terminate a contractual or other
relationship with Company.
11. INDEMNIFICATION BY COMPANY. Company agrees to indemnify and hold
harmless Consultant against any losses, claims, damages, liabilities
and/or expenses (including any legal or other expenses reasonably
incurred in investigating or defending any action or claim in respect
thereof) to which Consultant may become subject to arising from this
Agreement or the actions of Company or any of its directors, officers
or affiliates. Company will comply with all of the applicable laws of
the Securities Act of 1933 and the Securities Exchange Act of 1934, as
amended.
12. INDEMNIFICATION BY CONSULTANT. Consultant agrees to indemnify and hold
harmless Consultant against any losses, claims, damages, liabilities
and/or expenses (including any legal or other expenses reasonably
incurred in investigating or defending any action or claim in respect
thereof) to which the Consultant may become subject to arising from
this Agreement or the actions of Consultant or any of its directors,
officers or affiliates. Consultant will comply with all of the
applicable laws of the Securities Act of 1933 and the Securities
Exchange Act of 1934, as amended.
12. WAIVER OF BREACH. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
13. ASSIGNMENT. This Agreement and the rights and obligations of the
parties hereunder shall not be assigned without the prior written
approval of the other and shall inure to the benefit of and shall be
binding upon their successors and assigns.
13. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by
any competent court, the Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
14. ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the
parties. This Agreement is governed by the laws of California.
15. WAIVERS AND MODIFICATION. Any waiver, alteration or modification of any
of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties hereto. Each party hereto, from time
to time, may waive any of its rights hereunder without affecting a
waiver with respect to any subsequent occurrences or transactions
hereof.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which taken together
shall constitute but one and the same document.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first above written.
Xxxxxx Xxxxxxxx Marketing Worldwide Corporation
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxx
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President Xxxxxxx X. Xxxx, President
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