EX. 99.1
CONSULTING AGREEMENT
This Agreement is made effective January 15, 2004 by and between FTS
APPAREL, INC.("COMPANY"), and W. XXXXX XXXXXXX("CONSULTANT").
Now, Therefore in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, CONSULTANT and COMPANY
agree as follows:
COMPANY hereby retains CONSULTANT to assist COMPANY in enhancing its strategic
Internet marketing and business development. CONSULTANT, with COMPANIES
approval, will assist COMPANY in the following areas (the "Consulting
Services"):
1. STRATEGIC ALLIANCES - CONSULTANT will assist COMPANY in identifying and
implementing online strategic alliances in order to link with synergistic web
sites and derive additional web traffic for XxxXxxxxXxxxxx.xxx.
2. POINT OF SALE CONSULTING - CONSULTANT will assist COMPANY in launching
COMPANY'S POS software system including the creation and implementation of
inventory tracking processes, invoice creation, etc.
3. TARGETED MARKETING - CONSULTANT will design and implement customized
advertising and marketing programs in order to enhance COMPANY'S brand
recognition and product sales channel.
4. PARTNERSHIPS - CONSULTANT will assist COMPANY with identifying and
establishing corporate partnerships with target Fortune 500 companies in order
to establish and enhance brand credibility.
CONSULTANT will provide periodic reports to COMPANY regarding the Consulting
Services and consult with COMPANY on the status of the Consulting Services from
time to time on request.
II. COMPENSATION
CONSULTANT will receive directly from COMPANY, within 14 days of executing this
agreement, 1,000,000 shares of the COMPANIES common stock (the "shares").COMPANY
will register 1,000,000 with the Securities and Exchange Commission utilizing
Form S-8 or any other form COMPANY determines to use to register such shares
CONSULTANT shall be responsible for all out of pocket expenses unless
pre-approved, in writing, by COMPANY including travel expenses, third party
expenses, filing fees, copy and mailing expenses that CONSULTANT may incur.
III. TERM OF AGREEMENT, EXTENSIONS AND RENEWALS
This Consulting Agreement and CONSULTANT's obligation to continue providing
Consulting Services, as defined herein, shall remain in full force and effect
for 6-months from the date on which this agreement is executed by both
CONSULTANT and COMPANY.
IV. CLIENT REPRESENTATIONS AND INDEMNIFICATION
The COMPANY represents that all information provided to assist CONSULTANT in the
performance of CONSULTANT's duties under this Agreement shall be true and
correct. COMPANY shall disclose all material facts and shall not omit any facts
necessary to make statements made by COMPANY not misleading. COMPANY
acknowledges that CONSULTANT, in the performance of his obligations under this
Agreement, will be relying on the accuracy of information provided to him by
COMPANY and that persons dealing with CONSULTANT will also be relying on said
information. COMPANY hereby agrees to assume responsibility and liability for
the accuracy and completeness of information prepared by COMPANY and
disseminated on behalf of COMPANY by CONSULTANT which is later claimed to be
false and/or misleading in any material respect. CONSULTANT shall not
disseminate any materials or information on behalf of COMPANY without the prior
consent of COMPANY.
COMPANY further represents that the transactions regarding the issuance of its
stock pursuant to this Agreement are in compliance with existing federal
securities laws and regulatory requirements.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated hereby will not, violate any provision of
COMPANIES Articles of Incorporation or Bylaws. COMPANY represents that it has
taken all actions required by law, its Articles of Incorporation, or otherwise
to authorize the execution and delivery of this Agreement and the shares of
COMPANY's common stock to be delivered to CONSULTANT pursuant to the terms of
this Agreement; and that the person(s) executing this Agreement on behalf of the
COMPANY has full power, authority, and the legal right to execute same. This
Agreement constitutes a valid and binding obligation of the COMPANY.
The COMPANY agrees to indemnify, defend and hold the CONSULTANT, its officers,
employees, representatives and agents harmless against all claims, proceedings,
suits or other matters that are or might be asserted against CONSULTANT, its
officers, employees, representatives and agents by reason of CONSULTANT's
performance rendered pursuant to this Agreement on behalf of COMPANY and the
COMPANY agrees to pay the CONSULTANT's reasonable attorneys' fees and expenses
in connection with CONSULTANTS defense in any such matters; provided that the
CONSULTANT was acting within the scope of this Agreement and was not grossly
negligent in the performance of his duties hereunder.
V. CONSULTANT IS NOT AN AGENT OR EMPLOYEE
CONSULTANT's obligations under this Agreement consist solely of the Consulting
Services described herein. In no event shall CONSULTANT be considered the agent
of COMPANY or otherwise represent or bind COMPANY. For purposes of this
Agreement, CONSULTANT is an independent contractor. All final decisions with
respect to acts of COMPANY or its affiliates, whether or not made pursuant to or
in reliance on information or advice furnished by CONSULTANT hereunder, shall be
those of COMPANY or such affiliates and CONSULTANT shall, under no
circumstances, be liable for any expense incurred or loss suffered by COMPANY as
a consequence of such actions or decisions.
CONSULTANT is responsible for all taxes imposed on CONSULTANT as a result of the
receipt of the shares.
The COMPANY recognizes that CONSULTANT now renders or may in the future render
consulting services to other companies which may or may not conduct business and
activities similar to the COMPANY. CONSULTANT shall not be required to devote
his full time and attention to the performance of his duties under this
agreement, but shall devote only so much of his time and attention as shall be
reasonably necessary for such purposes.
VI. MISCELLANEOUS
AMENDMENT. This Agreement may be amended or modified at any time and in any
manner but only by an instrument in writing executed by the parties hereto.
WAIVER. All the rights and remedies of either party under this Agreement are
cumulative and not exclusive of any other rights and remedies provided by law.
No delay or failure on the part of either party in the exercise of any right or
remedy arising from a breach of this Agreement shall operate as a waiver of any
subsequent right or remedy arising from a subsequent breach of this
AGREEMENT. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
ASSIGNMENT. Neither party to this Agreement may assign any right or
obligation created by this Agreement without the prior written consent of the
other.
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 prepaid provided that the communication is addressed.
IN THE CASE OF COMPANY TO: FTS Apparel, Inc.
0000x Xxxxxx Xxxxxx Xx.
Xxxxxxxxx, Xx., 00000
Attn: Xxxxx Xxxxxxxxx
IN THE CASE OF CONSULTANT TO: W. Xxxxx XxXxxxx.
00 Xxxxx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxx XxXxxxx
HEADINGS AND CAPTIONS. The headings of paragraphs are included solely for
convenience. If a conflict exists between any heading and the text of this
Agreement, the text shall control.
ENTIRE AGREEMENT. This instrument and the exhibits to this instrument contain
the entire Agreement between the parties with respect to the transaction
contemplated by the Agreement. This Agreement may be executed in any number of
counterparts but the aggregate of the counterparts together constitute only one
and the same instrument.
EFFECT OF PARTIAL INVALIDITY. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be constructed as if it never contained any such invalid,
illegal or unenforceable provisions.
BINDING EFFECT. This Agreement shall be binding upon the parties hereto and
their respective heirs, successors and assigns.
ARBITRATION. Any controversy or claim arising out of or relating to the terms of
this Agreement, or otherwise related to the compliance by either party with its
obligations hereunder, shall be settled by binding arbitration in Pennsylvania.
CONTROLLING LAW. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the
Pennsylvania, without regard to conflicts of laws principles.
ATTORNEY'S FEES. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be
entitled to recover actual attorney's fees from the other party. The
attorney's fees may be ordered by Arbitration of any action described in this
paragraph.
TIME IS OF THE ESSENCE. Time is of the essence for each and every provision
hereof.
COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together shall be but a
single instrument. For purposes of this Agreement only, facsimile signatures
shall be considered original signatures.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day and
year written.
DATE: JANUARY 15, 2004
CONSULTANT COMPANY
/s/ W. Xxxxx XxXxxxx /s/ Xxxxx Xxxxxxxxx
------------------ -------------------
W.XXXXX XXXXXXX XXXXX XXXXXXXXX
