CONSULTING AGREEMENT
Exhibit 10.4
This Consulting Agreement is being entered into as of July 1, 2007, by and between Xxxxxxx X. Xxxxx
(hereinafter “Consultant”) and SearchPath International, Inc. (hereinafter “the Company”), whereby
the Company has agreed to retain the services of the Consultant under the terms and conditions as
set forth within the Consulting Agreement.
It is hereby acknowledged that the Company is desirous of retaining the services of the Consultant
for assistance in various matters pertaining to corporate growth, and public relations of the
Company, and that the Consultant has agreed to provide such services to the Company in exchange for
the due consideration as outlined within the subsequent portions of this Agreement.
Section 1. Description of Consulting Services
Under the terms and conditions of this Agreement the Consultant has agreed to act in an advisory
capacity to the Company and to provide such services in exchange for the due consideration as set
forth within this Agreement. The scope of such services shall be described as providing general
assistance to the Company in the areas of investor relations and various other matters as
pertaining to growth and the enhancement of shareholder value.
Whereas the Consultant has agreed to act in an advisory capacity to the Company, the company
understands and hereby acknowledges the fact that this is a non-exclusive arrangement, and that the
Consultant is free to enter into any other such consulting and/or business agreement as he may deem
necessary and desirable at any time. Such agreements may include additional consulting agreements,
outside business ventures and/or investments as well as any other type of business and/or personal
activity as the Consultant may desire. The Consultant shall maintain the right to enter into any
such outside agreements and ventures, at his sole discretion.
As a further provision of this Agreement both the Consultant and the Company acknowledge and agree
that there will not be any specific time requirement for utilization by either party, and that the
consideration that is due the Consultant under the terms of this Agreement is unrelated to the
amount of time that is spent providing such consulting services, and is considered as a fixed cost
of this Agreement.
Section 2. Disclaimers
In recognition and mutual acknowledgement of the fact that the Company is a company in its
development stage and is further engaged in a business of a highly speculative nature with little
or no current revenues, income or liquid market for its stock at this time the Consultant makes no
representations, warranties or other affirmations as to the efficacy, viability and/or success of
any efforts that may be undertaken on the Company’s behalf, and the Company hereby acknowledges,
accepts and understands such disclaimers as made by the Consultant.
Section 3. Due Consideration
As due consideration for the consulting services as provided by the Consultant to the Company under
the terms and conditions as set forth within this Agreement, the company hereby agrees to the
timely payment to the Consultant a signing retainer in the amount of fifteen percent (15%) of the
stock in the company and any of its successor entities, upon the execution of this Agreement.
In addition, the Company shall pay for all legal expenses associated with Consultant’s services
provided in accordance with this Agreement. Finally, the Company shall pay to the Consultant a
“bonus” in the Company’s sole discretion.
Section 4. Timely Payment
As a condition of this Agreement it is hereby understood that all obligations as incurred by the
Company shall be paid to the Consultant in a timely manner. It is acknowledged that all such
obligations shall become due and payable within the following timeframes:
| a. | The signing retainer shall become due and payable upon the execution of this Agreement; | ||
| b. | Any other expenses shall be considered as becoming due and payable upon notification to the Company by the Consultant. |
Section 5. Conditions of Default
In the event that the Company fails to meet the Timely Payment and/or Due Consideration sections of
this Agreement it shall be considered to be in default of its payment obligations to the
Consultant. In the event of a default the Consultant shall have the obligation to inform the
Company of such a default in writing, and shall grant the Company a period not to exceed ten (10)
business days within which it may move to cure such a condition through the payment of any and all
outstanding obligations to the Consultant.
In the event that the Company fails to cure such a default the Company shall be considered to be in
breach of its contractual obligations to the Consultant, resulting in the following penalties:
| a. | The Consultant shall have no further obligation to the Company as a result of this Agreement and shall be released from any and all obligations to the Company immediately upon the notification to the Company of its default and the Company’s subsequent failure to cure said default within the agreed upon timeframe. | ||
| b. | Upon default by the Company to the Consultant under any of the terms and conditions as outlined within this Agreement all such monies, retainers, expenses, and/or bonuses as have been earned or as may have been earned as a result of the successful completion of this Agreement as well as any extensions thereof, shall become due and payable upon an accelerated basis immediately upon notification to the Company by the Consultant of any such default, and its subsequent lack of cure. In the event of a default and/or breach of this Agreement by the Company any and all monies that may have been earned by the Consultant shall become immediately due and payable. |
Section 6. Term of the Agreement
The term of this Consulting Agreement shall run for a period of three years (3) from the date of
its execution by all parties, with additional options for extension thereafter by mutual and
written consent. Throughout the initial term of this Agreement either party shall maintain the
right to terminate the Agreement for any reason through the forwarding of a written notification to
the other party, with the termination becoming effective upon the receipt by the other party of
such written notification. Regardless of the reason for termination the Consultant shall not be
required to tender any Shares back to the Company.
Section 7. Transfer of Assets, Merger
Notwithstanding anything to the contrary herein, if (a) all or substantially all of the assets of
the Company should be transferred (either by sale, exchange, foreclosure, liquidation, dissolution,
repurchase or other disposition) to a corporation or other entity without the prior consent of the
Consultant, this Agreement shall also continue to be binding upon both the Consultant as well as
the transferee corporation and/or entity, and the Company shall make adequate provisions within
such transactional documentation for the assignment and assumption of this Agreement, with the
Company remaining jointly and severally liable hereunder.
Section 8. Liability and Indemnification
Because the duties and services of the Consultant may require and/or be uncontrollably influenced
by the decisions of third parties, no statement, representation or warranty can be or is made by
the Consultant as to the result of his services. The Consultant shall not be held liable, whether
in contract, tort, negligence or otherwise for any special, indirect, economic or consequential
damages or for any damages arising from or attributable to the failure to realize the goals of the
Company and/or its affiliates profits, cash flows, savings, loss of data, capital downtime, loss of
use, loss of goodwill, loss of anticipated or actual revenue or profit, or any other economic
dislocation whatsoever. The Consultant shall not, under any circumstance whatsoever, be held as
liable to the Company or any person or entity for any mistakes, errors in judgment or for any act
or omission believed by it in good faith to be within the scope of its authority hereunder,
regardless of whether such act or omission in any way fails to achieve the purposes of this
Agreement, or for any other claim or theory advanced by any such person or entity.
The Consultant shall be indemnified and held harmless by the Company and any of its affiliates from
all loss, cost or expense in respect to any and all such claims, such parties advancing or paying
as incurred all such loss, cost or expense of the Consultant. The Consultant is not exculpated
hereby to the extent that it would be liable to the Company for fraud in the performance of its
duties and services hereunder. The Consultant shall not be held to have incurred any liability to
the Company or any person or entity by virtue of any action taken by him or allegedly failed to be
taken by him in the good faith attempt to discharge its duties and services. In no event shall any
liability of the Consultant exceed the value of the total compensation and consideration (excluding
any reimbursement for expenses) as set forth under the terms and conditions of this Agreement and
as already paid to the Consultant thereunder.
Section 9. Authority
The Company and any affiliates hereby warrant and represent that they have the full power and
authority to execute and deliver this Agreement to the Consultant and to perform the obligations as
contained herein, and that this Agreement has been duly authorized, executed and delivered by the
Company and any affiliates and further constitutes and valid, binding and legally enforceable
obligation of the Company and any affiliates. Each party has read and understood this Agreement.
Section 10. Notices, etc.
All notices and other communications hereunder shall be in writing and shall be deemed to have been
given either; when hand delivered to the addressee’s office, or three (3) days after being mailed
by first class, registered or certified mail, postage prepaid, addressed as follows:
| a. | If to the Consultant to: Xxxxxxx X. Xxxxx, 0000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000, or to any other such person(s) and/or addresses as may be furnished, in writing, to the Company by the Consultant | ||
| b. | If to the company to: SearchPath International, 0000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000, or to any other such person(s) and/or addresses as may be furnished, in writing to the Consultant by the Company |
Section 11. Entire Agreement
The parties hereto agree that this Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, that that this Agreement supersedes any and all prior
agreements and understandings between the parties with regard to such subject matter, and that
there are no restrictions, agreements, arrangements, either oral or written, between the parties
relating to the subject matter hereof which are not fully and accurately expressed or referred to
herein.
Section 12. Waivers
Any waiver of the terms and/or conditions as set forth within this Agreement shall not operate as a
waiver of any other breach or claim of such terms or conditions or any other term or condition, nor
shall any failure to enforce any provisions hereof operate as a waiver of such provision or of any
other provision hereof. No waiver, unless it by its own terms explicitly so provides, shall be
construed to effect a continuing waiver in any other instance or for any other purpose, or impair
the right of the party against whom such waiver is claimed, in all other instances or for all other
purposes, to require full compliance with such provision.
Section 13. Further Amendments
Each of the parties hereto agrees to execute all such further instruments and documents and to take
all such further action as the other party may reasonably require in order to effectuate the terms,
conditions and purposes of this Agreement.
Section 14. Amendments
This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing fully executed by the party against whom
enforcement of any amendment, waiver, change, modification, consent or discharge is sought.
Section 15. Assignment; Successors and Assigns
This Agreement shall, except as hereinafter or as in Section 7 provided, not be assignable by
either party without the receipt of the prior written consent of the other; provided however that
this Agreement may be assigned by the Consultant to any subsidiary and/or affiliated company of the
Consultant, with such assignment releasing the assignor. This Agreement may also be assigned
pursuant to a sale of substantially all of the assets of the Consultant’s practice with or to a
party acceptable to the Company, which party shall have assumed the Consultant’s obligations
hereunder pursuant to an agreement in form and substance reasonably satisfactory to the Company.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their
respective successors in interest (whether by merger, consolidation or similar transaction), and
permitted assigns.
Section 16. No Partnership Authority
Nothing as contained within this Agreement is intended to create, nor shall any provision hereof be
construed so as to create, a partnership, joint venture, coadventure or joint undertaking by and
among the Consultant and the Company, or to further constitute the consultant as an agent of the
Company, it being the express intention of the parties hereto that the relationship created hereby
shall be that of separate and independent contractors acting at all times in their sole and
individual capacities. The Consultant shall have no authority to act on behalf of the Company in
any matter except as expressly outlined within this Agreement, or as may be agreed upon otherwise,
in writing.
Section 17. Access; Assistance; Information: Compliance with Law
| a. | In connection with the Consultant’s engagement as contemplated by and through this Agreement the Company and any affiliates hereby agree to furnish the Consultant and any of his designates with all information concerning the Company and any affiliates which the Consultant reasonably deems as being appropriate, and will provide the Consultant with access to, assistance from, availability for communications and meetings with, the Company’s and any affiliates files, officers, directors, accountants, counsel, investment bankers, broker-dealers, marketmakers and other outside advisors. The Company represents and warrants to the Consultant that all such information is and will be truthful and accurate in all material respects and that it does not nor will not contain any untrue statement of a material fact, or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances under which such statements are made. The Company acknowledges that the Consultant will be utilizing and relying upon the accuracy and completeness of the information supplied by or on behalf of the Company and its officers in connection with its engagement without independent verification, and that the Consultant does not assume responsibility for the accuracy |
| and completeness of any such information. The Company will promptly notify the Consultant in writing in the event that it learns of any material inaccuracy in or material omissions from, any information as previously delivered to the Consultant, including, particularly, the financial projections of the Company and any affiliates. | ||
| b. | The burden of compliance with law for all matters concerning the Company and any affiliates and/or entities which either have or may be contemplating the issuance of Securities, rests with the Company and any such affiliate or entity. Although the Consultant may offer its practical advice or offer comments or observations regarding such matters, he shall not be deemed to provide legal or accounting advice or services, nor to be the maker, author, publisher or be responsible for any statement, representation or misstatement, misrepresentation, omission or alleged misstatement, alleged misrepresentation or alleged omission. |
Section 18. Severability
In the event that any provision of this Agreement shall be held or deemed to be, or shall in fact
be invalid, inoperative or unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or cease, because of conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such circumstance shall
not have the effect of rendering the provision or provisions herein contained invalid, inoperative
or unenforceable, to the extent that such other provisions are not themselves actually in conflict
with such constitution, statute or rule of public policy, but this Agreement shall be reformed and
construed in any such jurisdiction or case as if such invalid, inoperative or unenforceable
provision had never been contained herein and such provision reformed so that it would be valid,
operative and enforceable to the maximum extent permitted in such jurisdiction or in such case,
except when such construction could operate as an undue hardship on either party, or constitute a
substantial deviation from the general intent and purpose of such party is reflected within this
Agreement. For purposes of interpretation, no party shall be deemed the drafter of this Agreement.
Section 19. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument, and in pleading or proving any
provision of this Agreement, it shall not be necessary to produce more than one of such
counterparts signed by the party against whom enforcement is sought. Fax signatures shall be valid
as originals or copies.
Section 20. Section Headings
The headings as utilized throughout this Agreement are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement
Section 21. Gender
Whenever used herein the singular noun shall include the plural, the plural shall include the
singular, and the use of any gender shall include all genders.
Section 22. Governing Law
This Agreement shall be governed by and construed and enforced in accordance with the internal law
of the State of Ohio, without regard to the principals of conflicts of laws. The parties hereto
agree that any disputes that may arise shall be resolved in the appropriate jurisdiction within the
State of Ohio and that the prevailing party shall be entitled to recover any reasonable attorney’s
fees as well as other costs as may be associated with litigation.
(Signature Page Follows)
(Signature Page Follows)
IN WITNESS WHEREOF, the parties have executed or caused to be executed the Agreement as of the date
first above written.
| SaerchPath International, Inc. |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Title: | Chief Executive Officer | |||
Date: July 1, 2007
| Xxxxxxx X. Xxxxx |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Title: | ||||
Date: July 1, 2007
