EXHIBIT 8.3.
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CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "consulting agreement") is entered into
as of the May __, 2005, by and between Xxxxxx Xxxxxxx, an individual
("consultant") and Xxxxxx Beaumont, Inc., a Nevada corporation ("MBI"), with
reference to the following.
RECITALS
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A. MTEL Communications, Inc., a Florida corporation ("MTEL") and MBI have
entered into that certain Purchase Agreement dated May ___, 2005 (the
"Agreement") concerning the purchase and sale of certain assets of MTEL.
B. Concurrent with the closing of the Agreement, MBI desires to engage Xxxxxxx
as a consultant to assist the Company in operating the equipment and development
of its phone card services.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, mutual
promises, terms, covenants and conditions set forth herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows.
1. ENGAGEMENT. MBI hereby engages and retains Consultant to assist and advise
MBI, its subsidiaries and affiliated companies and to perform the Services (as
defined below) and Consultant hereby accepts such appointment on the terms and
subject to the conditions hereinafter set forth and agrees to use his best
efforts in providing the Services.
2. INDEPENDENT CONTRACTOR. Consultant shall be, and in all respects be deemed to
be, an independent contractor in the performance of his duties hereunder, any
law of any jurisdiction to the contrary notwithstanding. Consultant shall not,
by reason of this Consulting Agreement or the performance of the Services, be or
be deemed to be, an employee, agent, partner, co-venturer, insider, affiliate or
controlling person of MBI, and Consultant shall have no power to enter into any
agreement on behalf of or otherwise bind MBI. Consultant shall not have or be
deemed to have, fiduciary obligations or duties to MBI or its affiliates and
shall be free to pursue, conduct and carry on for its own account (or for the
account of others) such activities, employments, ventures, businesses and other
pursuits as Consultant in its sole, absolute and unfettered discretion, may
elect, subject the terms of the Agreement.
3. SERVICES. As a consultant to MBI's telco-related matters, Consultant agrees
to provide the following consulting services and be responsible for the
following activities (collectively, the "Services"):
(i) Management of all switches and Telco-related opportunities;
(ii) Negotiation and management of all Telco-related contracts and
relationships;
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(iii) Assistance in the development of prepaid phone cards and
Debit/ATM and hologram debit cards; and
(iv) Sale of prepaid phone cards, re-loadable prepaid phone cards and
Debit/ATM and hologram debit cards.
4. BEST EFFORTS. Consultant shall devote such time and best effort to the
affairs of MBI as is reasonable and adequate to render the Services as
contemplated by this Consulting Agreement.
5. COMPENSATION. In consideration for the Services, MBI agrees that Consultant
and/or its assigns shall be entitled to compensation as follows.
(a) CONSULTING FEE. MBI shall pay Consultant for services performed
under this Consulting Agreement a total of Six Thousand Dollars ($6,000) per
month, for a period no less than eighteen (18) months, as consideration for the
Services and any other services rendered by Consultant (the "Consulting Fee").
Such payment shall be made monthly, during the term hereof and, to the extent
permissible by law, there shall be no withholding deductions. Such payments
shall in all events cease upon the termination of this Consulting Agreement.
(b) SALES COMMISSION. Consultant shall be paid a commission equal to
ten percent (10%) of gross profits collected from the sale of cards sold by or
through Consultant (phone and/or stored value) to the extent such amount exceeds
$20,000 per calendar month (the "Sales Commission"). For example, if $100,000 is
collected in gross profits from the sale of phone cards and/or phone/stored
value cards sold by or through Consultant, the commission earned by Consultant
would be $8,000 ($100,000 - $20,000 - $80,000 X 10% = $8,000). In this example,
Consultant would earn a total of $13,000 (inclusive of his base pay) in
compensation that month.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) EXECUTION. The execution, delivery and performance of this
Consulting Agreement, in the time and manner herein specified, will not conflict
with, result in a breach of, or constitute a default under any existing
agreement, indenture, or other instrument to which either MBI or Consultant is a
party or by which either entity may be bound or affected.
(b) CORPORATE AUTHORITY. Both MBI and Consultant have full legal
authority to enter into this Consulting Agreement and to perform the same in the
time and manner contemplated.
(c) AUTHORIZED SIGNATURES. The individuals whose signatures appear
below are authorized to sign this Consulting Agreement on behalf of their
respective corporations.
7. TERM AND TERMINATION. This Consulting Agreement shall be effective upon its
execution and shall remain in effect for a period of eighteen (18) months unless
otherwise terminated as provided in this Section 8. With the exception of the
covenants and agreements set forth in Sections 8 and 10, this Consulting
Agreement shall terminate upon the occurrence of any one of the following
events:
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(i) The expiration of the term of this Consulting Agreement as set
forth in Section 8, or
(ii) Death or disability of Xxxxxxx, or
(iii) Xxxxxxx is in material breach of or default under any provision
of this Consulting Agreement, and such material breach is not cured within three
(3) business days after Xxxxxxx is given notice of such material breach or
within such other period of time as Xxxxxxx and MBI shall mutually agree, or
(iv) Xxxxxxx becomes a full time employee of a third party.
MBI shall have the right to terminate Consultant's engagement hereunder
by furnishing Consultant with thirty (30) days advance written notice of such
termination. Upon receipt of such written notice, this Consulting Agreement will
then terminate on the last day of the next full calendar month following the
receipt of notice. Notice of termination must be received before the end of the
last day of the calendar month in order to terminate the Consulting Agreement on
the last day of the next full calendar month following the receipt of notice.
Notwithstanding the foregoing, no termination of this Consulting
Agreement by MBI shall in any way affect Consultant's right to receive:
(i) reimbursement for billed, accrued and/or unbilled disbursements and
expenses which right the parties hereby agree and consent is absolute;
ii) its fees, securities and/or warrants, including the Engagement
Options and underlying Common Stock, which have been earned by Consultant
through the effective date of termination.
(iii) Consultant's Monthly Advisory Fees through the effective date of
termination.
8. CONFIDENTIAL DATA. Except for its employees, agents and independent
contractors, Consultant shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining to the
business and affairs of MBI, obtained by Consultant as a result of its
engagement hereunder, unless authorized, in writing by MBI.
(a) Except for its employees, agents and independent contractors or as
required by law or the rules of any securities exchange or stock market, MBI
shall not divulge to others, any trade secret or confidential information,
knowledge, or data concerning or pertaining to the business and affairs of
Consultant, obtained by MBI as a result of its engagement hereunder, unless
authorized, in writing, by Consultant.
(b) Consultant shall not be required in the performance of its duties
to divulge to MBI or any officer, director, agent or employee of MBI, any secret
or confidential information, knowledge, or data concerning any other person,
firm or entity (including, but not limited to, any such persons, firm or entity
which may be a competitor or potential competitor of MBI) which Consultant may
have or be able to obtain otherwise than as a result of the relationship
established by this Consulting Agreement.
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(c) In any suit to enforce the provisions of this Article VIII, the
parties agree there shall be no adequate remedy at law and that the parties
shall be entitled to seek injunctive relief.
9. PROVISIONS. The provisions of Section 6 and Section 8 shall survive the
termination or expiration of this Consulting Agreement.
10. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to time, at the
request of others, execute, acknowledge and deliver to the other party any and
all further instruments that may be reasonably required to give full effect and
force to the provisions of this Consulting Agreement.
11. ENTIRE AGREEMENT. Each of the parties hereby covenants that this Consulting
Agreement is intended to and does contain and embody herein all of the
understandings and agreements, both written or oral, of the parties hereby with
respect to the subject matter of this Consulting Agreement, and that there
exists no oral agreement or understanding expressed or implied liability,
whereby the absolute, final and unconditional character and nature of this
Consulting Agreement shall be in any way invalidated, empowered or affected.
There are no representations, warranties or covenants other than those set forth
herein.
12. CHOICE OF LAW. This Consulting Agreement shall be deemed to be made in,
governed by and interpreted under and construed in all respects in accordance
with the laws of the State of Florida, irrespective of the country or place of
domicile or residence of either party. In the event of controversy arising out
of the interpretation, construction, performance or breach of this Consulting
Agreement, the parties hereby agree and consent to the jurisdiction and venue in
the Twelfth Circuit Court in and for Sarasota, Florida or the United States
District Court for the Middle District of Florida, as appropriate, and further
agree and consent that personal service or process in any such action or
proceeding outside of the State of Florida and Sarasota County shall be
tantamount to service in person within Sarasota County, Florida and shall confer
personal jurisdiction and venue upon either of said Courts.
13. ASSIGNMENTS. The benefits of the Consulting Agreement shall inure to the
respective successors and assigns of the parties hereto and of the indemnified
parties hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Consulting Agreement by the parties
hereto shall be binding upon their respective successors and assigns.
14. ORIGINALS. This Consulting Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original and
constitute one and the same agreement. Facsimile copies with signatures shall be
given the same legal effect as an original.
15. ADDRESSES OF PARTIES. Each party shall at all times keep the other informed
of its principal place of business if different from that stated herein, and
shall promptly notify the other of any change, giving the address of the new
place of business or residence.
16. NOTICES. All notices that are required to be or may be sent pursuant to the
provision of this Consulting Agreement shall be sent by certified mail, return
receipt requested, or by overnight package delivery service to each of the
parties at the address appearing herein, and shall count from the date of
mailing or the validated air xxxx.
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17. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions
of this Consulting Agreement shall be effective only if made in writing and
executed with the same formality as this Consulting Agreement. The failure of
any party to insist upon strict performance of any of the provisions of this
Consulting Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature or of any other nature.
18. ATTORNEY'S FEES. If any arbitration, litigation, action, suit, or other
proceeding is instituted to remedy, prevent or obtain relief from a breach of
this Agreement, in relation to a breach of this Consulting Agreement or
pertaining to a declaration of rights under this Consulting Agreement, the
prevailing party will recover all such party's attorneys' fees incurred in each
and every such action, suit or other proceeding, including any and all appeals
or petitions therefrom. As used in this Consulting Agreement, attorneys' fees
will be deemed to be the full and actual cost of any legal services actually
performed in connection with the matters involved, including those related to
any appeal or the enforcement of any judgment calculated on the basis of the
usual fee charged by attorneys performing such services.
EXECUTED as of the date set forth above.
"MBI"
XXXXXX BEAUMONT, INC., a Nevada corporation
By:
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Xxxxx Xxxxxx, CEO
"XXXXXXX"
By:
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Xxxxxx Xxxxxxx, an individual
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