EXHIBIT 10.24
IPVoice COMMUNICATIONS, INC.
Consulting Agreement
THIS CONSULTING AGREEMENT (the "Agreement") is made this 21 day of September,
1998, by and between IPVoice COMMUNICATIONS, INC., a Nevada corporation with
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Client") and
First Capital Partners, Inc. at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000
("Consultant"). The signing of this agreement shall supercede any and all
agreements previously entered into between IPVoice Communications, Inc. and
First Capital Partners, Inc.
RECITALS
A. Consultant, and its network of professionals, is experienced in providing and
introduction of such entities as effectuate capital restructuring, such services
include without limitation the introduction of such entities to appropriate
lenders and equity investors for the purpose of attracting and raising debt
and/or equity capital.
B. Client is a publicly traded corporation;
C. Client wishes to engage the services of Consultant and its network of
professionals to include Client within the select and limited group of clients
for which Consultant and the professionals provide various business managerial
consulting services;
D. Consultant agrees to be retained for the foregoing purposes for which
Consultant has the requisite skills, abilities and qualifications, subject to
the terms and conditions provided herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledged, Client and
Consultant agree as follows:
A. Recitals
The foregoing recitals are true and correct and are incorporated herein by this
reference.
B. Engagement of Consultant
Client hereby appoints Consultant and Consultant's professionals (Consultant's
Professionals") to assist in identifying financing candidates (the Financing
Transactions) on terms acceptable to the Client and hereby retains and employs
Consultant, pursuant to the terms and conditions of the Agreement. Consultant
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accepts such appointment and agrees to perform the services pursuant to the
terms and conditions of the Agreement.
C. Terms of Agreement
This Agreement shall have an initial term of one year (the "Initial Term")
commencing September 1, 1998 and shall not extend beyond the Initial Term unless
the parties enter into a separate and independent written agreement. The parties
agree not to terminate this Agreement pursuant to this section unreasonably or
in bad faith.
D. Duties of the Consultant
Client retains Consultant to assist Client with Client's Financing Transaction,
including, without limitation, any debt, equity or lease financing intoduced to
and received by Client. By providing the services of Consultants and other
professionals, such services to include the review of any and/or all forms of
financial candidates by Client. The Consultant's recommendation of means of
expanding Client's financial position and otherwise improving Client's
financial/capital position to support Client's ability to operate, deploy
gateways, network under their sales and marketing strategy and corporate image
generally. Specifically, Consultant agrees to provide the following services
related to a Financing Transaction:
1. Acting as advisor to Client with respect to Financing, equity or
lease financing as planed, designing, developing, organizing, writing and
distributing such communications and information to potential investors;
2. Receive, manage, and respond to all incoming Financial inquiries
from or pertaining to Client's requested financial needs;
3. Assist with all financial or capital investors and assist in
management meetings including the preparation of agendas, documents, materials,
and presentations to be presented at such meetings;
4. Assist in the planning, preparation and distribution of Client's
budgets, use of proceeds, business plans and any and all related matters
pertaining to the financing transactions of IPVoice products;
5. Assist Client to make Client and Client's management, products and
activities known to appropriate investors or financal organizations, and to seek
out new business acquisitions, which are consistent with Client's strategic
growth plan.
The entirety of the services to be provided by Consultant pursuant to this
Sub-Section E-1.
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E. Duties of the Client
1. On a regular and timely basis, Client shall provide Consultant and
Consultant's designees with all approved data and pertinent information about
Client and Client's management, products and operations. Client shall advise
Consultant of any facts which would affect the accuracy of any prior data or
information provided Consultant or Consultant's Professionals by Client.
2. Client shall use its best efforts to promptly provide Consultant and
Consultant's Professions with full and complete copies of all product and
marketing literature, equipment requirements, network and details; and copies of
all necessary paperwork, etc.
F. Representation and Indemnification
1. Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, information and data which Client
supplies to Consultant or Consultant's Professionals, and Client acknowledges
its awareness that Consultant and Consultant's Professionals will rely on such
continuing representation in disseminating such information and otherwise
performing its technical functions.
2. Consultant, in the absence of written notice from Client, may rely
upon the continuing occurrence of material information and data supplied by
Client.
3. Client hereby agrees to indemnify Consultant against, and to hold
Consultant harmless from any claims, demands, suits, loss, damages, including
legal fees and expenses arising from Consultant's reliance upon the occurrence
and continuing accuracy of such facts, material, information and data, if and
only if, the facts, materials, information and data was provided to Consultant
by Client.
G. Compensation
For services rendered, Client shall pay Consultant and/or Consultant's
designee(s) an engagement fee but not to exceed 125,000 (one hundred twenty-five
thousand) 3 year warrants to purchase common stock with an exercised price of
one dollar per share. Warrants are only due if any form of debt, lease or equity
financing is approved and completed by the Client. All warrants referred to in
this agreement will be demand registration with piggy back registration rights.
Further the Client upon approval, agreement and completion of will compensate
for any equity placed through any entity introduced by Consultant. This will be
in stocks or a cash fee of 10% to be paid at closing out of escrow.
If Client should request Consultant to perform other services not included in
the Services listed in Section D herein. Client shall compensate Consultant or
Consultant's designee(s) as may be agreed to by Client and Consultant in
connection with those specific services.
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H. Best Efforts Basis
The parties agree that they individually and separately shall at all times
faithfully and to the best of their experience, ability, and talents, perform
all the duties that may be required of and from each other pursuant to the terms
of this Agreement. Consultant does not guarantee or warrant that its efforts
shall have any impact on Client's business or that any subsequent financial
improvement shall have any impact on Client's business or that any subsequent
financial improvement shall result from Consultant's efforts.
I. Client's Right to Approve Consultant's Actions
Client expressly retains the right to approve, in its sole discretion, the
amount of financing in connection with a Financing Transaction including without
limitation any debt, equity or lease financing presented, recommended, or
provided by Consultant that involves Client, including with limitation, all
Financing Transactions activities and materials. Consultant and Client mutually
agree that Consultant is not authorized to enter into agreements on behalf of
Client. Client agrees not to withhold its approval pursuant to this section
unreasonably. Consultant agrees that no compensation is forthcoming and no
compensation will be paid unless Client has agreed to and closed all
transactions concerning a Financing Transaction under this agreement.
J. Costs and Expenses
Consultant shall be responsible for paying all daily and ordinary expenses
incurred during and in relation to Consultant's performance under this Agreement
including, but not limited to, ordinary phone, fax, delivery, and copying
expenses. Client agrees to pay for all extraordinary expenses, if any, incurred
by Consultant in relation to Consultant's performance under this Agreement,
including without limitation, long distance travel expenses for any trips
exceeding fifty (50) miles taken on behalf of Client; provided that Consultant
must obtain Client's written approval of all such costs and expenditures prior
to incurring them.
K. Consultant is Not an Agent
Consultant obligations under this Agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered to act as
the agent of Client or otherwise represent or bind Client. For the purposes of
this Agreement, Consultant is an independent contractor. All final decisions
with respect to acts of Client or its affiliate, whether or not made pursuant to
or in reliance on information or advice furnished by Consultant hereunder, shall
be those of Client or such affiliated and Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by Client as a
consequence of such action or decisions.
L. Non-Exclusive Services
Client acknowledges that Consultant is currently providing services of the same
or similar nature to other parties and Client agrees that Consultant is not
prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. Consultant understands and
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agrees that Client shall not be prevented or barred from retaining other persons
or entities to provide services of the same or similar nature as those provided
by Consultant. Consultant shall advise Client of Consultant's positions with
respect to any activity, employment, business arrangement or potential conflict
of interest which may be relevant to this Agreement.
M. Non-Circumvention of Consultant
Client agrees, represents and warrants hereby that it will not circumvent
Consultant with respect to any prospective group introduced by Consultant to
Client nor with respect to any transaction, merger, acquisition, or other
business opportunity proposed by, assisted with or otherwise promoted by
Consultant for the benefit of Client pursuant to the terms of this Agreement.
N. Miscellaneous
1. Authority. The execution and performance of this Agreement has been
duly authorized by all requisite corporate action. This Agreement is a valid and
binding obligation of the parties hereto.
2. Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the parties hereto.
3. 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.
4. Assignment. Neither this Agreement nor any right created by it shall
be assignable by either party without the prior written consent of the other.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties and their successors, any rights or remedies
under this Agreement.
5. 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
mails for transmittal by certified or registered mail, postage prepaid, when
deposited with a courier such as Federal Express or the like, or when sent by
facsimile transmission with a confirming copy by first class mail, provided that
such communication is addressed:
In the case of Client: Xxxxxxx Will, President
IPVoice Communications, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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In the Case of Consultant: Xxxx Xxxxxxxxx
First Capital Partners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other person or address designated by the parties hereto to receive
notice. Any such notice shall be deemed received the earlier of actual receipt
or five (5) business days following deposit of the same.
6. 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.
7. Entire Agreement. This instrument and the exhibits hereto contain
the entire Agreement between the parties with respect to the transaction
contemplated by the Agreement and no other prior written or oral statement or
agreement shall be recognized or enforced. This agreement may be executed in any
number of counterparts but the aggregate of the counterparts together constitute
only one and the same instrument.
8. 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
of unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if it never contained any such invalid,
illegal or unenforceable provisions.
9. Controlling Law. 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 fees from the other party. The attorney fees may be ordered by the
court in the trial of any action described in this paragraph or may be enforced
in a separate action brought for determining attorney fees.
10. Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
11. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transactions described herein.
12. Further Actions. At any time, and from time to time, each party
hereto agrees to take actions and to execute and deliver documents, at its own
expense, as may be reasonably necessary to effectuate the purposes of this
Agreement.
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13. Indemnification. Client and Consultant agree to indemnify, defend
and hold each other harmless from and against all demands, claims, actions,
actions, losses, damages, liabilities, costs and expenses, including without
limitation, interest, penalties and attorneys fees and expenses asserted against
or imposed or incurred by either party by reason of or resulting from a breach
of any representation, warranty, covenant condition or agreement of the other
party to this Agreement.
14. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the other party, the
party who receives the transmission may rely upon the electronic facsimile as a
signed original of this Agreement.
15. Confidentiality. Client and Consultant agree that all non-public
information furnished and to be furnished pursuant to this Agreement shall be
held in strict confidence and shall not without prior written consent of the
respective party, be disclosed in any manner whatsoever, in whole or in part,
and shall not be used by the other party for any purpose other than fulfilling
the terms of this Agreement detailed herein. The term "information" shall
include, but is not limited to, all documents, contracts, memoranda, customer
names and lists, analyses, compilations, data studies, financial data and other
materials and information exchanged hereunder.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
IPVoice Communications, Inc. Date October 7, 1998
Client
By:/s/ Xxxxxxx S Will
--------------------------------
Signature
Xxxxxxx X. Will
President/COO/Chairperson
First Capital Partners, Inc. Date: October 7, 1998
Consultant
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Signature
Xxxx Xxxxxxxxx
Owner/Consultant
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