EXHIBIT 10.23
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this July 29th, 1998 (the
"Effective Date"), by and between Corporate Imaging, with offices located at
00000 Xxxxx 00xx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx XXX 00000 ("Consultant"),
and IP Voice Communications Inc. a Nevada corporation with offices located at
0000 Xxxxxxxxx Xx. Xxxxxx Xxxx, XX 80104("Client").
RECITALS
1. Consultant, and its network of professionals, is experienced in providing
business management, public and investor relations and other related
corporate advisory services and assistance to business organizations,
institutions and firms;
2. Consultant is also experienced in advising and assisting business
organizations, institutions and firms to manage, institute and otherwise
effectuate capital restructuring, such services include without limitation
the introduction of such entities to appropriate lenders and equity
investors for purpose of attracting and raising debt and/or equity capital;
3. Client will be a publicly traded corporation;
4. 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 and consulting services;
5. 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 acknowledge, Client and
Consultant agree as follows:
1. Recitals
The foregoing recitals are true and correct and are incorporated herein by
this reference.
2. Engagement of Consultant
Client hereby appoints Consultant and Consultant's professionals
(Consultant's Professionals") to be its business, managerial, and public
relations counsel and hereby retain and employ Consultant, pursuant to the terms
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and conditions of the Agreement. Consultant accepts such appointment and agrees
to perform the services pursuant to the terms and conditions of the Agreement.
3. Term of Agreement
This Agreement shall have an initial term of two years (the "Initial Term")
commencing August 1st, 1998 and shall not extend beyond the Initial Term unless
the parties enter into a separate and independent written agreement. This
Agreement may be terminated by either party upon ninety - (90) days written
notice to the other party. The parties agree not to terminate this Agreement
pursuant to this section unreasonably or in bad faith.
4. Duties of Consultant
A. Corporate Imaging Services. Client retains Consultant to assist Client
with Client's media and public relations management by providing the services of
consultants and other professionals, such services to include the review of
Client's present media and public relations management, and the recommendation
of means of Client's customer base and otherwise improving Client's corporate
image generally. Specifically, Consultant agrees to provide the following
services related to media and public relations:
i. acting as advisor to Client with respect to communications and
information distributions, such as interviews, press release,
shareholder reports, etc. as well as planning, designing, developing,
organizing, writing and distributing such communications and
information;
ii. receive, manage, and respond to all incoming telephone calls from or
pertaining to Client's shareholders and investors, and shareholder and
investor relations;
iii. assist with all shareholder meetings which are formally announced and
called to order, including the preparation of agendas, documents,
materials, and presentations to be presented at such meetings;
iv. assist in the planning, preparation and distribution, if appropriate,
if marketing materials, news releases, securities filings and
disclosures and related matters pertaining to media relations;
v. assist Client to make Client and Client's managements, products and
activities known to appropriate media and business publications,
analysts, advisors, and other members of the business community and
the public generally, and to seek out new business acquisitions, which
are consistent with Client's strategic growth plan;
vi. provide information pertaining to the trading of Client's common
stock, such as closing stock prices and trading volume.
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The entirety of the services to be provided by Consultant pursuant to this
Subsection 4 A, shall hereinafter collectively be referred to as the
"Corporate Imaging Services".
B. Financial Consulting Services. Client also retains Consultant to assist
Client to improve Client's Capital structure by providing advice and assistance
to Client regarding Client's capital structure and possible capital
reorganization, such services also to include the introduction of Client to
appropriate sources of debt and/or equity capital.
The entirety of the services to be provided by Consultant pursuant to the
Subsection 4.B., shall hereinafter collectively be referred to as the "Financial
Consulting Services".
C. Merger & Acquisition Services. Client also retains Consultants to assist
Client to identify, locate, approach, and engage suitable merger and/or
acquisition candidates which meet client's long-term growth objectives.
The entirety of such services to be provided by Consultant pursuant to this
Subsection 4.C, shall hereinafter collectively be referred to as the "M&A
Consulting Services".
5. Duties of Client
A. 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.
B. Client shall use its best efforts to promptly provide
Consultant and Consultant's Professionals with full and
complete copies of all federal and state securities filings
and reports; complete copies of all shareholder reports and
communications whether or not prepared with the assistance of
Consultant or Consultant's Professional; all data and
information provided to any analysts, broker-dealers, market
makers, or other members of the financial community; and
copies of all product/service brochures, sales materials, etc.
6. Representation and Indemnification
A. 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 public relations functions.
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B. Consultant, in the absence of written notice from Client, may
rely upon the continuing occurrence of material information
and data supplied by Client.
C. 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.
7. Compensation
A. Corporate Imaging Services. For Corporate Imaging Services
Rendered, Client shall pay Consultant and/or Consultant's
designee(s) in the form of free trading common stock of Client
(the "Common Stock") registered pursuant to a Form S-8
registration statement or similar registration statement, as
follows:
i. Upon execution of this Agreement or not more than five (5)
calendar days from the Effective Date, Client shall convey
or cause to be conveyed to Consultant or Consultant's
designee(s), Twenty three thousand (23,000) shares of
Client's free trading common stock;
ii. Client shall convey or cause to be conveyed to Consultant or
Consultant's designee(s) monthly compensation comprised of
Zero (0) shares of Client's free trading common stock, such
payments to be made on or before the first (1st) calendar
day of each, month commencing August 1st, 1998.
The Common Stock to be issued to Consultant and/or Consultant's designee(s)
pursuant to this Subsection 7.A shall be duly issued, fully paid and
nonassessable upon its conveyance to Consultant and or Consultant's designee(s).
B. Financial Consulting Services. For Financial Consulting Services
rendered and for services provided by Consultant pertaining to
the closing of any transaction or agreement which provides
capital to Client and which involves a third party introduced to
Client by Consultant, Client agrees to compensate Consultant by
paying Consultant or Consultant's designee(s) the equivalent of
five percent (5%) of the gross dollar amount of capital provided
to Client or Client's designee(s) pursuant to any transaction or
agreement executed in connection with an introduction to such
third party.
All compensation owed to Consultant or Consultant's designee(s) pursuant to
this Subsection 7.B, shall be paid to Consultant or Consultant's Designee(s)
within three (3) business days of the earlier to occur of either (i) the release
of any such proceeds or capital from escrow, or (ii) the receipt of any such
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proceeds or capital by Client or Client's designee(s).
C. M & A Consulting Services. For M&A Consulting Services rendered and
for services provided by Consultant pertaining to the closing of any
transaction or agreement (not in the ordinary course of Client's
business) involving the merger or acquisition of any enterprise or
business asset which involves a third party introduced to Client by
Consultant, Client agreed to compensate Consultant by paying
Consultant or Consultant's designee(s) the equivalent of 2% of the
total outstanding equity capital of the enterprise or company
acquired, in the event of a merger; or 2% of the fair market value of
the asset acquired, in the event of an acquisition.
If Client should request Consultant to perform other services not included
in the Services listed in Section 4 herein, Client shall compensate Consultant
or Consultant's designee(s) as may be agreed to by the parties in connection
with those specific services.
8. 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 result from Consultant's efforts. Client understands and
acknowledges that the success or failure of consultant's efforts may be
predicted on Client's assets and operating results as well as Client's ability
to attract capital through the public securities markets.
9. Client's Right to Approve Consultant's Actions
Client expressly retains the right to approve, in its sole discretion, the
public relations and advisory services provided by Consultant that involves
Client, including without limitation, all press releases and marketing
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.
10. 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 in relation to Consultant's performance
under this Agreement, including without limitation, long distance travel
expenses for any trips exceeding (50) miles taken on behalf of costs and
expenditures prior to incurring them. Client will be responsible to pay for;
news releases sent by a wire service, and up tp $1800 to produce a Due Diligence
package.
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11. 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 n independent contractor. All final
decisions with respect to acts of Client or its affiliates, 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.
12. 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 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 position with respect
to any activity, employment, business arrangement or potential conflict of
interest which may be relevant to this Agreement.
13. Non-Circumvention of Consultant
Client agrees, represents, and warrants hereby that it will not circumvent
Consultant with respect to any prospective lender or investors 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.
Client also agrees not to sell any stock on the open market without first
consulting with Consultant for the purpose of, without limitation, possibly
coordinating efforts to minimize any adverse effects of such sale upon the
market price of Client's stock.
14. Miscellaneous
A. 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 hereto.
B. 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.
C. 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
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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.
D. 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.
E. 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 Consultant to: Corporate Imaging
Attn: Xxxx Xxxx, President
00000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In the case of Client to: IP Voice Communications, Inc.
Attn: Xxxxxxx X. Will
0000 Xxxxxxxxx Xx.
Xxxxxx Xxxx, 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.
F. Headings & Captions. The headings and paragraphs are included solely
for convenience. If a conflict exists between any heading and the text
shall control.
G. Entire Agreement. The 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.
H. Effect of Partial Invalidity. In the event that any one or more of the
provisions contained herein in this Agreement shall for any reason to
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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.
I. Controlling Law. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the
State of Arizona. Any legal action brought hereunder shall be properly
commenced and venue shall lie only in a state or federal court of
competent jurisdiction located in Maricopa County, Arizona
J. 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 attorneys fees from the other party. The attorneys
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
determinating attorney's fees.
K. Time is of the Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
L. 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.
M. 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.
N. Indemnification. Client and Consultant agree to indemnify, defend and
hold each other harmless from and against all demands, claims,
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.
O. 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.
P. Confidentiality. Client and C0nsultant 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 the prior
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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.
This document is the proprietary property of Corporate Imaging and has been
prepared for the confidential and exclusive use of the client specifically named
herein. This document has been prepared for the purposes inherent to the
negotiation and execution of an agreement between the parties and is intended to
be used solely by the authorized agents and representatives of the Client. This
Agreement is for the sole purpose of memorializing the terms and conditions
stated herein is not to be copies, duplicated, or used in any other manner
without the express written consent of Corporate Imaging.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date(s)
written below.
[Consultant]
CORPORATE IMAGING
By: /s/ Xxxx Xxxx Date: July 30 - 98
--------------------------
Xxxx Xxxx
Title: President
[Client]
IP VOICE COMMUNICATIONS, INC.,
By: /s/ Xxxxxxx X. Will Date: July 29, 1989
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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