CONSULTING AGREEMENT
This Agreement, made this 4th day of February,1998 between FoneCash, Inc,
a corporation registered in Delaware, located at 000 Xxxxx Xxxxx Xxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Company") and East Coast
Entertainment, Inc., a corporation registered in New York, located at 0
Xxxxxxxxxx Xxxxx, Xxx Xxxxxxxx, XX 00000 (hereinafter referred to as
"Consultant".
WITNESSETH THAT:
Consultant is hereby employed by Company in accordance with the terms and
conditions herein provided:
1. Services. During the term of this Agreement, Consultant agrees to provide
professional services to Company as set forth in Attachment A to this Agreement.
2. Term. The term of this Agreement shall commence for one year from the date
written above and can be renewed at the option of E.C.E and the Board of
Directors of Company for a period of ten (10) years.
3. Payment. As payment for services by Consultant, Company agrees to payment in
accordance with Attachment A. Consultant shall submit monthly invoices which
shall be paid upon receipt.
4. Expenses. Company shall reimburse Consultant for out-of-pocket expenses
incurred in the course of performing services for Company. Expenditures made on
behalf of the Company must first have approval of Company's Comptroller.
5. Stock Options. Under this Agreement, the Consultant shall be eligible to
participate in such stock option plans established by the Board as incentives
which are made available to Company's key senior executives.
6. Benefits. The Consultant, and employees and members of their families shall
be allowed to participate in the group health plans of the Company as shall be
approved by the Board of Directors from time to time, subject to the
satisfaction of any condition of eligibility therein set forth and further
subject to the right of the Board to amend, modify or terminate any such health
benefit program as it applies to all senior key executives and other employees
of the Company.
7. Termination. The Company shall be entitled to terminate this Agreement upon
written notice to Consultant in the event of a breach of this Agreement. The
following provision, in addition to any other similar provisions herein, shall
govern termination of this Agreement :
(a) The Company, upon a vote of the Board of Directors, may
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terminate for any reason by written notice given to the Consultant
not less then thirty (30) days.
(b) The Company may terminate by written notice given to the Consultant
effective as of the time of receipt of said notice by Consultant in
the event the Consultant shall have engaged in any conduct or
practice that in the reasonable opinion of the Company as expressed
by a vote of the members of the Board, Consultant has a material and
negative effect upon the good name, goodwill, or reputation of
Company.
(c) Company may terminate by written notice given to the Consultant,
effective immediately, in the following events :
(i) Conviction in a court of competent jurisdiction which is
no longer able to be appealed of the Consultant or final ruling or
order no longer subject to appeal process or procedure by any
Governmental Agency regarding any violation of law or regulation
tending, in Company's opinion, to affect adversely the ability of
the Consultant to perform his duties, obligations and
responsibilities herein or the good name, goodwill, or reputation of
the Company; or (ii) Submission by the Consultant to the Board of
Directors any materially false or fraudulent information, reports or
statement.
(d) Notwithstanding anything herein to the contrary, all
representations, warranties, covenants, agreements and undertakings
made or accepted herein by Consultant along with all causes of
action at law or in equity arising from the actual breach of
attempted or threatened breach, shall survive the termination of the
Agreement and inure to the benefit or Company, its successors and
assigns.
8. Independent Contractor. Consultant is an independent contractor and is not an
employee of the Company, as that term is defined by various laws and decisions
of the Internal Revenue Service. Consultant shall be solely responsible for
payment of all local, state and federal taxes resulting from, or on account of,
compensation, reimbursement, or other payment received by Consultant.
9. Not An Agent. Nothing in this Agreement shall be construed to imply a joint
venture, partnership or principal/agent relationship between the parties, and
neither party by virtue of this Agreement shall have any right, power or
authority to act or create any obligations, express or implied, on behalf of the
other party.
10. Indemnification. Consultant shall indemnify and hold Company harmless from
any liabilities, claims or demands (including costs, expenses and reasonable
attorney fees on account thereof) resulting from, or on account of (a)
Consultant's obligations to its employees, (b) for withholding and/or payment of
local, state or federal taxes
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with respect to any compensation, reimbursement, or other payment received by
Consultant, or (c) injuries to persons, including death or damage to property,
including theft, resulting from Consultant's acts or omissions or those of
Consultant's employees, if any.
11. Notices. All notices necessary or required according to the terms of this
Agreement shall be deemed sufficient if in writing and sent by registered mail
or certified mail to the Company and its registered office, and to the
Consultant at the last known office, or at such other address as the party to
receive notice may designate in writings to the other prior to the time such
notice is necessary or required to be sent.
12. Governing. Law. This Agreement shall be subject to and governed by the laws
of the State of New York and that any dispute or question, either of fact or of
law which arises out of this agreement, shall be resolved solely by reference to
the laws of the State of New York. Any controversy or claim arising out of or in
relation to this agreement or the breach thereof, and that is not amicably
settled between the parties shall be settled in the manner established by, and
will be subject to the provisions of the Arbitration laws of the State of New
York, as supplemented by the current rules of the American Arbitration
Association. Any award ordered by the Arbitrator may include, but not be limited
to, hearing costs, lawyer fees, and any other charges and damages deemed
appropriate by the Arbitrator. Judgment on any award rendered may be entered in
any court having jurisdiction over the parties
13. Invalid Provisions. The invalidity of all or any part of any paragraph or
paragraphs of this Agreement shall not invalidate the remainder of this
Agreement or the remainder of any paragraph not invalidated.
14. Binding Effect. This Agreement cannot be assigned, transferred, pledged or
hypothecated in any way, nor made subject to execution, attachment or similar
process.
15 Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties
hereto and contains all of the understandings between said parties
with respect to the subject matter hereof. Further, this Agreement
supersedes any and all other agreements, either oral or in writing,
between the parties hereto, with respect to the subject matter
hereof.
(b) This Agreement may only be amended or revoked at any time by a
written agreement executed by the parties hereto.
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(c) If any provision of this Agreement is judged unenforceable by a
court of competent jurisdiction, that fact will not invalidate the
other provisions.
In Witness Whereof, the parties to this Agreement do hereby agree to the
terms set out above and have hereunto set their respective hands and seal.
FoneCash, Inc.
/s/ Xxxxxx X. Xxxxxxxxxx, Chairman
East Coast Entertainment, Inc
/s/ Xxxxxxx Xxxxxxxx
President
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Attachment A
1. Services.
FoneCash will contract with East Coast Entertainment Inc., (hereafter referred
to as E.C.E.) to assign administrative duties, including but not limited to,
publicity, advertising, public relations, investor relations programs, news
releases, hiring of all necessary outside contractors for any specialized
projects, printing and development of Company's annual reports, preparation of
any design, print or art work, camera ready art, distribution of reports and
corporate releases to State and Federal securities agencies.
Additionally, E.C.E. shall be invited to fill one seat on the Company's
Board of Directors in accordance with the Company's By-laws and amendments as
approved by the Board.
2. Compensation
(a) Until FoneCash attains total gross revenues of $300,000.00 E.C.E. shall not
be paid a monthly retainer, but that after $300,000 in gross revenues are
attained, E.C.E shall be paid at the reduced rate of $50,000.00 a year. Retainer
will be paid in 12 equal monthly payments on the first day of each month
commencing on the first day or the month following the revenue target of
$300,000 having been attained. E.C.E will be reimbursed for all the cost of
providing services as necessary. Invoices prepared by E.C.E. to FoneCash shall
be paid on the first day of the first month following the invoice date. Costs
will include but not limited to, expenses related to the preparation and outside
contracting of all necessary skills and services deemed after approvals by the
FoneCash President or his Executive Representative. This includes the cost of
printing, travel, overhead, hiring of necessary skills and services necessary to
the completion of any approved project (b) After FoneCash Inc. has achieved $
500.000,00 in gross revenues , E.C.E. shall receive compensation at the rate of
$100,000 annually, payable in (12) equal monthly payments on the first day of
each month. After the first year, if FoneCash attains gross sales of
$1,000,000.00, E.C.E. annual compensation will increase 2 per cent ($20,000) for
each million dollars in gross increase in sales over the previous year. (c) In
the event the Company is purchased or acquired and/or merged with a third party
firm, E.C.E. will share in bonuses or other compensation commensurate with other
members of the Board of Directors or other executives.
3 Choice of payment
If the value of FoneCash stock is greater than $ 1.00, E.C.E has the option of
taking 10 per cent of annual compensation in FoneCash common stock at a rate
equivalent to 25 per cent below the average market price of the last 10 days
preceding the date stock is to be issued. This option is available only once
each year and notification of the intent to exercise this option must be given
to the Company by the 15th day preceding the date the option is to exercised.
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