EXHIBIT 10.3
FORM OF CONSULTING AGREEMENT
NEW YORK INTERNATIONAL COMMERCE GROUP, INC.
00 XXXXXXX XXXXX, XXXX 00
XXXXXXXXXX, XX 00000
April 1, 0000
Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter evidences the terms of your prior engagement by Interlock
Services, Inc. d/b/a New York International Commerce Group, Inc., a Nevada
corporation (the "Company") to perform the Services (as defined below):
1. Services; Consideration. In consideration of, and in full payment
for, the accounting and financial consultation and advice provided by you in
connection with the Company's public reporting requirements, your role as a
liaison with the Company's independent auditors and such other advisory and
consulting services as requested from time to time by management of the Company
prior to January 31, 2002 (collectively, the "Services"), the Company hereby
issues to you (i) an aggregate of 450,000 shares of the Company's common stock,
$.001 par value per share (the "Shares"), which Shares shall be granted
registration rights in accordance with Section 3 hereof.
2. Investment Representations.
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(a) You hereby acknowledge that the Shares are being offered and
sold to you in reliance on the exemption from registration under the Securities
Act of 1933, as amended (the "Securities Act"), by virtue of Section 4(2) and
Regulation D promulgated under the Securities Act and that the Company is
relying upon the truth and accuracy of your representations, warranties,
agreements, acknowledgments and understandings set forth in this Section 2 for
purposes of qualifying for exemptions from registration under the Securities Act
and applicable state securities laws.
(b) Accordingly, in making your investment decision to acquire the
Shares, you acknowledge and understand that: (i) the Shares have not been
registered under the Securities Act and, except as provided in Section 3 hereof,
the Company is under no obligation to register the securities under the
Securities Act or any applicable state security laws or to take any action to
make any exemption from such registration provisions available; (ii) the Shares
may not be sold, transferred, assigned, pledged or subjected to any lien or
security interest unless they are first registered under the Securities Act and
applicable state securities laws or an exemption from the registration
provisions of the Securities Act and applicable state securities laws are
available with
respect to the proposed sale or transfer; and (iii) the certificates evidencing
the Shares Securities shall contain a restrictive legend to such effect.
(c) You further acknowledge and confirm that: (i) you are aware of
what constitutes, and fully understand the definition of, an "Accredited
Investor," as that term is defined in Regulation D promulgated under the
Securities Act and under the laws of the state of which you are a resident, and
you are an "Accredited Investor" for purpose of said Regulation D and the laws
of such state; (ii) your investment in the Shares is speculative and involves
risk of loss (including the loss of the entire value of the investment and,
because there are substantial restrictions on the transferability, the potential
inability to liquidate the Shares readily in case of an emergency); (iii) you
have sufficient net worth to be able to bear the economic risks associated with
holding the Shares for an indefinite period of time or with sustaining a loss of
your entire investment in the Company; and (iv) you are and will be acquiring
the Shares for your own account, and not with a view to any resale or
distribution, in whole or in part, in violation of the Securities Act or any
applicable securities laws and have not offered or sold any of the Shares and
have no present intention or agreement to divide the Shares with others for
purposes of selling, offering, distributing or otherwise disposing of any of the
Shares.
(d) In addition, you acknowledge that you have had an opportunity to
review copies of all forms, reports and documents required to be filed with the
SEC by the Company for the last fiscal year and the interim period and
understand that no representations or warranties have been made to you by the
Company except as specifically set forth herein. You have also had an
opportunity to consult with your own attorney regarding legal matters concerning
the Company and an investment in the Shares and to consult with your own tax
advisor regarding the tax consequences of acquiring such Shares.
3. Registration Rights.
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(a) Subject to Section 3(b) below, the Company shall prepare and
file with the Commission, on or before the sixth month anniversary hereof, a
resale prospectus on Form S-8 (except if the Company is not then eligible to
register for resale the Shares on such form, on such other appropriate form in
accordance herewith) registering the Shares (a "Registration Statement").
(b) In connection with the registration of the Shares, you shall
have the following obligations:
(i) It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant hereto with respect to the
Shares that you (A) furnish to the Company such information regarding
yourself, the Shares held by you, and the intended method of disposition of
the Shares held by you, as shall be reasonably required to effect the
registration of such Shares and (B) execute such documents in connection
with such registration as the Company may reasonably request.
(ii) You agree to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of
the Registration Statement and any supplemented prospectus and/or amended
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registration statement, unless you have, at your sole option, notified the
Company in writing of any election to exclude the Shares or any portion
thereof from the Registration Statement.
(c) All reasonable expenses, other than brokerage commissions,
incurred in connection with registering the Shares pursuant to this Section 3
shall be borne by the Company, however, if you decide to retain counsel, you
shall do so at your own expense.
4. Independent Contractor. Nothing herein constitutes you as an
employee or agent of the Company; it being acknowledged and agreed by the
parties that you performed the Services as an independent contractor and never
had any authority to obligate, commit or act on behalf of the Company in any
manner whatsoever. The Company made no deductions or withholdings from any
payments due to you hereunder for federal, state or local income tax purposes
and you are responsible for any taxes and other payments due on the
consideration received hereunder.
5. Confidentiality. As a consequence of the relationship evidenced by
this agreement, you may have obtained from the Company certain confidential and
proprietary information, pricing terms, business plans, sales and marketing
techniques, business prospects and strategies, the names and business dealings
with suppliers, contractors, distributors, customers and others, actual or
potential, not being generally known to the public or to other persons who can
obtain economic value from its disclosure or use (collectively, the
"Confidential Information"). You agree to keep confidential, and not disclose to
any other person or entity, or take or use for your own purposes (except as is
required in connection with the performance of your obligations under this
agreement) any Confidential Information, except (i) if such Confidential
Information becomes generally known to the public other than due to your breach
of this paragraph; (ii) in connection with the enforcement of this agreement; or
(iii) pursuant to applicable law, regulation or subpoena. Your obligations
pursuant to this Section 5 shall survive the expiration or termination of the
Services and you hereby agree that, due to the importance to the Company of the
Confidential Information, (a) a monetary remedy for a breach or violation of any
provision hereof may be inadequate and may be impracticable and difficult to
prove and (b) such a breach or violation would cause irreparable harm to the
Company. Accordingly, you hereby agree that the Company shall be entitled with
respect to any such breach or violation or threatened breach or violation, in
addition to any other rights or remedies that the Company may have under
applicable law, in equity or otherwise, to temporary and permanent injunctive
relief and/or specific performance with respect to any such breach, violation or
threatened breach without the necessity of proving actual damages.
6. Indemnification. You shall be indemnified and held harmless by the
Company and its affiliates from all loss, cost or expenses in respect to any and
all mistakes, errors in judgment or for any act or omission believed by you in
good faith to be within the scope of your authority hereunder, regardless of
whether such act or omission is ineffective or in any way fails to achieve the
purposes of this Agreement; provided, however, you are not exculpated hereby to
the extent that you would be liable to the Company for fraud in the performance
of the Services. You shall not be held to
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have incurred any liability to the Company or any person or entity by virtue of
any action taken by you or allegedly failed to be taken by you in the good faith
attempt to discharge your duties and services.
7. Waiver. 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 the party against
whom such waiver is claimed, in all other instances or for all other purposes,
to require full compliance with such provision.
8. Miscellaneous. You may not subcontract, transfer or otherwise
delegate, in whole or in part, any or your obligations hereunder. Any
modification or amendment of, or any waiver of, or consent to any departure
from, any term or provision of this agreement shall be null and void and without
effect unless in writing and signed by each of the parties hereto. This
agreement (i) contains the entire agreement of the parties, with respect to the
subject matter hereof, and supersedes any and all prior agreements and
understandings, oral or otherwise, between the parties, with respect 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 herein; (ii)
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns; and (iii) shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York, without regard to the conflicts of law rules thereof.
9. Counterparts. This agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
By executing below, the parties hereby warrant and represent that they
have the full power and authority to execute and deliver this agreement and to
perform the obligations as contained herein.
Sincerely,
New York International Commerce Group, Inc.
By: _________________________________
Name:
Title:
ACCEPTED AND AGREED TO AS OF
APRIL 1, 2002 BY:
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Xxxxx X. Xxxxxx
