CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 29th
day of March, 2000, by and between Infocall Communications Corp. a
Florida corporation (the "Company"), and Xxxxxxx Xxxxxx, (the
"Consultant") and supercedes any and all prior agreements between
the parties.
RECITALS
WHEREAS, the Company wishes to engage the Consultant with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the
Company the consulting services provided for in the Agreement as
set forth below;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements of the parties herein
contained, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof
and end on 30th of March, 2001.
2. CONSULTING SERVICES
(a) General corporate development
(b) Internet consulting, including but not limited to
developing an Internet business strategy, and corresponding e-
commerce solutions
(c) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and
conditions set forth herein the Company hereby agrees to issue
to the Consultant 100,000 shares of Common Stock of the
Company (the "Common Stock") and register such shares at the
time of the initial issuance, or immediately thereafter, on
Form S-8 under the Securities Act of 1933, as amended.
(e) Issuance. Issuance and delivery of the Shares shall be
made at the offices of the Consultant on or before April 30,
2000. On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates
evidencing the Shares to be issued to the
Consultant and the respective dates, registered in
the name of the Consultant; and
Exhibit 10.11 - Pg. 2
(ii) evidence that the Shares have been
registered on Form S-8, or an appropriately
prepared Form S-8 to be filed upon issuance of the
Shares to the Consultant, registering for resale
thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the
Consultant in performing services hereunder, including all
travel and living expenses while away from home on business at
the request of and in the service of the Company, provided
that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the
Company, and have been pre-approved by the Company.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the
providing of Consulting Services hereunder, the Company may
provide the Consultant with information concerning the Company
which the Company deems confidential (the "Confidential
Information"). The Consultant understands and agrees
Exhibit 10.11 - Pg. 3
that any Confidential Information disclosed pursuant to this
Agreement is secret, proprietary and of great value to the
Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees
that he will take reasonable security measures to preserve and
protect the secrecy of such Confidential Information, and to
hold such information in confidence and not to disclose such
information, either directly or indirectly to any person or
entity during the term of this Agreement or any time following
the expiration or termination hereof; provided, however, that
the Consultant may disclose the Confidential Information to
any of its employees or agents to whom disclosure is necessary
for the providing of services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which
(i) becomes generally available to the public other than as a
result of a disclosure by the Consultant or his assistants,
agents or advisors, or (ii) becomes available on a non-
confidential basis to the Consultant from a source other than
Exhibit 10.11 - Pg. 4
the Company or its advisors, provided that such source is not
known to the Consultant to be bound by a Confidentiality
Agreement with or other obligation of secrecy to the Company
or another party.
(c) Government Order. Notwithstanding anything to the
contrary in this Agreement, the Consultant shall not be
precluded from disclosing any of the Confidential Information
pursuant to a valid order or any governmental or regulatory
authority, or pursuant to the order of any court or
arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since
a violation of this paragraph 3 would cause irreparable injury
to the Company, and that there may not be an adequate remedy
at law for such violation, the Company shall have the right in
addition to any other remedies available at law or in equity,
to enjoin the Consultant in a court of equity for violating
the provisions of this paragraph 3.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that
as of the date hereof and as of the Closing Date (after giving
effect to the transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation
duly organized and validly existing in good standing under the
laws of its jurisdiction of incorporation and has full power
and authority to own its respective property, carry on its
respective business as now being conducted, and enter into and
perform its obligations under this Agreement and to issue and
deliver the Shares to be issued by it hereunder. The Company
is duly qualified in all jurisdictions in which it is
necessary to be so qualified to transact business as currently
conducted. This Agreement, has been duly authorized by all
necessary corporate action, executed, and delivered by the
Company, and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and
to general principals of equity.
(b) Authorization and Validity of Shares. The Shares
have been duly authorized and are validly issued and
outstanding, fully paid and nonassessable and free of any
preemptive rights. The Shares are not subject to any lien,
pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to
authorize and enter into this Agreement.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the
performance by the Company of its obligations under this
Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a
breach of or a default (with the passage of time or otherwise)
require the consent or approval of or filing with any person
(other than consents and approvals which have been obtained
Exhibit 10.11 - Pg. 5
and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great
value to the Company, which value may be impaired if the
secrecy of such information is not maintained. The Consultant
further agrees that he will take reasonable security measures
to preserve and protect the secrecy of such Confidential
Information, and to hold such information in confidence and
not to disclose such information, either directly or
indirectly to any person or entity during the term of this
Agreement or any time following the expiration or termination
hereof; provided, however, that the Consultant may disclose
the Confidential Information to any of its employees or agents
to whom disclosure is necessary for the providing of services
under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which
(i) becomes generally available to the public other than as a
result of a disclosure by the Consultant or his assistants,
agents or advisors, or (ii) becomes available on a non-
confidential basis to the Consultant from a source other than
the Company or its advisors, provided that such source is not
Exhibit 10.11 - Pg. 6
known filings which have been made or result in the imposition
of a lien on or securities interest in any properties or
assets of the Company, pursuant to the charter or bylaws of
the Company, any award of any arbitrator or any Agreement
(including any Agreement with stockholders), instruments,
order, judgment, decree, statute, law, rule or regulation to
which the Company is party or to which any such person or any
of their respective properties or assets is subject.
(e) Registration. The Shares have been, or will, be upon
the filing of an S-8 Registration Statement, registered
pursuant to the Securities Act of 1933, as amended, and all
applicable state laws.
5. FILINGS
The Company shall furnish to the Consultant, promptly after
the sending or filing thereof, copies of all reports which the
Company sends to its equity security holders generally, and copies
of all reports and registration statements which the Company files
with the Securities and Exchange Commission (the "Commission"), any
other securities exchange or the National Association of Securities
Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION
The Company shall cooperate with the Consultant in supplying
such publicity available information as may be reasonably necessary
for the Consultant to complete and file any information reporting
forms.
7. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorney's fees'),
judgments, fines, claims, causes of action, liabilities and
other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in
connection with such action, suit or proceeding if (i) the
Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant
acted in good faith and in a manner reasonably believed by the
Consultant to be in or not opposed to the interests of the
Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not create a
presumption that the Consultant did not act in good faith in
or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceedings, had reasonable
cause to believe that his conduct was not unlawful.
Notwithstanding the forgoing, the Company shall not indemnify
the Consultant with respect to any claim, issue or matter as
to which the Consultant shall have been adjudged to be liable
for gross negligence or willful misconduct in the performance
of his duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability, but in view of all circumstances of
the case, the Consultant is fairly and reasonably entitled to
be indemnified for such expenses which such court shall deem
proper.
Exhibit 10.11 - Pg. 7
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorney's fees),
judgments, fines, claims, causes of action, liabilities and
other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection
with such action, suit or proceeding if (i) the Company was
made a party to any action, suit or proceeding by reason of
the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not
act in good faith and in a manner reasonably believed by the
Consultant to be in or not opposed to the interests of the
Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was lawful.
Notwithstanding the forgoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or
matter as to which the Company shall have been adjudged to be
liable for gross negligence or willful misconduct in
connection with the performance of the Consultant's duties
pursuant to this Agreement unless and only to the extent that
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, the
Company is fairly and reasonably entitled to be indemnified
for such expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a
consulting agreement only and does not constitute an employer-
employee relationship. Accordingly, the Consultant agrees that the
Consultant shall be solely responsible for payment of his own taxes
or sums due to the federal, state, or local governments, overhead,
workmen's compensation, fringe benefits, pension contributions and
other expenses. It is further understood and agreed that the
Consultant is an independent contractor and the Company shall have
no right to control the activities of the Consultant other than
during the express period of time in which the Consultant is
performing services hereunder, and that such services provided
hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the
Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be
performing services and undertaking other responsibilities, for and
with other entities or persons, which may directly or indirectly
compete with the Company. Accordingly, the services of the
Consultant hereunder are on a part time basis only, and the Company
shall have no discretion, control of, or interest in, the
Consultant's services which are not covered by the terms of the
Agreement. The Company hereby waives any conflict of interest which
now exists or may hereafter arise with respect to the Consultant's
current employment and future employment.
9. NOTICE
All notices provided by this Agreement shall be in writing and
shall be given by facsimile transmission, overnight courier, by
registered mail or by personal delivery, by one party to the other,
addressed to such other party at the applicable address set forth
below, or to such other address as may be given for such purpose by
such other party by written notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
Exhibit 10.11 - Pg. 8
To Consultant: Xxxxxxx Xxxxxx
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
To the Company: Infocall Communications Corp.
000 Xxxxxx Xxxxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
10. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit
thereof by a written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended,
modified, or altered except by an instrument in writing signed
by the party against whom such amendment, modification, or
alteration is sought to be enforced. This Agreement supersedes
and replaces all other Agreements between the parties with
respect to any services to be performed by the Consultant of
behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of
California.
(d) Binding Effect. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained
herein are inserted for convenient reference only, are not a
part hereof and the same shall not limit or constrict the
provisions to which they apply. References in this Agreement
to "paragraphs" are to the paragraphs in this Agreement,
unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the
cost and expenses, including, without limitations, attorneys'
fees, incurred by such party in connection with negotiation,
preparation and execution of this Agreement and the
transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement
without the express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to
any person, firm or corporation, other than the parties
hereto.
Exhibit 10.11 - Pg. 9
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be
deemed an original, but both of which together shall
constitute one and the same Agreement, binding upon both
parties hereto, notwithstanding that both parties are not
signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
THE "COMPANY"
INFOCALL COMMUNICATIONS CORP.
By: /s/T.M. Richfield
--------------------------
T.M. Richfield
THE "CONSULTANT"
By: /s/Xxxxxxx Xxxxxx
-------------------------
Xxxxxxx Xxxxxx
