EXHIBIT 10.3
AGREEMENT FOR CONSULTING SERVICES
This Agreement for Consulting Services ("AGREEMENT") is made and entered
into by and between H. Xxxxx Xxxxxxx ("CONSULTANT"), and The Mortgage Store.
(COMPANY)
WITNESSETH
WHEREAS, COMPANY desires to retain the services of CONSULTANT.
WHEREAS, CONSULTANT has training, expertise and background in areas vital
to the business of the COMPANY; and
WHEREAS, CONSULTANT desires to provide consulting services for the benefit
of COMPANY using his knowledge, skills, experience and abilities.
NOW THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the parties hereto agree as follows:
ARTICLE I - SERVICES TO BE PROVIDED
A. Nature of Services. CONSULTANT shall provide advice and perform such
tasks and assignments as may be reasonably requested, orally or in writing, by
COMPANY. COMPANY recognizes that CONSULTANT may have other business obligations
and agrees that CONSULTANT shall be available to COMPANY on an as needed basis
during the term of this Agreement. CONSULTANT shall provide a minimum of three
hours and a maximum of eight hours services per month, upon request of the
COMPANY. CONSULTANT's initial duties hereunder shall be to represent the
interests of COMPANY in the development of a long range business plan for the
ultimate purpose of becoming a publicly traded company.
1. Be reasonably available to provide, and faithfully, diligently and to the
best of his ability provide advice and assistance to the COMPANY and its
management with respect to the marketing, servicing and development of its
business. CONSULTANT shall not be required to be present on the COMPANY's
or any subsidiary's premises in performing such services but he shall
devote such other time to the COMPANY as shall be reasonably necessary to
carry out such services when requested.
2. Assist the COMPANY in its capital raising activities, including meetings
with investors, investment bankers and research analysts and participating
in investor conferences as may be requested by the COMPANY upon reasonable
notice to CONSULTANT.
3. Assist the COMPANY in the identifying, structuring and financing potential
acquisitions to further the business activities of the COMPANY.
B. Right of Control. CONSULTANT shall have exclusive control over the
means and manner by which the services called for by this AGREEMENT are
performed.
ARTICLE II - COMPENSATION FOR SERVICES
A. Compensation. As consideration for the services to be provided and
promises made herein by CONSULTANT, COMPANY shall pay CONSULTANT $40,000 per
year for a one year period, payable quarterly in advance.
B. Reimbursement of Business Expenses. COMPANY agrees to reimburse
CONSULTANT for all actual out-of-pocket expenses which are (I) necessary for the
performance of CONSULTANT's services under this AGREEMENT, and (ii) approved in
advance by the COMPANY.
C. Tax Obligations. CONSULTANT understands and agrees that he is solely
responsible for all income and/or other tax obligations, if any, which may arise
as a consequence of this AGREEMENT.
D. Benefits. CONSULTANT understands and agrees that he shall not be
entitled to certain benefits provided to COMPANY employees, namely, holidays off
with pay; vacation time off with pay; and paid leaves of absence of any kind.
All other benefits to which CONSULTANT is entitled are set forth in the
Severance Agreement.
E. Termination. The COMPANY and/or CONSULTANT may terminate this agreement
for any reason upon written notice. The COMPANY shall have no further
obligations hereunder except to pay CONSULTANT all earned and unpaid
compensation and to reimburse all reasonable unpaid out-of-pocket business
expenses.
ARTICLE III - TERM
A. Effective Date. This AGREEMENT shall become effective as of November 1,
2001.
B. Term. This AGREEMENT shall continue in full force and effect until
terminated.
ARTICLE IV - PROPRIETARY RIGHTS; NON COMPETITION
A. Confidential Information. CONSULTANT understands and agrees that during
the term of this AGREEMENT, he may become aware of information concerning the
operations, budgets, future business plans, and methods of doing business of
COMPANY and/or its affiliated entities, which information is hereby designated
"CONFIDENTIAL INFORMATION." CONSULTANT understands and agrees that he
shall not disclose any CONFIDENTIAL INFORMATION, directly or indirectly, to
anyone outside of COMPANY, or to anyone within COMPANY who is not authorized to
know such CONFIDENTIAL INFORMATION, either during the term of this AGREEMENT, or
at any time after the expiration or termination hereof, without the prior
written consent of the COMPANY.
B. Return of Company Property. CONSULTANT understands and agrees that all
written information, documents, and materials prepared by or at the request of
COMPANY, or provided to CONSULTANT, in the course of providing the services
called for by this AGREEMENT shall be the sole and exclusive property of COMPANY
and will be delivered to COMPANY upon the termination of this AGREEMENT.
C. Proprietary Information. CONSULTANT shall not use for his personal
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit of any person, firm, association or company other than the
COMPANY, any Proprietary Information. "Proprietary Information" means
information relating to the properties, prospects, products, services or
operations of the COMPANY or any direct or indirect affiliate thereof that is
not generally known, is proprietary to the COMPANY or such affiliate and is made
known to CONSULTANT or learned or acquired by CONSULTANT while in the employ of
the COMPANY, including without limitation, information concerning trade secrets
of the COMPANY, or any of the COMPANY's affiliates and any improvements relating
to the products of the COMPANY in accounting, marketing, selling, leasing,
financing and other business methods and techniques. However, Proprietary
Information shall not include (A) at the time of disclosure to CONSULTANT such
information that was in the public domain or later entered the public domain
other than as a result of a breach of an obligation herein; or (B) subsequent to
disclosure to CONSULTANT, CONSULTANT received such information from a third
party under no obligation to maintain such information in confidence, and the
third party came into possession of such information other than as a result of a
breach of an obligation herein. All materials or articles of information of any
kind furnished to CONSULTANT by the COMPANY or developed by CONSULTANT in the
course of his employment hereunder are and shall remain the sole property of the
COMPANY, and if the termination of CONSULTANT's employment hereunder, CONSULTANT
shall immediately deliver the same to the COMPANY.
D. Ownership of Proprietary Information. CONSULTANT agrees that all
Proprietary Information shall be the sole property of the COMPANY and its
assigns, and the COMPANY and its assigns shall be the sole owner of all licenses
and other rights in connection with such Proprietary Information. At all times
CONSULTANT will keep in the strictest confidence and trust all Proprietary
Information and will not use or disclose such Proprietary Information, or
anything relating to such information, without the prior written consent of the
COMPANY, except as may be necessary in the ordinary course of performing his
duties under this AGREEMENT.
E. Documents and Other Property. All materials and articles of information
of any kind furnished to CONSULTANT in the course of his employment hereunder
are and shall remain the sole property of the COMPANY; and if the COMPANY
requests the
return of such information at any time during, upon or after the termination of
CONSULTANT's employment hereunder, CONSULTANT shall immediately deliver the same
to the COMPANY. CONSULTANT will not, without the prior written consent of the
COMPANY, retain any documents, data or property, or any reproduction thereof of
any description, belonging to the COMPANY or pertaining to any Proprietary
Information.
F. Third Party Information. The COMPANY from time to time receives from
third parties confidential or proprietary information subject to a duty on the
COMPANY's part to maintain the confidentiality of such information and to use it
only for certain limited purposes ("Third Party Information"). At all times
CONSULTANT will hold Third Party Information in the strictest confidence and
will not disclose or use Third Party Information except as permitted by the
agreement between the COMPANY and such third party.
G. Intellectual Property. Any and all products, including but not limited
to marketing and financing materials and methods ("Products") made, developed or
created by CONSULTANT (whether at the request or suggestion of the COMPANY or
otherwise, whether alone or in conjunction with others, and whether during
regular hours of work or otherwise during the period of this AGREEMENT, or which
may be directly or indirectly useful in, or relate to, the business of or tests
being carried out by any member of the COMPANY shall be promptly and fully
disclosed by CONSULTANT to the member of the Board of Directors and, if such
intellectual property was made, developed or created other than pursuant to
CONSULTANT's employment hereunder. CONSULTANT shall grant the COMPANY a
perpetual, royalty free license to such intellectual property, and if such
intellectual property was made, developed or created pursuant to CONSULTANT's
employment hereunder, such intellectual property shall be the COMPANY's
exclusive property as against CONSULTANT, and CONSULTANT shall promptly deliver
to an appropriate representative of the COMPANY all papers, drawings, models,
date and other material relating to any invention made, developed or created by
him as aforesaid. CONSULTANT shall at the request of the COMPANY and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel or direct issuance of patents or copyrights to the COMPANY
with respect to such Products as are to be the COMPANY's exclusive property as
against CONSULTANT or to vest in the COMPANY title to such Products as against
CONSULTANT. The expense of securing any such patent or copyright shall be borne
by the COMPANY.
H. Customer Lists. CONSULTANT will not during his employment (i) disclose
the COMPANY's customer lists or any part thereof to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
(ii) assist in
obtaining any of the COMPANY's (including its subsidiaries') existing customers
for any competing business, or (iii) encourage any customer to terminate its
relationship with the COMPANY or any of its subsidiaries.
ARTICLE V - MISCELLANEOUS PROVISIONS
A. Independent Contractor Status. CONSULTANT understands and agrees that
he is an independent contractor and not an employee of COMPANY and that he shall
not become an employee of COMPANY by virtue of the performance of the services
called for under this AGREEMENT.
B. Severability. The Provisions of this AGREEMENT are severable, and if
any part of it is found to be unenforceable, all other paragraphs shall remain
fully valid and enforceable.
C. Arbitration. Any controversy or claim arising out of or relating to
this AGREEMENT or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of Los
Angeles in accordance with the laws of the State of California by one
arbitrator. If the parties cannot agree on the appointment of an arbitrator then
the arbitrator shall be appointed by the American Arbitration Association. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association, except with respect to the selection of an arbitrator
which shall be as provided in this Paragraph. The cost of any arbitration
proceeding hereunder shall be borne equally by the COMPANY and the CONSULTANT.
The award of the arbitrator shall be binding upon the parties. Judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
If it shall be necessary or desirable for the CONSULTANT to retain legal
counsel and incur other costs and expenses in connection with the enforcement of
any or all of his rights under the AGREEMENT, and provided that the CONSULTANT
substantially prevails in the enforcement of such rights, the COMPANY shall pay
(or the CONSULTANT shall be entitled to recover from the COMPANY, as the case
may be) the CONSULTANT's reasonable attorneys' fees and costs and expenses in
connection with the enforcement of his rights including the enforcement of any
arbitration award.
D. Entire Agreement. This AGREEMENT sets forth the entire agreement
between the parties hereto and fully supersedes any and all prior agreements
or understandings between the parties hereto, whether written or oral,
pertaining to the subject matter hereof. No change in, modification of, or
addition, amendment, or supplement to the AGREEMENT shall be valid unless set
forth in writing and signed and dated by each of the parties hereto subsequent
to the execution of this AGREEMENT.
DATE: October 23, 2001 THE MORTGAGE STORE
/S/ H.XXXXX XXXXXXX By: /S/ XXXXXXX XXXXXXXX
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NAME: H. Xxxxx Xxxxxxx NAME: Xxxxxxx Xxxxxxxxx
TITLE: President
