EXHIBIT 99.6
This Consulting Agreement (the "Agreement") is entered this 12th day of
November, 2003 by and between Xxxxx Xxxxx ("Consultant"), and FTS Apparel, Inc.
("Client") with reference to the following:
A. The Client desires to be assured of the association and services of the
Consultant in order to avail itself of the Consultants experience, skills,
abilities, knowledge, and background to facilitate long range strategic business
planning, and to advise the Client in business matters and is therefore willing
to engage the Consultant upon the terms and conditions set forth herein.
B. The Consultant agrees to be engaged and retained by the Client and upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ENGAGEMENT. Client hereby engages Consultant on a non-exclusive basis,
and Consultant hereby accepts the engagement to advise on the ongoing planning
and implementation of research and consulting services as follows:
a. Market Research and Analysis for Wi-Fi Industry
x. Xxxxx Papers and Briefs on Wi-Fi Industry
c. Online Industry Research Tracking and Reporting on Wi-Fi Industry
d. Strategic Partnerships and Alliances
e. Daily Internet Clippings of Wi-Fi Industry News
f. Coordination of Wi-Fi Industry Consortiums, seminars, webinars, and event
participation Notwithstanding anything contained herein to the contrary, it is
clearly understood and agreed to by the parties hereto that the aforementioned
services to be provided by Consultant shall not involve any capital raising
efforts or promotion of the Client's securities. It shall be expressly
understood that Consultant shall have no power to bind Client to any contract or
obligation or to transact any business in Client's name or on behalf of Client
in any manner and Client is not obligated to accept any recommendations or close
any transactions submitted by Consultant.
2. TERM. The term ("Term") of this Agreement shall commence on the date hereof
and continue for six moths. The Agreement may be extended upon agreement by both
parties, unless or until the Agreement is terminated. Either party may cancel
this Agreement with full rights of rescission upon thirty days (30) written
notice for breach by written notification from the other party. Such
cancellation shall not excuse the breach or non-performance by the other party
or relieve the breaching party of its obligation incurred prior to the date of
cancellation and all compensation will be awarded on a pro rata basis. (see item
10 "Notices")
3. DUE DILIGENCE. The Client shall supply and deliver to the Consultant all
information relating to the Client Company's business as may be reasonably
requested by the Consultant to enable the Consultant to make an assessment of
the Company and its business prospects and provide the Consulting Services.
4. COMPENSATION AND FEES. As consideration for Consultant entering into
this Agreement, Client and Consultant shall agree to the following:
(a) Client shall pay Consultant 25,000 shares monthly.
5. REPRESENTATIONS, WARRANTS AND COVENANTS. The Client represents,
warrants and covenants to the Consultant as follows:
A. The Client has the full authority, right, power and legal capacity to
enter into this Agreement and to consummate the transactions which are provided
for herein. The execution of this Agreement by the Client and its delivery to
the Consultant, and the consummation by it of the transactions which are
contemplated herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further authorization shall be
necessary on the part of the Client for the performance and consummation by the
Client of the transactions which are contemplated by this Agreement.
B. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable laws, rules
and regulations of all authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Client or cause
an acceleration under any arrangement, agreement or other instrument to which
the Client is a party or by which any of its assets are bound. The Client has
performed in all respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the terms of any such
agreement, contract or commitment.
6. EXCLUSIVITY; PERFORMANCE; CONFIDENTIALITY. The services of Consultant
hereunder shall not be exclusive, and Consultant and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultant agrees that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultant pursuant to the terms of this Agreement.
Consultant shall be required to expend only such time as is necessary to service
Client in a commercially reasonable manner. The Consultant does not guarantee
that its efforts will have any impact upon the Company's business or that there
will be any specific result or improvement from the Consultant's efforts.
Consultant acknowledges and agrees that confidential and valuable information
proprietary to Client and obtained during its engagement by the Client, shall
not be, directly or indirectly, disclosed without the prior express written
consent of the Client, unless and until such information is otherwise known to
the public generally or is not otherwise secret and confidential.
7. INDEPENDENT CONTRACTOR. In its performance hereunder, Consultant and its
agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultant to provide services to Client at any specific time, or in
any specific place or manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. ARBITRATION AND FEES. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued there from shall be binding upon the parties and shall be enforceable as
a judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is required for any payment
not made when due, the creditor shall collect statutory interest and the cost of
collection, including attorney's fees whether or not court action is required
for enforcement.
9. NOTICES. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i)certified mail, postage
prepaid, return receipt requested and First Class mail, (ii) overnight delivery
with confirmation of delivery, or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid or in each case to such other
address and facsimile number as shall have last been furnished by like notice.
If mailing is impossible due to an absence of postal service, and other methods
of sending notice are not otherwise available, notice shall be hand-delivered to
the aforesaid addresses. Each notice or communication shall be deemed to have
been given as of the date so mailed or delivered, as the case may be; provided,
however, that any notice sent by facsimile shall be deemed to have been given as
of the date sent by facsimile if a copy of such notice is also mailed by first
class mail on the date sent by facsimile; if the date of mailing is not the same
as the date of sending by facsimile, then the date of mailing by first class
mail shall be deemed to be the date upon which notice given.
10. MISCELLANEOUS. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements or negotiations. There are no third party
beneficiaries of this Agreement.
11. COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the
date first written above.
"Client"
Signature: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, FTS Apparel, Inc.
"Consultant"
Signature: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Consultant
