EX-10.12
BUSINESS ADVISORY & CONSULTING SERVICES AGREEMENT
This Business Consulting Services Agreement (the "Agreement") is
entered into this 20th day of September, 2002 by and between Select
University Technologies, Inc., a California corporation
("Consultants"), and Everlert, Inc., (SYMBOL: OTCBB:EVRL) ("Client"),
a Nevada corporation, (collectively, the "Parties") with reference to
the following:
Preliminary Statement
A. The Client desires to be assured of the association and services of
the Consultant(s) in order to avail itself of the Consultants'
experience, skills, abilities, knowledge, and background to facilitate
long range strategic planning, and to advise the Client in business
and/or financial matters and is therefore willing to engage the
Consultant(s) upon the terms and conditions set forth herein.
Consultant(s) desires to be assured, and Client desires to assure
Consultant(s), that, if Consultant(s) associate with Client and
allocates its resources necessary to provide Client with its services
as Client requires and expects, Consultant(s) will be paid the
consideration described herein and said consideration will be
nonrefundable, regardless of the circumstances.
Consultants agree 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(s) on a
non-exclusive basis, and Consultant(s) hereby accept the engagement to
become financial Consultant(s) to the Client and to render such
advice, consultation, information, and services, to the Directors
and/or Officers of the Client regarding general financial and business
matters including, but not limited to:
1.1 Advice and Counsel. Consultant(s) will provide advice and
counsel regarding Client's strategic business plans, strategy and
negotiations with potential business strategic partnering, corporate
planning and or other general business consulting needs as expressed
by Client, which include but are not limited to the following:
The review and commentary of Client's business plan;
Assistance in developing an executive summary of Client's
business plan, if requested;
Perform a market study as to the size and method of reaching
the market for Everlert products.
The review and/or recommendations for filing of patent claims
by Client.
Review and commentary of issues related to value of proposed
patents;
Review and commentary as to feasibility of business plan and
objectives;
Recommendations for improvements to business plan
1.2 Client and/or Client's Affiliate Transaction Due
Diligence. - Not Requested.
1.3 Ancillary Document Services. - Not Requested.
1.4 Mergers and Acquisitions - Not Requested
1.5 Additional Duties. Client and Consultant(s) shall mutually
agree, in writing, for any additional duties that Consultant(s) may
provide to Client for compensation paid or payable by Client under
this Agreement. Although there is no requirement to do so, such
additional agreement(s) may be attached hereto and made a part hereof
by written amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
1.6 Standard of Performance. Consultants shall devote such time and
efforts to the affairs of the Client as is reasonably necessary to
render the services contemplated by this Agreement. Any work or task
of Consultants provided for herein which requires Client to provide
certain information to assist Consultants in completion of the work
shall be excused (without effect upon any obligation of Client) until
such time as Client has fully provided all information and cooperation
necessary for Consultants to complete the work. The services of
Consultants shall not include the rendering of any legal opinions or
the performance of any work that is in the ordinary purview of a
certified public accountant, or other licensed professional.
Consultants cannot guarantee results on behalf of Client, but shall
use commercially reasonable efforts in providing the services listed
above. If an interest is communicated to Consultants regarding
satisfying all or part of Client's business and corporate strategic
planning needs, Consultants shall notify Client and advise it as to
the source of such interest and any terms and conditions of such interest.
2. Compensation to Consultant. As consideration for Consultant
entering into this Agreement Client agrees to cause 1,000,000
shares of its common stock, par value $0.001 per share, to be issued
in amounts of 500,000 shares upon acceptance of engagement with the
balance due upon satisfactory completion of the engagement, shares
will be issued to Xxxxxxxx X. Xxxxxx, President. When issued, said
shares shall be free trading shares, registered with the U.S.
Securities and Exchange Commission on its Form S-8 or similar
registration (the "Engagement Fee"). The registration and issuance of
all said shares shall take place by no later than ten (10) days
following the execution and delivery of this Agreement, and all costs
in connection therewith shall be borne by Client. In the event the
Engagement Fee is not paid in shares of Client the consultant shall
receive an engagement fee of $10,000 in Cash or cash equivalent as
mutually agreed.
Client shall deliver shares pursuant to the foregoing Engagement Fee
to Consultants under the following schedule:
Fifty percent (50%) of all such shares shall be delivered to
Consultants upon execution of this Agreement.
An additional Fifty percent (50%) of all such shares shall be
delivered to Consultants upon satisfactory completion of the
engagement. Satisfactory completion shall mean upon delivery of all
written and other documentation required by the engagement.
If Engagement fee is to be paid in cash, such fee shall be due and
payable 50% upon execution of this agreement and the balance in 60
days thereafter.
2.2 Expenses. Consultants shall bear their own expenses in
connection with this engagement and shall consider all expenses
included in the fee received, except in the event the Client requests
that the Consultant incur extraordinary expenses such as travel or
volume reports (i.e. more than 3 copies of any written materials) in
which case; reasonable expenses incurred in performing its duties
pursuant to this Agreement (including printing, postage, express mail,
photo reproduction, travel, lodging, and long distance telephone and
facsimile charges); provided, however, that Consultants must receive
prior written approval from Client for any expenses over $500. Such
reimbursement shall be payable within 7 seven days after Client's
receipt of Consultant's invoice for same.
2.3 Additional Fees. Client and Consultants shall mutually agree
upon any additional fees that Client may pay in the future for
services rendered by Consultants under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be
attached hereto and made a part hereof as Exhibits beginning with
Exhibit A.
3. Indemnification. The Client agrees to indemnify and hold
harmless Consultants against any and all liability, loss and costs,
expenses or damages, including but not limited to, any and all
expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or
any claim whatsoever or howsoever caused by reason of any injury
(whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property,
arising out of any act, failure to act, neglect, any untrue or
alleged untrue statement of a material fact or failure to state a
material fact which thereby makes a statement false or misleading, or
any breach of any material representation, warranty or covenant by
Client or any of its agents, employees, or other representatives.
Nothing herein is intended to nor shall it relieve either party from
liability for its own willful act, omission or negligence. All
remedies provided by law, or in equity shall be cumulative and not in
the alternative.
4. Confidentiality.
4.1 Consultants and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests.
Consultants and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to the
information through Consultants and Client respectively, to first
enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
4.2 Consultants will not, either during its engagement by the Client
pursuant to this Agreement or at any time thereafter,
disclose, use or make known for its or another's benefit any
confidential information, knowledge, or data of the Client or any of
its affiliates in any way acquired or used
by Consultants during its engagement by the Client. Confidential
information, knowledge or data of the Client and its affiliates shall
not include any information that is, or becomes generally available to
the public other than as a result of a disclosure by Consultants or
its representatives.
5. Miscellaneous Provisions.
5.1 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of Consultants and
Client.
5.2 Assignment . This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. The obligations
of either party hereunder cannot be assigned without the express
written consent of the other party.
5.3 Governing Law; Venue . This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the State of California, without regard to
its conflict of law doctrine. Client and Consultants agree that if any
action is instituted to enforce or interpret any provision of this
Agreement, the jurisdiction and venue shall be the City of Irvine,
Orange County, California.
5.4 Attorneys' Fees and Costs. If any action is necessary to enforce
and collect upon the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and costs, in addition
to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
5.5 Survivability. If any part of this Agreement is found, or deemed
by a court of competent jurisdiction, to be invalid or unenforceable,
that part shall be severable from the remainder of the Agreement.
6. Arbitration. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES
BETWEEN CLIENT, CONSULTANTS OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL
REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY
CUSTOMER OR OTHER PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION
WITH OR AS A RESULT OF THIS AGREEMENT, SHALL BE RESOLVED THROUGH
ARBITRATION RATHER THAN THROUGH LITIGATION. WITH RESPECT TO THE
ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY ACKNOWLEDGE AND
AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES:
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK
MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE
ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE
AMERICAN ARBITRATION ASSOCIATION, IN ORANGE COUNTY, CALIFORNIA WITHIN
FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM THE
OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL
TAKE PLACE IN THE CITY OF IRVINE, ORANGE COUNTY, CALIFORNIA; IF
EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR
SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM
LOCATED IN THE CITY OF IRVINE, ORANGE COUNTY, CALIFORNIA, OVER ANY
MATTER WHICH IS THE SUBJECT OF THIS AGREEMENT, THE PREVAILING PARTY
SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ITS LEGAL FEES AND
ANY OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF
SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO
ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL
AND CONCLUSIVE AND AGREE TO ABIDE THEREBY; ANY DECISION MAY BE FILED
WITH ANY COURT AS A BASIS FOR JUDGMENT AND EXECUTION FOR COLLECTION.
7. Term/Termination. This Agreement is an agreement for the term of
twelve (12) months ending September 30, 2003.
8. Non Circumvention. In and for valuable consideration, Client
hereby agrees that Consultants may introduce (whether by written,
oral, data, or other form of communication) Client to one or more
opportunities, including, without limitation, natural persons,
corporations, limited liability companies, partnerships,
unincorporated businesses, sole proprietorships and similar entities
(hereinafter an "Opportunity" or "Opportunities"). Client further
acknowledges and agrees that the identity of the subject
Opportunities, and all other information concerning an Opportunity
(including without limitation, all mailing information, phone and fax
numbers, email addresses and other contact information) introduced
hereunder are the property of Consultants, and shall be treated as
confidential and proprietary information by Client, it affiliates,
officers, directors, shareholders, employees, agents, representatives,
successors and assigns. Client shall not use such information, except
in the context of any arrangement with Consultants in which
Consultants is directly and actively involved, and never without
Consultants' prior written approval. Client further agrees that
neither it nor its employees, affiliates or assigns, shall enter into,
or otherwise arrange (either for it/him/herself, or any other person
or entity) any business relationship, contact any person regarding
such Opportunity, either directly or indirectly, or any of its
affiliates, or accept any compensation or advantage in relation to
such Opportunity except as directly though Consultants, without the
prior written approval of Consultants. Consultants are relying on
Client's assent to these terms and their intent to be bound by the
terms by evidence of their signature. Without Client's signed assent
to these terms, Consultants would not introduce any Opportunity or
disclose any confidential information to Client as herein described.
9. Representations, Warrants and Covenants. The Client represents,
warrants and covenants to the Consultants as follows:
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 Consultants, 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.
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 that 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 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.
10. 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; or
(ii) overnight delivery with confirmation of delivery; or (iii)
facsimile transmission with an original mailed by first class mail,
postage prepaid, addressed as follows:
If to the Client:
Everlert, Inc.
x/x XX Xxx 0000
Xxxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx - Client
Consultant
000-000-0000
If to Consultants:
Xxxxxxxxx X. Xxxxxx
Select University Technologies, Inc.
0000 Xxxxxx Xxx., Xxxxx X-000
Xxxxx Xxxx, XX 00000
000-000-0000
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.
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.
12. Preliminary Statement. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the date first written above.
"Client":
Everlert, Inc.
Signature: /s/ Xxxxx Xxxxxxxxx
Print name: Xxxxx Xxxxxxxxx
Print title: President
"Consultant":
Select University Technologies, Inc.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
