Exhibit 10.1
CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated November 19, 2001 and is entered into
by and between DIMENSIONAL VISIONS INCORPORATED. A DELAWARE CORPORATION
(hereinafter "DVUI" or "Client") and XXXX XXXXXXXXXX, XXXXXXX XXXXXX AND XXXXXXX
XXXXXXX, INDIVIDUALS (hereinafter collectively "Consultants").
1. CONDITIONS. This Agreement will not take effect, and Consultants will have
no obligation to provide any service whatsoever, unless and until Client
returns a signed copy of this Agreement to Consultants (either by mail or
facsimile copy). In addition, Client shall be truthful with Consultants in
regard to any relevant or material information provided by Client, verbally
or otherwise which refers, relates, or otherwise pertains to the Client's
business, this Agreement or any other relevant transaction. Breach of
either of these conditions shall be considered a material breach and will
automatically grant Consultants the right to terminate this Agreement and
all moneys, and other forms of compensation, paid or owing as of the date
of termination by Consultants shall be forfeited without further notice.
Upon execution of this Agreement, Client agrees to fully cooperate with
Consultants in carrying out the purposes of this Agreement, keep
Consultants informed of any developments of importance pertaining to
Client's business and abide by this Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, Consultants will
perform the following services for Client:
2.1 ADVICE AND COUNSEL. Consultants 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.
2.2 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE. Consultants
will participate and assist Client in the due diligence process, where
possible, on all proposed business transactions affecting Client of which
Consultants is notified in writing in advance, including conducting
investigation of and providing advice on the business and financial
implications of the proposed transaction(s).
2.3 ADDITIONAL DUTIES. Client and Consultants shall mutually agree, in writing,
for any additional duties that Consultants 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.
2.4 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
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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.
3. COMPENSATION TO CONSULTANTS.
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration for
Consultants entering into this Agreement, Client agrees to cause 2,250,000
shares of its common stock, par value $.001 per share, to be immediately
issued in amounts of 750,000 shares to Xxxx Xxxxxxxxxx, 750,000 shares to
Xxxxxxx Xxxxxx and 750,000 shares to Xxxxxxx Xxxxxxx. In addition, Client
shall cause 3,270,000 shares of its common stock to be issued sixty days
(60) from the date of this Agreement in amounts of 1,090,000 shares to Xxxx
Xxxxxxxxxx, 1,090,000 shares to Xxxxxxx Xxxxxx and 1,090,000 shares to
Xxxxxxx Xxxxxxx. In addition, Client shall cause 3,270,000 shares of its
common stock to be issued ninety days (90) from the date of this Agreement
in amounts of 1,090,000 shares to Xxxx Xxxxxxxxxx, 1,090,000 shares to
Xxxxxxx Xxxxxx and 1,090,000 shares to Xxxxxxx Xxxxxxx. 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
registration and issuance of said shares shall take place by no later than
15 days following the execution and delivery of this Agreement, and all
costs in connection therewith shall be borne by Client.
NOTE: CONSULTANTS SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT IS NOT RECEIVED BY CONSULTANTS WITHIN 15 DAYS OF MUTUAL
EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, CONSULTANTS'S
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING
HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE
RECEIPT OF ANY FEES DUE TO CONSULTANTS UPON EXECUTION OF THIS AGREEMENT ARE
NOT CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER
DESCRIBED WITHIN THIS AGREEMENT.
3.2 EXPENSES. Client shall reimburse Consultants for 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 seven days
after Client's receipt of Consultants invoice for same.
3.3 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.
4. INDEMNIFICATION. The Client agrees to indemnify and hold harmless
Consultants, each of their employees, agents, affiliates, other licensees,
and shareholders 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
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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. Consultants agrees to
indemnify and hold harmless the Client, each of its officers, directors,
employees, agents, and shareholders 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 Consultants 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.
5. CONFIDENTIALITY.
5.1 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.
5.2 Consultants will not, either during their engagement by the Client pursuant
to this Agreement or at any time thereafter, disclose, use or make known
for their 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.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented only by written agreement of Consultants and Client.
6.2 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.
6.3 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 Irvine, Orange County, California.
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6.4 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.
6.5 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.
6.6 COUNTERPARTS. This Agreement may be executed in several counterparts and it
shall not be necessary for each party to execute each of such counterparts,
but when all of the parties have executed and delivered one of such
counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each party in
accordance with its terms.
6.7 FACSIMILE SIGNATURES. The Parties hereto agree that this Agreement may be
executed by facsimile signatures and such signatures shall be deemed
originals. The parties further agree that within ten days following the
execution of this Agreement, they shall exchange original signature pages.
7. 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;
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F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE
AMERICAN ARBITRATION ASSOCIATION, IN IRVINE, 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 IRVINE, ORANGE COUNTY, CALIFORNIA;
I. 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 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;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION; AND
L. ANY ARBITRATION PROCEEDING PURSUANT TO THIS SECTION SHALL BE HELD
BEFORE A PANEL OF THREE ARBITRATORS.
8. TERM/TERMINATION. This Agreement is an agreement for the term of
approximately twelve (12) months ending November 18, 2002. Either party may
terminate this Agreement immediately upon notice to the other party for
cause. For purposes of this Agreement, the term "cause" shall include, but
not be limited to, the following: a material breach of or failure to
perform any covenant or obligation in this Agreement, disloyalty,
dishonesty, neglect of duties, unprofessional conduct, acts of moral
turpitude, disappearance, felonious conduct, or fraud. If this Agreement is
terminated for cause, a pro rata portion of compensation delivered by
either party to the other shall be returned based upon the amount of time
remaining in the term.
9. 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
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
DIMENSIONAL VISIONS INCORPORATED (DVUI)
Print Name: Xxxx X. XxXxxxxxx
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Sign Name: /s/ Xxxx X. XxXxxxxxx
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Title: Chairman and C.E.O.
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Date: 11/19/2001
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Address: 0000 X. Xxxxxx Xxx. X-000 Xxxxxxx XX 00000
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CONSULTANTS
Print Name: Xxxx Xxxxxxxxxx
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Sign Name: /s/ Xxxx Xxxxxxxxxx
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Date: 11/20/01
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Print Name: Xxxxxxx X. Xxxxxx
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Sign Name: /s/ Xxxxxxx X. Xxxxxx
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Date: 11/20/01
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Print Name: Xxxxxxx Xxxxxxx
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Sign Name: /s/ Xxxxxxx Xxxxxxx
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Date: 11/20/01
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