CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), is made and entered into
as of the 8th day of January, 2000, between Vizacom Inc., a Delaware corporation
(the "Company"), Xxxx AMG, Inc., a Delaware corporation (the "Consultant") and
Xxxxxxx Xxxxx ("Xx. Xxxxx").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
WHEREAS, Xx. Xxxxx, a principal of the Consultant, has demonstrated an
ability to provide to the Company certain valuable strategic and other
consulting services; and
WHEREAS, the Company and the Consultant wish that the Consultant
provide such services to the Company over a fixed term and for the Company to
compensate the Consultant therefor;
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants hereinafter set forth, and for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Term. Subject to earlier termination on the terms and conditions
hereinafter provided, and further subject to certain provisions hereof which
survive the term hereof and to Section 6 below, the term of this Agreement shall
be comprised of a three (3) year period commencing as of the date hereof (the
"Term").
2. Duties of Consultant. During the term of this Agreement, the
Consultant shall cause Xx. Xxxxx to provide, and Xx. Xxxxx shall provide, the
Company with such consulting advice as the Company may reasonably request
regarding strategic positioning, capital structure, financings, mergers and
acquisitions, marketing, operational matters, and such other matters as the
Company may determine. In performance of these duties, the Consultant and Xx.
Xxxxx shall provide the Company with the benefits of their best judgment and
efforts.
3. No Limitation to Consultant's Outside Activities. The Company
acknowledges that the Consultant and/or its affiliates and Xx. Xxxxx are in the
business of providing services and consulting advise (of all types contemplated
by this Agreement) to others. Nothing herein contained shall be construed to
limit or restrict the Consultant or Xx. Xxxxx from conducting such business with
respect to others, or in rendering such advise to others for so long as such
advisory services do not in any way conflict with activities, business or best
interests of the Company.
4. Indemnification. Neither the Consultant or Xx. Xxxxx shall be
subject to liability to the Company or to any officer, director, employee,
shareholder or creditor of the Company, for any act or omission in the course of
or connected with the rendering or providing
advice hereunder other than for its gross negligence or wilful misconduct.
The Company agrees to defend, indemnify and hold harmless the Consultant and Xx.
Xxxxx from and against any and all costs, expenses and liability (including
attorney's fees paid in the defense of the Consultant and/or Xx. Xxxxx) which
may in any way result from services rendered by the Consultant pursuant to or in
any connection with this Agreement other than any such liabilities resulting
from the Consultant's and/or Xx. Xxxxx'x xxxxx negligence or wilful misconduct.
5. Expenses. The Company shall reimburse the Consultant and Xx. Xxxxx,
for any and all reasonable out-of-pocket expenses incurred by such party,
including hotel, food and associated expenses, all charges for travel and other
expenses spent directly on the Company's behalf; provided, that the Company's
prior written consent shall be required for expenses in excess of $500.00.
6. Consideration. In consideration for the services to be rendered to
the Company by the Consultant, the Company hereby agrees to grant the Consultant
as a consulting fee, the following warrants to purchase up to an aggregate of
650,000 shares of the Company's common stock, par value $.001 per share (the
"Common Stock"), for a three-year period, each at an exercise price of $3.00 per
share:
(a) A warrant to purchase 100,000 shares of Common Stock
immediately exercisable as of the date hereof (the "Initial Warrant");
(b) A warrant to purchase 70,000 shares of Common Stock which is
exercisable upon the closing of an acquisition by the Company or an affiliate
thereof, of a target company based in Europe that was introduced to the Company
by Xx. Xxxxx (the "First Acquisition Warrant");
(c) A warrant to purchase 90,000 shares of which are exercisable
upon the closing of an additional acquisition by the Company or an affiliate
thereof, of a target company based in Europe that was introduced to the Company
by Xx. Xxxxx (the "Second Acquisition Warrant");
(d) A warrant to purchase 40,000 shares of which are exercisable
upon the closing of a further additional acquisition by the Company or an
affiliate thereof, of a target company based in Europe that was introduced to
the Company by Xx. Xxxxx (the "Third Acquisition Warrant");
(e) A warrant to purchase 50,000 shares of Common Stock
exercisable upon the closing of a private placement by the Company of its Common
Stock whereby the Company raises at least $1 million from investors introduced
to the Company by Xx. Xxxxx (the "1M Private Placement Warrant");
(f) A warrant to purchase 150,000 shares of Common Stock
exercisable upon the closing of a private placement by the Company of its Common
Stock whereby the Company
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raises at least $20 million and at least a majority of such capital is
raised by investors introduced to the Company by Xx. Xxxxx (the "Xxxxx
Investors"), in proportion to the percentage of such funds are provided by the
Xxxxx Investors (the "20 m Private Placement Warrant"); and
(g) Subject to clause (h) below, a warrant to purchase 150,000 shares
of the Common Stock , which is exercisable immediately (the "Escrow Warrant").
(h) The Escrow Warrant granted by the Company to the Consultant
hereunder shall be held in excrow by Xxxxxxx & Xxxxxxxx, LLC, or any successor
firm, pursuant to the escrow agreement, the form of which is attached hereto as
Exhibit A, which shall provide that the Escrow Warrant shall be released from
Escrow to Xx. Xxxxx upon the receipt by the escrow agent thereunder of written
instructions from both the Company and either the Consultant or Xx. Xxxxx to
release such warrants.
7. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of the remainder of this Agreement.
8. Notices. Any notice hereunder shall be in writing and shall be effective
when delivered in person, by nationally recognized overnight courier service, by
facsimile transmission electronically confirmed during normal business hours, or
mailed by certified mail, postage prepaid, return receipt requested, to the
appropriate party or parties, at the following addresses: if to the consultant,
to Xxxx AMG, Inc., to 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000; if to the
Company, to Vizacom Inc., Glenpointe Center East, 300 Xxxxx X. Xxxx Xxxxxxxxx,
Xxx 00, 0xx Xxxxx, Xxxxxxx, XX 00000, Attn: Xxxx X. Xxxxxxxxx (Fax No. (201)
000-0000); with a copy to Xxxxxxx & Xxxxxxxx, LLC, 00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxx Xxxx 00000, Attn: Xxxx X. Xxxxxxx, Esq. (Fax No.
(000) 000-0000); if to Xx. Xxxxx, to 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000, (Fax No. ) or, in each case, to such other address as the parties may
hereinafter designate by like notice.
9. Parties. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. This Agreement
is intended to be, and is for the sole and exclusive benefit of the parties
hereto, and their respective successors and assigns, and for the benefit of no
other person, and no other person will have any legal or equitable right, remedy
or claim under, or in respect of this Agreement. This Agreement and the rights,
duties, payments or obligations hereunder may not be assigned by either party
(except by operation of law) and shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns and legal
representatives.
10. Amendment and/or Modification. Neither this Agreement, nor any term or
provision hereof, may be changed, waived, discharged, amended, modified or
terminated orally, or in any manner other than by an instrument in writing
signed by each of the parties hereto.
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11. Further Assurances. Each party to this Agreement will perform any and
all acts and execute any and all documents as may be necessary and proper under
the circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
12. Validity. In case any term of this Agreement will be held invalid,
illegal or unenforceable, in whole or in part, the validity of any of the other
terms of this Agreement will not in any way be affected thereby.
13. Waiver of Breach. The failure of any party hereto to insist upon strict
performance of any of the covenants and agreements herein contained, or to
exercise any option or right herein conferred in any one or more instances, will
not be construed to be a waiver or relinquishment of any such option or right,
or of any other covenants or agreements, and the same will be and remain in full
force and effect.
14. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
there are no representations, inducements, promises or agreements, oral or
otherwise, not embodied in this Agreement. Any and all prior discussions,
negotiations, commitments and understanding relating to the subject matter of
these agreements are hereby superseded.
15. Counterparts. This Agreement may be executed in counterparts and each
of such counterparts will for all purposes be deemed to be an original, and such
counterparts will together constitute one and the same instrument.
16. Law. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to conflicts
of laws.
17. Representations, Warranties and Covenants to Survive Delivery. The
respective representations, indemnities, agreements, covenants, warranties and
other statements of the Company and the Consultant set forth herein shall
survive execution of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this agreement as of the date first above written.
VIZACOM INC.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
XXXX AMG, INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: President
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