CONSULTANT AGREEMENT
This Consultant Agreement (herein the "Agreement") is entered into by and Go
Call, Inc., a Delaware corporation (herein "CLIENT"); on the one part and
Connoisseur Club, Inc., (herein "CONSULTANT"); on the other part.
CLIENT is a publicly traded company and is seeking the services of CONSULTANT to
obtain new business to generate growth in CLIENT's stock price.
The parties hereto, by executing this Agreement, do hereby agree to be bound to
the terms and conditions hereunder.
TERMS AND CONDITIONS:
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1. SERVICE TO BE TENDERED: CLIENT hereby engages CONSULTANT as the CLIENT's
consultant for the purposes regarding corporate posturing, current
shareholders and debt/equity financing. The consultant's services would
include, but not be limited to: (i) a review of the CLIENT's operations and
capital structure, valuation of the CLIENT's business units, pending and
executory contracts and recommendation of the actions to be taken to
maximize shareholder value and earnings, (ii) the rendering of advice and
assistance, where possible, for the private placement of additional
financing and (iii) assistance (where possible) to the CLIENT in the
exercise of any of the CLIENT's warrants to purchase shares of the CLIENT.
CONSULTANT'S role as consultant shall continue until the termination of
this Agreement pursuant to Paragraph 4 below.
1.1 Further, CONSULTANT agrees to keep and maintain all material
non-public information, which CONSULTANT received or developed
concerning the CLIENT, confidential, and to disclose that
information only as contemplated by this Agreement or as required
by law. Notwithstanding the foregoing, CONSULTANT is free to
utilize independent agents to provide services contemplated herein
provided such agents, employees, CONSULTANT, investors and lenders
agree to be bound by the confidentiality provisions of this
Agreement.
1.2 Review the CLIENT's operations specifically for cash flow purposes
and advise the CLIENT regarding the CLIENT's capital structure and
valuation of its business units and contracts.
1.3 Advise the CLIENT in negotiations to obtain price and terms of
financing short term or otherwise.
1.4 Advise the CLIENT in negotiations for the purpose of completing
mergers or acquisitions and the effect or effects of such on the
CLIENT, its cash flow and profitability.
1.5 CONSULTANT shall obtain written approval prior to disclosing any
material non-public information and utilizing any printed or
reprinted material of CLIENT.
2. Except as required by law, any advice rendered by CONSULTANT pursuant to
this Agreement shall be treated as confidential by the CLIENT and by any
party to whom the CLIENT discloses such advice and shall not be disclosed
publicly in any manner without the prior written consent of CONSULTANT.
Without prior consultation with CONSULTANT, the CLIENT shall not make any
legally required disclosure of such advice nor make any public
announcements or filings in which CONSULTANT's name appears.
3. The CLIENT agrees to make available all information concerning the
business, assets, operations and financial condition of the CLIENT which
CONSULTANT reasonably requests in connection with the performance of its
obligations hereunder. CONSULTANT is entitled to rely upon the accuracy and
completeness of such information without independent verification.
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4. This Agreement shall naturally terminate upon the fifth anniversary from
the date of execution hereof.
a. Either party may terminate this Agreement for any reason prior to its
natural termination providing 30 day written notice be given to the
non-terminating party.
5. For the services provided herein, The CLIENT shall tender to CONSULTANT:
a. Upon execution hereof, CLIENT shall tender to CONSULTANT 500,000 shares
of restricted stock of Go Call, Inc. (the "Shares") and 500,000 options
of Go Call, Inc. stock at $0.50 per share.
1. The 500,000 shares of restricted stock shall be free tading within
one year of issuance by one of the following manners.
a. The restriction shall expire on the year anniversary
date of the issuance of the 500,000 shares of stock to
CONSULTANT; or
b. Should the CLIENT become a fully compliant bulletin
board company during the Shares' one year
restriction, CLIENT shall register CONSULTANT'S
Shares no later than three months after becoming
compliant.
2. In addition, CONSULTANT shall also receive an additional
2,000,000 options (the "Options") of Go Call, Inc. at a price of
$0.50 per share which shall be deemed vested in CONSULTANT upon
execution hereof, however, CONSULTANT will allow CLIENT to make
the Options available in 500,000 share blocks on the each
anniversary date of the execution hereof for the remainder of
the natural life of this Agreement.
a. In the event of an early termination pursuant to
Section 4 above, the remaining Options under Section 5
(2) shall be made immediately available to CONSULTANT
at which time CONSULTANT shall have no less than thirty
(30) days and no more than ninety (90) days to tender
to CLIENT the Option price due and payable to the
CLIENT.
3. CLIENT agrees that CONSULTANT shall be entitled to ten (10%)
percent of all monies directly raised by CONSULTANT through
private placements, however, CLIENT and CONSULTANT shall be
entitled to re-negotiate this percentage on a case by case
basis without impacting the agreed to percentage enumerated
above.
6. Should CLIENT sell, merge or be acquired by any third party which is
publicly traded, CLIENT shall have the third party acquirer executed a
valid assignment of this Agreement to avoid any ambiguities as it relates
to CONSULTANT'S rights hereunder and to ensure remuneration.
REPRESENTATIONS AND WARRANTIES OF THE CLIENT
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7. The CLIENT represents and warrants to CONSULTANT as follows:
7.1 DUE INCORPORATION AND QUALIFICATION: The CLIENT has been duly
incorporated, is validly existing and is in good standing under
the laws of its state of incorporation and is duly qualified as a
foreign corporation (except where the failure to so qualify would
not have a material adverse effect on the business of the CLIENT)
for the transaction of business and is in good standing in each
jurisdiction in which the ownership or leasing of its properties
or the conduct of its business requires such qualification. The
CLIENT has all requisite corporate power and authority necessary
to own or hold its properties and conduct its business as put
forth to CONSULTANT by the CLIENT.
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7.2 AUTHORIZED CAPITAL: The CLIENT will have an authorized and
outstanding capitalization, and all of the then issued and
outstanding shares of Common Stock will have been duly and validly
authorized and issued and will be fully paid and nonassessable.
None of the holders of such outstanding shares of Common Stock is
subject to personal liability solely by reason of being such a
holder.
7.3 FINANCIAL STATEMENTS: The financial statements of the CLIENT
fairly present the financial position and results of operations of
the CLIENT at the dates thereof and for the periods in conformity
with generally accepted principles, consistently applied
throughout the periods involved.
7.4 NO MATERIAL ADVERSE CHANGES: (i) There has not been any changes in
the condition, financial or otherwise, of the CLIENT, as put forth
to CONSULTANT by the CLIENT, which would have materially adversely
affected its ability to conduct its operations; and (ii) the
CLIENT has not incurred any material liabilities or obligations,
direct or contingent, not in the ordinary course of business.
7.5 TAXES: The CLIENT has filed all Federal tax returns and all state
and municipal and local tax returns (whether relating to income,
sales, franchise, real or personal property or other types of
taxes) required to be filed under the laws of the United States
and other applicable countries and/or jurisdictions, and has paid
in full all taxes which have become due pursuant to such returns
or claimed to be due by any taxing authority or otherwise due and
owing, provided, the CLIENT has not paid any tax, assessment,
charge, levy or license fee that it contests in good faith and by
proper proceedings and adequate reserves for the accrual of same
are maintained if required by generally accepted accounting
principles. Each of the tax returns heretofore filed by the CLIENT
correctly and accurately reflects the amount of its tax liability
thereunder. The CLIENT has withheld, collected and paid all other
levies, assessments, license fees and taxes to the extent required
and with respect to payments, to the extent that the same have
become due and payable.
7.6 NO PENDING ACTIONS: There are no actions, suits, proceedings,
claims or hearings of any kind or nature or, to the best of the
knowledge of the CLIENT, any investigations or inquiries, before
or by any court, governmental authority, tribunal or
instrumentality, pending or threatened against the CLIENT, or
involving the properties of the CLIENT which could have resulted
in any material adverse change in the business, properties,
financial position or results of operations of the CLIENT, or
which could have materially adversely affected the transaction or
other acts then contemplated by this Agreement or the validity or
enforceability of this Agreement.
7.7 DUE AUTHORIZATION: The CLIENT has full right, power and authority
to enter into this Agreement and to perform all of its obligations
hereunder. This Agreement was duly authorized, executed and
delivered by the CLIENT. No issuance of shares of the CLIENT's
capital stock shall be required as a condition to this execution,
validity or enforceability hereof. This Agreement constitutes,
upon execution and delivery, a valid and binding obligation of the
CLIENT, enforceable in accordance with its respective terms
(except (i) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization. moratorium or other
similar laws affecting creditor's rights generally or by general
principles of equity; and (ii) that the enforceability of the
indemnification and contribution provisions of this Agreement may
be limited by the Federal securities laws and public policy), and
no consent, approval, authorization, order of, or filing with, any
court or governmental authority or any other third party is
required to consummate the transactions contemplated by this
Agreement.
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7.8 NON-DEFAULT: NONCONTRAVENTION: During the operative period, the
CLIENT is not in violation of its articles or certificate of
incorporation or by-laws or, in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, lease or other
instrument to which it is a party, and the CLIENT's execution and
delivery of this Agreement, and the incurrence of the obligations
herein and therein set forth, and the consummation of the
transactions contemplated do not (i) conflict with, or constitute
breach of. or a default under the articles or certification of
incorporation or by-laws of the CLIENT, or any material contract,
lease or other material agreement or instrument to which the
CLIENT is a party or in which the CLIENT has a beneficial interest
or by which the CLIENT is bound; (ii) violates any existing
applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having
jurisdiction over the CLIENT or any of its properties or business;
or (iii) has or has had any material adverse effect on any permit,
certification, registration, approval, consent, license or
franchise necessary for the CLIENT to own or lease and operate any
of its properties and to conduct its business or the ability of
the CLIENT to make use thereof.
7.9 NO REGULATORY PROBLEMS: The CLIENT warrants that there exists
no regulatory problems by any governmental agency, court or
jurisdiction, foreign or domestic and that the CLIENT is not now,
or threatened to be. under any investigation by any governmental
agency, court, or jurisdiction foreign or domestic.
7.10 NO VIOLATIONS: The CLIENT is not in violation of any material
franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any governmental agency or court, foreign or
domestic, having jurisdiction over the CLIENT or any of its
properties or business other than any violation which individually
or in the aggregate would not have a material adverse effect on
the CLIENT's business, properties or operations.
7.11 CONDUCT OF BUSINESS: The CLIENT has all necessary authorizations,
approvals, orders, licenses, certificates and permits
(collectively, the "Approvals") of and from all governmental
regulatory officials and bodies, to own or lease its properties
and conduct its business and the CLIENT has been doing business in
compliance with all such material Approvals, and all Federal,
state and local laws rules and regulations, other than any such
Approvals, laws, rules and regulations, the failure to comply with
which would not have material adverse effect on the CLIENT, its
business, properties or operations. All licenses and findings of
suitability required to be obtained by any affiliate of the CLIENT
have been obtained and are in full force and effect.
7.12 TITLE TO PROPERTY, INSURANCE: The CLIENT has good title to, or
valid and enforceable leasehold estates in, all items of real
property owned or leased by it, and continues to have good title
to, or valid and enforceable leases or subleases with respect to,
all items of personal property (tangible and intangible), free and
clear of all liens, encumbrances, claims, security interests,
defects of title, and restrictions of any material nature
whatsoever, and liens for real estate taxes not yet due and
payable. No default or notice of default exists or has been
declared by the landlord or sublessor under any of such leases or
subleases. The CLIENT has adequately insured its tangible and/or
real properties against loss or damage by fire or other casualty
(other than earthquake and flood) and at all relevant times
maintained such insurance in adequate amounts, on terms generally
offered by reputable insurance carriers.
7.13 INTANGIBLES: The CLIENT owns or possesses the requisite licenses
or rights to use all trademarks, service marks, service names,
trade names and other rights (collectively, the "Intangibles")
described as owned or used by it. There are no proceeding or
action by any
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person pertaining to, or proceeding or claim pending or, to the
best knowledge of the CLIENT, threatened and the CLIENT has not
received any notice of conflict with the asserted rights of others
which challenge the exclusive right of the CLIENT with respect to
any Intangibles used in the conduct of the CLIENT's business. To
the best knowledge of the CLIENT, the Intangibles and the CLIENT's
operations do not infringe on any Intangibles held by any third
party.
7.14 HOLD HARMLESS: The CLIENT agrees to indemnify and otherwise hold
CONSULTANT, its directors, employees, agents and controlling
persons harmless from and against any and all losses, claims,
damages, liabilities and expenses joint and several (including all
reasonable fees of counsel, whether or not resulting in
liability), caused by or resulting out of CONSULTANT acting for
the CLIENT pursuant to this Agreement; providing that said loss,
claim, damage, liability or expense is found to have not resulted
primarily from CONSULTANT's gross negligence or bad faith in
performing the services described above.
7.15 HOLD HARMLESS: The CLIENT agrees to indemnify and hold CONSULTANT,
its directors, employees, agents and controlling persons harmless
from and against any an all losses, claims, damages, liabilities
and expenses joint and several (including all reasonable fees of
counsel, whether or not resulting in liability), caused by any
material adverse changes in CLIENT not known to CONSULTANT at the
time of the execution of this Agreement.
REPRESENTATIONS AND WARRANTIES OF CONSULTANT
--------------------------------------------
8. The CLIENT represents and warrants to CONSULTANT as follows:
8.1 DUE INCORPORATION AND QUALIFICATION: The CONSULTANT, if a
corporation, has been duly incorporated, is validly existing and
is in good standing under the laws of its state of incorporation
and is duly qualified as a foreign corporation (except where the
failure to so qualify would not have a material adverse effect on
the business of the CONSULTANT) for the transaction of business
and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its
business requires such qualification. The CONSULTANT has all
requisite corporate power and authority necessary to own or hold
its properties and conduct its business as put forth to CLIENT by
the CONSULTANT.
8.2 AUTHORIZED CAPITAL: The CONSULTANT, if a corporation, will have an
authorized and outstanding capitalization, and all of the then
issued and outstanding shares of Common Stock will have been duly
and validly authorized and issued and will be fully paid and
nonassessable. None of the holders of such outstanding shares of
Common Stock is subject to personal liability solely by reason of
being such a holder.
8.3 NO MATERIAL ADVERSE CHANGES: (i) There has not been any changes in
the condition, financial or otherwise, of the CONSULTANT, as put
forth to CLIENT by the CONSULTANT, which would have materially
adversely affected its ability to conduct its operations; and (ii)
the CONSULTANT has not incurred any material liabilities or
obligations, direct or contingent, not in the ordinary course of
business.
8.4 NO PENDING ACTIONS: There are no actions, suits, proceedings,
claims or hearings of any kind or nature or, to the best of the
knowledge of the CONSULTANT, any investigations or inquiries,
before or by any court, governmental authority, tribunal or
instrumentality, pending or threatened against the CONSULTANT, or
involving the properties of the CONSULTANT which could have
resulted in any material adverse change in the business,
properties, financial position or results of operations of the
CONSULTANT, or which could have materially adversely affected the
transaction or other acts then contemplated by this Agreement or
the validity or enforceability of this Agreement.
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8.5 DUE AUTHORIZATION: The CLIENT, whether an individual or a
corporation, has full right, power and authority to enter into
this Agreement and to perform all of its obligations hereunder.
This Agreement was duly authorized, executed and delivered by the
CONSULTANT. No issuance of shares of the CONSULTANT's capital
stock shall be required as a condition to this execution, validity
or enforceability hereof. This Agreement constitutes, upon
execution and delivery, a valid and binding obligation of the
CONSULTANT, enforceable in accordance with its respective terms
(except (i) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally or by general
principles of equity; and (ii) that the enforceability of the
indemnification and contribution provisions of this Agreement may
be limited by the Federal securities laws and public policy), and
no consent, approval, authorization, order of, or filing with, any
court or governmental authority or any other third party is
required to consummate the transactions contemplated by this
Agreement.
8.6 NON-DEFAULT: NONCONTRAVENTION: During the operative period, the
CONSULTANT is not in violation of its articles or certificate of
incorporation or by-laws or, in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, lease or other
instrument to which it is a party, and the CONSULTANT's execution
and delivery of this Agreement, and the incurrence of the
obligations herein and therein set forth, and the consummation of
the transactions contemplated do not (i) conflict with, or
constitute breach of, or a default under the articles or
certification of incorporation or by-laws of the CONSULTANT, or
any material contract, lease or other material agreement or
instrument to which the CONSULTANT is a party or in which the
CONSULTANT has a beneficial interest or by which the CONSULTANT is
bound: (ii) violates any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the
CONSULTANT or any of its properties or business; or (iii) has or
has had any material adverse effect on any permit, certification,
registration, approval, consent, license or franchise necessary
for the CONSULTANT to own or lease and operate any of its
properties and to conduct its business or the ability of the
CONSULTANT to make use thereof.
8.7 NO REGULATORY PROBLEMS: The CLIENT warrants that there exists no
regulatory problems by any governmental agency, court or
jurisdiction, foreign or domestic and that the CONSULTANT is not
now, or threatened to be, under any investigation by any
governmental agency, court, or jurisdiction foreign or domestic.
8.10 NO VIOLATIONS: The CONSULTANT is not in violation of any material
franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any governmental agency or court, foreign or
domestic, having jurisdiction over the CONSULTANT or any of its
properties or business other than any violation which individually
or in the aggregate would not have a material adverse effect on
the CONSULTANT's business, properties or operations.
8.11 CONDUCT OF BUSINESS: The CONSULTANT has all necessary
authorizations, approvals, orders, licenses, certificates and
permits (collectively, the "Approvals") of and from all
governmental regulatory officials and bodies, to own or lease its
properties and conduct its business and the CONSULTANT has been
doing business in compliance with all such material Approvals, and
all Federal, state and local laws rules and regulations, other
than any such Approvals, laws, rules and regulations, the failure
to comply with which would not have material adverse effect on the
CONSULTANT, its business, properties or operations. All licenses
and findings of suitability required to be obtained by any
affiliate of the CONSULTANT have been obtained and are in full
force and effect.
8.l2 HOLD HARMLESS: The CONSULTANT agrees to indemnify and
otherwise hold CLIENT, its directors, employees, agents and
controlling persons harmless from and against any and all
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losses, claims, damages. liabilities and expenses joint and
several (including all reasonable fees of counsel, whether or not
resulting in liability), caused by or resulting out of CLIENT
acting for the CONSULTANT pursuant to this Agreement; providing
that said loss, claim, damage, liability or expense is found to
have not resulted primarily from CLIENT's gross negligence or bad
faith in performing the services described above.
8.l3 HOLD HARMLESS: The CONSULTANT agrees to indemnify and hold CLIENT,
its directors, employees, agents and controlling persons harmless
from and against any an all losses, claims, damages, liabilities
and expenses joint and several (including all reasonable fees of
counsel, whether or not resulting in liability), caused by any
material adverse changes in CONSULTANT not known to CLIENT at the
time of the execution of this Agreement.
9. If a transaction is completed pursuant to this Agreement, CONSULTANT,
at its own expense and with the CLIENT's approval (which approval shall
not be unreasonably withheld or delayed) is entitled to place an
announcement in such newspapers and periodicals as it may choose
stating that CONSULTANT has acted as the consultant / public relations
agent for the CLIENT in such transaction.
10. CONSULTANT understands and the CLIENT agrees that no individuals have acted
as finders.
11. CLIENT AND CONSULTANT agree that no other privileges or benefits shall
inure to the benefit of CONSULTANT other than the remuneration provided
for under Section 5 above.
12. In the event a transaction occurs during the pendency of this Agreement
and the CLIENT is not the surviving entity in such a transaction as a
merger or acquisition or otherwise, or in the event that all or
substantially all of the CLIENT's assets has been sold during such
period, the CLIENT agrees to cause the acquirer or acquirers to assume
and honor the obligations and liabilities of the CLIENT hereunder.
13. This Agreement shall be construed in accordance with the laws of the State
of California.
14. This Agreement represents the entire understanding between the parties,
and shall supersede all prior discussions. All and negotiations are
deemed merged into the Agreement and no parole evidence shall be
allowed to contradict it.
15. All Notices to either party shall be in writing and delivered via US Mail
to the following persons and addresses:
CLIENT CONSULTANT
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GO CALL, INC. CONNOISSEUR CLUB, INC.
XXXXXXX XXXX, CEO PMB2 Caribbean Place
00 XXXXX XXXXXX XXXX Xxxxxxxxxxxxxx
XXXXXXXXX, XXXXXXX, XXXXXX Turks and Caicos Islands
90068
16. This Agreement can be executed in counterparts which separately and/or
collectively result in a validly executed agreement.
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CONSULTANT AGREEMENT SIGNATURE PAGE
THIS CONSULTANT SERVICE AGREEMENT HAS BEEN EXECUTED THIS FIRST DAY OF
JULY, 1999.
CLIENT: CONSULTANT
/s/ Xxxxxxx Xxxx /s/ signature
--------------------------- ---------------------------
GO CALL, INC. CONNOISSEUR CLUB, INC.
BY: Xxxxxxx Xxxx, CEO BY:
/s/ For and on behalf of
Avatar Corporation Limited,
Director
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