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EXHIBIT 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of April 10,
1998, by and between XXXXXX A. D. XXXXXX, xx individual ("Consultant"), and
WANDERLUST INTERACTIVE, INC., a Delaware corporation (collectively, with its
affiliates, the "Company").
RECITALS
WHEREAS, Company desires to engage Consultant to perform services on
behalf of Company; and
WHEREAS, Consultant has the ability and knowledge necessary for the
performance of such services; and
WHEREAS, Consultant and Company desire, pursuant to the terms of this
Agreement, to set forth the terms and conditions pursuant to which Consultant
will perform consulting services for and on behalf of Company;
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and adequate consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
SCOPE OF SERVICES
I.1 Consultant agrees to perform for Company general business consulting
services including, but not limited to, the following:
I.1.1 Management Compensation and Benefits. Consultant will assist
in the analysis and determination of management compensation
and benefits.
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I.1.2 Corporate Public Relations. Consultant will assist Company in
its public relations efforts and any and all related matters.
I.1.3 Strategic Positioning. Consultant will assist in the
positioning of Company, as necessary, to prepare for
fulfillment of Company's strategic objectives.
I.1.4 Raising of Capital. Consultant will assist Company in its
capital-raising efforts and any and all related matters.
I.2 Company acknowledges as follows:
I.2.1 No Guarantees. Consultant makes no guarantees, representations
or warranties as to the particular results from Consultant's
services or the response and timeliness of action by the
investment and brokerage community, including but not limited
to guarantees, representations or warranties as to future
stock price of the Company.
I.2.2 Administrative Functions Only. Consultant is not a
broker/dealer and will not engage in any services requiring
registration as such. Consultant's involvement in Company's
capital-related transactions is limited to administrative and
facilitating functions, but no broker/dealer functions.
I.2.3 Review Responsibility. Company understands that the accuracy
and completeness of documents prepared by Consultant, if any,
is dependent upon Company's alertness to assure that such
document contains all material facts which might be important
and that all such documents must not contain any
misrepresentation of a material fact nor omit information
necessary to make the statements therein not misleading. To
that end, Company agrees to review all materials for their
accuracy and completeness prior to any use thereof.
ARTICLE II
COMPENSATION FOR SERVICES
II.1 In consideration for entering into this Agreement and performing the
services described immediately above, Company agrees, in lieu of hourly
rates, to compensate Consultant by means of Company's issuance to
Consultant of an aggregate of 25,000 shares of Company's Common Stock,
which shares shall be deemed to have a fair market value as of the date
of this Agreement equal to $0.625 per share.
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ARTICLE III
TERM OF THE AGREEMENT
III.1 This Agreement shall commence on the date hereof and continue for a
period of six months thereafter. Notwithstanding the foregoing,
Consultant may terminate this Agreement immediately upon written notice
to Company upon the occurrence of any of the following: (a) Company
becomes insolvent or makes an assignment for the benefit of creditors;
and/or (b) Company breaches any of the material terms of this
Agreement.
ARTICLE IV
STATUS OF PARTIES
IV.1 Nothing contained in this Agreement shall be construed to imply that
either Consultant, Company or any employee, agent or other authorized
representative of either such party is a partner, joint venturer,
agent, officer or employee of the other party. Neither party hereto
shall have any authority to bind the other party in any respect
vis-a-vis any third party, it being intended that each shall remain an
independent contractor and responsible only for his or its own actions.
Company and Consultant are independent contractors, each responsible
for his or its own actions, costs and expenses. Neither Consultant nor
the Company shall have any right to, and shall not, commit other party
to any agreement, contract or undertaking or waive or compromise any of
such other party's rights against customers or other parties. All
consideration delivered to Consultant hereunder shall constitute
earnings from self-employment income and Company shall not withhold any
amounts as federal or state income tax withholding or as employee
contributions under the Federal Insurance Contribution Act (Social
Security) or any similar federal or state law applicable to employers
and employees.
ARTICLE V
CONFIDENTIALITY
V.1 Consultant agrees that he shall not at any time (during or after the
term of this Agreement) disclose or use, except in pursuit of the
business of Company with Company's permission, any Proprietary
Information of Company acquired during the term of this Agreement. For
purposes of this Agreement the phrase "Proprietary Information" means
all information which is known or intended to be known only to
Consultant or employees of Company, any document, record or other
information of Company or others in a confidential relationship with
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Company which relates to specific business matters such as patents,
patent applications, trade secrets, secret processes, proprietary
know-how, information of Company's business, and identity of suppliers
or customers or accounting procedures of Company. Consultant agrees not
to remove from the premises of Company except in the pursuit of
business of Company any document, record or other information of
Company. Consultant recognizes that all such documents, records or
other information, whether developed by Consultant or by someone else
for the Company are the exclusive property of Company.
ARTICLE VI
MISCELLANEOUS
VI.1 Waiver. No waiver of any breach or default of this Agreement by either
party shall be considered to be a waiver of any other breach or default
of this Agreement by such party.
VI.2 Severability. If any portion of this Agreement is found by a court of
competent jurisdiction to be void or unenforceable, that portion hereof
shall be deemed to be reformed to the extent necessary to cause such
portion to be enforceable and the same shall not affect the remainder
of this Agreement, which shall be given full force and effect without
regard to the invalid or unenforceable portions.
VI.3 Counterparts. This Agreement may be executed in several counterparts
and any and all such executed counterparts shall constitute one
agreement binding upon the parties hereto.
VI.4 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto and replaces and supersedes all previous
Agreements between Consultant and Company with respect to the subject
matter hereof.
VI.5 No Amendment. This Agreement may not be changed, altered, amended, or
modified, except in a writing, duly executed by each of the parties
hereto.
VI.6 Assignment. This Agreement may not be assigned or transferred by either
party hereto without the prior written consent of the other party.
VI.7 Governing Law. This Agreement shall be governed by the laws of the
State of California without regard to any choice of law provisions
thereof.
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VI.8 Attorneys' Fees. Should any action be commenced between the parties to
this Agreement concerning the matters set forth in this Agreement or
the right and duties of either party in relation thereto, the
prevailing party in such action shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum as and for his or
its attorneys' fees and costs.
VI.9 Arbitration and Venue. Any controversy arising out of or relating to
this Agreement or any modification or extension thereof, including any
claim for damages and/or rescission, shall be settled by arbitration in
Los Angeles County, California, in accordance with the then Commercial
Arbitration Rules of the American Arbitration Association before one
arbitrator. The arbitrator sitting in any such controversy shall have
no power to alter or modify any express provisions of this Agreement or
to render any award which by its terms effects any such alteration, or
modification. The parties consent to the jurisdiction of the Superior
Court of California, and of the United States District Court for the
Central District of California, for all purposes in connection with
such arbitration including the entry of judgment on any award. The
parties consent that any process or notice of motion or other
application to either of said courts, and any paper in connection with
such arbitration proceeding, may be served by certified mail or the
equivalent, return receipt requested, or by personal service or in such
other manner as may be permissible under the rules of the applicable
court or arbitration tribunal, provided a reasonable time for
appearance is allowed. The parties further agree that arbitration
proceedings must be instituted within one year after the claimed breach
occurred, and that such failure to institute arbitration proceedings
within such period shall constitute an absolute bar against the
institution of any such arbitration proceeding and a waiver of all
claims. This section shall survive the termination or expiration of
this Agreement.
VI.10 Facsimile Signature. Any signature on a facsimile copy of this
Agreement shall be binding and valid as if made on the original copy of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
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"Consultant" "Company"
WANDERLUST INTERACTIVE, INC.
/s/ XXXXXX A. D. XXXXXX By: /s/ XXX XXXXX, III
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Xxxxxx A. D. Xxxxxx Xxx Xxxxx, III
President and Chief Executive
Officer
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