CONSULTING
AGREEMENT
This
consulting agreement (the “Agreement”), made effective as of December
5th, 2002, will confirm the understanding between Exus
Networks Inc., and its affiliates and/or subsidiaries (collectively, the
“Company”) and Xxxxxx Xxxxxxxxxx, ('Consultant”), pursuant to
which the Company has retained Consultant in connection with (i) short and long
term strategic planning; (ii) short term crisis management; (iii) short and long
term marketing; (iv) meeting with/selecting qualified companies for joint
business ventures; (v) contracting and interviewing qualified accounting firms
and legal counsel; (vi) recruitment selection of key executives and staff; (vii)
internet and website design; and (viii) identification/selection of board
members, with all such services (the “Services”) on the terms and
subject to the condition set forth herein.
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1.
Retention. The Company hereby retains Consultant to provide the Services.
Consultant shall devote time and effort, as Consultant deems necessary to provide the
Services. |
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2.
Further Agreements. This Agreement does not constitute any agreement express or
implied, on the part of Consultant or the Company or any commitment by Consultant, or by
the Company to engage Consultant to underwrite, purchase, place, or cause the placement
of any securities or indebtedness or to advise the Company or negotiate on behalf of the
Company in connection with any sale of any securities or its business or assets or in
connection with any merger, consolidation or similar transaction. |
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3.
Compensation. Company will pay consultant for the services 2,500,000 shares of
free trading stock. |
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4.
Termination. The term of this Agreement shall be 6 months. |
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5.
Indemnity. The Company agrees to indemnify the Indemnified Persons (as defined in
Schedule as set forth in Schedule A hereto, which Schedule A is incorporated herein and
made a part hereof. |
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6.
Representations and Warranties of the Company. In addition to any representations
and warranties for which provision is made in any other agreement between the Company
and Consultant, the Company represents and warrants to Consultant that at the
commencement of the Services and at the time of the provision of the Services during the
term of this Agreement: |
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(a)
The Company will furnish Consultan
and its agents and counsel with all
information concerning the Company that Consultant and its agents
reasonably deem appropriate and agree to provide Consultant and its agents
with reasonable access to the Company’s officers, directors, accountants,
counsel, consultants and other appropriate agents and representatives. The
Company acknowledges the Consultant and its agents may rely upon the
completeness and accuracy of information and data furnished to any of them by or
on behalf of the Company and that the Company will use its best efforts to
ensure that such information will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. |
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(b)
All payments of compensation to Consultant shall not cause the Company
to violate any law or regulation applicable to the Company and that in the event
payment is in the form of securities or instruments convertible to securities,
each registration statement, preliminary and final prospectus required to be
filed or previously filed with the Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Act of 1933, as amended, and
each document required to be filed or previously filed with the Commission
pursuant to the provisions of the Securities Exchange Act of 1934, as amended,
pertaining to any such securities or instruments convertible into securities and
each appendix, attachment, amendment, or supplement to any of the foregoing and
all related documents, including but not limited to each related letter of
transmittal will not, and no other report, filing, document, release or
communication mailed, delivered, published, or filed by or on behalf of the
Company will, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and
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(c)
This Agreement had been, and the
Services contemplated hereby at the
time of the commencement and consummation thereof, shall be duly
authorized by the Company. |
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7.
Certain Other Covenants of the Company. Other than to the Company's
representatives, the Company agrees that no advice or recommendations rendered or
summarized, excerpted from or otherwise referred to without Consultant's prior written consent.
In addition, other than to the Company's representatives, Consultant may not be otherwise
referred to by the Company without Consultant's prior written consent or unless required by law. |
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8.
Survival of Certain Provisions. The compensation provisions contained in paragraph
3 above, the indemnity contained in paragraph 5 hereof (including Schedule B hereto) and the
representations and warranties of the Company contained in paragraph 6 hereof and this
paragraph 8 shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of Consultant, or by or on behalf of any Indemnified Person (as such is
defined in Schedule A hereto), and (ii) any termination or expiration of this Agreement,
and shall be binding upon, and shall
inure to the benefit of, any successors, assigns, heirs and personal
representatives of the Company, Consultant, and any and all Indemnified Persons. |
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9.
Notices. Notice given pursuant to any of the provisions of this Agreement shall be in
writing and shall be mailed or delivered (i) to the Company at : 000 Xxxx 00xx Xx. , 00xx Xxxxx ,
XX , XX , 10155 Attn: Xxx Xxxxxx, and (ii) Xxxxxx Xxxxxxxxxx, 0000 Xxxxx Xxx, Xxxxx, XX,
00000. |
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10.
Construction. This Agreement, including Schedule A hereto, incorporates the entire
understanding of the parties and supersedes all previous agreements and shall be governed by,
and constructed in accordance with, the laws of the State of Florida as applied to contracts made
and performed in such State. The Company and Consultant each hereby irrevocably submits to
the exclusive jurisdiction of the Federal and Florida State courts located in Miami-Dade County,
Florida in connection with any suit, action, or proceeding related to this Agreement or any of the
matters contemplated hereby, irrevocably waives any defense of lack of personal jurisdiction and
irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard
and determined in any such court. The Company and Consultant each irrevocably waives, to the
fullest extent it may effectively do so under applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in any such court had been
brought in an inconvenient forum. Each Indemnified Person (as defined in Schedule A to this
Agreement) is intended to be a third party beneficiary of the provisions of paragraph 5 hereof and
Schedule A. All obligations of the Company hereunder and under Schedule A shall be joint and
several obligations of the Company and its affiliates and subsidiaries. In the event it is necessary
for Consultant to file an action in either equity and/or at law to enforce this Agreement, Company
shall be responsible and obligated to pay Consultant all attorneys' fees and costs, including
appellate. |
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11.
Severability. Any determination that any provision of this Agreement (including any
provision of Schedule A) may be, or is unenforceable shall not affect the enforceability of the
remainder of this Agreement (including Schedule A) |
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12.
Headings. The paragraph headings in this Agreement have been inserted as a matter
of convenience of reference and are not part of this Agreement. |
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13.
Counterparts. This Agreement may be executed in two or more counterparts and by
facsimile, each of which shall be deemed an original, but all of which shall constitute one and the
same instrument. |
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14.
Third Party Beneficiaries. This Agreement has been and is made solely for the
benefit of the Company and Consultant (including other Indemnified Persons for purposed of
paragraph 5 hereof and Schedule A only) and Schedule A hereof and their respective successors
and assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. |
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15.
Modification. This Agreement may not be modified or amended except in writing,
duly executed by the parties hereto. |
If the foregoing terms
correctly set forth our agreement, please confirm this by signing and returning
to Consultant a duplicate copy of this letter. Thereupon, this letter, as signed
in counterpart, shall constitute our agreement on the subject matter herein.
/s/
Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
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Confirmed and agreed to as
of the date first above written:
Exus Networks.,
| Name: |
Xxxxx Xxxxxx
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| Title: |
CEO
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Schedule A
Indemnity
This
Schedule A is a part of and is incorporated into that certain consulting
agreement (the “Consulting Agreement” and together with this Schedule
A, the “Agreement”), Exus
Networks, (collectively,
the “Company”) and Xxxxxx Xxxxxxxxxx, (“Consultant”).
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Letter Agreement.
The
Company agrees to indemnify and hold harmless Consultant, his affiliates and
their respective directors, officers, agents, and employees (Consultant and each
such entity or person are an “Indemnified Person” from and against any
losses, claims, damages, judgments, assessments, costs, and other liabilities
(collectively “Liabilities”), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel at trial and on appeal (collectively,
“Expenses”) as they are incurred in an investigating, preparing,
pursuing, or defending any claim, action, proceeding or investigation, whether
or not in connection with pending or threatened litigation and whether or not
any indemnified person is a party (collectively, “Actions”), (i)
caused by, arising out of or in connection with the Company’s breach of
this Agreement including, but not limited to the breach of any representation,
warranty or term contained in the Consulting Agreement, or services rendered or
to be rendered by any Indemnified Person pursuant to the Consulting Agreement.
The Company will not be responsible for any Liabilities or Expenses of any
Indemnified Person that are determined by a judgment of a court of competent
jurisdiction which is no longer subject to appeal or further review to have
resulted solely from the gross negligence, bad faith or willful misconduct of an
Indemnified Person in connection with any of the Services referred to in the
Consulting Agreement. The Company also agrees to reimburse each Indemnified
Person for all Expenses as they are incurred in connection with enforcing such
Indemnified Person’s rights under this Agreement (including, without
limitation, its rights under this Schedule A) and the Consulting Agreement.
Upon
receipt by an Indemnified Person of actual notice of an Action against such
Indemnified Person with respect to which indemnity may be sought under this
Agreement, such Indemnified Person shall promptly notify the Company in writing;
provided that failure so to notify the Company shall not relieve the Company
from any liability which the Company may have on account of this indemnity or
otherwise, except to the extent the Company shall have been materially
prejudiced by such failure. The Company shall, if requested by Consultant or at
the Company’s option, assume the defense of any such Action including the
employment of counsel selected by the Company that is reasonably satisfactory to
Consultant. Notwithstanding the Company’s option to assume a defense of an
Indemnified Person, any
Indemnified Person shall have the right to employ
separate counsel in any such Action and participate in the defense thereof, with
the fees and expenses of such counsel shall be at the expense of the Company.
The Company shall not be liable for any settlement of any Action effected
without its prior written consent (which shall not be unreasonably withheld). In
addition, the Company will not, without prior written consent of Consultant,
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnification Person is party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Undefined
Person from all Liabilities arising out of such Action.
The Company also
agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in
contract or tort or otherwise) to the company for or in connection with Services
rendered or to be rendered by the Indemnified Person pursuant to this Agreement.
the transactions contemplated hereby or any Indemnified Person’s actions or
inactions in connection with any such Services except for Liabilities competent
jurisdiction which is no longer subject to appeal or further review to have
resulted solely from the gross negligence, bad faith, or willful misconduct of
an Indemnified Person in connection with such Services.
The
reimbursement and indemnity obligations of the Company set forth herein shall
apply to any modification of this Agreement and the Consulting Agreement and
shall remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person’s Services under or in the connection
with, this Agreement and the Consulting Agreement.
