10.3 Wellington Consulting Agreement
CONSULTING AGREEMENT
This Agreement is made as of this 27th day of November 2000, by and between
xxxxxxxx.xxx, (the "Company"), a Pennsylvania corporation with its principal
offices at 0000 Xxxxx 000, Xxxxxxxxxxx, XX 00000 and Wellington Capital
Corporation ("WCC"), a New York corporation. The Company's common stock is
publicly traded on the OTC:BB under the symbol "THAT".
Witnesseth
WHEREAS, the Company requires expertise in the area of investment banking to
support its business and growth; and
WHEREAS, WCC has substantial contacts among the members of the investment
community, investment banking expertise, and desires to act as a consultant to
provide investment banking and advisory services;
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants contained herein and subject specifically to the conditions hereof,
and intending to be legally bound thereby, the parties agree as follows:
1. Certain Definitions. When used in this Agreement, the following terms
shall have the meanings set forth below
1.1 Affiliate - meant any persons or entices controlled by a party.
1.2 "Business Day" -means any day except Saturday, Sunday and any day
which is designated in the State of New York as a legal holiday or a day or
which banking institutions are legally required or authorized to close.
1.3. "Contact Person" - The person who shall be primarily responsible for
carrying out the duties of the parties hereunder. The Company and WCC shall
each appoint a Contact Person to be responsible for their respective duties.
In the event that one party gives notice to the other party in writing that,
in their reasonable opinion, the other party's Contact Person is not able to
fulfill their duties and responsibilities hereunder, both parties shall
mutually agree upon a replacement Contact Person within 10 days of the said
notice.
1.4 "Securities" - means the one million six hundred fifty thousand
(1,650,000) shares of restricted common stock of xxxxxxxx.xxx as defined
herein.
2. Services to be Rendered by WCC. WCC shall render the following services:
2.1. Advice and Counsel - WCC Mill provide advice and counsel regarding
the Company's strategic business and financial plans, strategy and
negotiations with potential lenders/investors, merger/acquisition candidates,
joint ventures, corporate partners and others involving financial and
financially related transactions.
2.2. Introductions to the Securities Brokerage Community -WCC shall use
its contacts in the brokerage community to assist the Company in establishing
relationships with securities dealers in North America and to provide the most
recent corporate information to interested securities dealers on a regular and
continuous basis. WCC understands that this is in keeping with the Company's
business objective to establish an international network of securities dealers
who have an interest in the Company's securities.
2.3. Market Intelligence - WCC will monitor and react to sensitive market
information on a timely basis and provide advice, and counsel and proprietary
intelligence (including but not limited to information or price, volume and
the identification of market-makers, buyers and sellers) to the Company in a
timely fashion with respect to securities in which the Company has an
interest. The Company understands that this information is available fore
other sources but acknowledges that WCC can provide it in a more timely
fashion and with substantial value-added interpretation of such information.
The foregoing notwithstanding, no information will be provided to the Company
with respect to the activities of any other WCC customers or customer accounts
without such customer's prior consent.
2.4 Company and/or Company Client Transaction Due Diligence - WCC will
undertake due diligence on all proposed financial transactions affecting the
Company, of which WCC is notified in writing in advance, including
investigation and advice or the financial, valuation and stock price
implications thereof.
2.5. Institutional Debt/Financing- WCC shall, as deemed necessary by
WCC, introduce certain institutional investors and/or lending institutions to
the Company for the purpose of providing equity and/or debt financing, on a
best-efforts basis, in an amount and under terms and conditions to be
negotiated at the appropriate points in time. The Company and/or the Company's
outside counsel shall have ultimate authority and ultimate responsibility with
respect to the accuracy, adequacy and legitimacy of any documents, including
any offering memoranda or any other documents. WCC makes no representations
concerning its ability to place any of the Company's securities. No assurance
can be given to the Company that any broker/dealer will be successful in
selling or placing any of the Company's securities. WCC takes no
responsibility for and makes no representations concerning the conduct of any
investor/lender introduced to the Company, whether or not said investor/lender
purchases securities or advances Loans.
2.6. Additional Duties - the Company and WCC shall mutually agree upon
any additional duties which WCC may provide.
2.7. Best Efforts - All services to be provided by WCC shall be provided
on a best efforts basis. WCC shall devote such time and effort to the affairs
of the Company as is reasonable and adequate to render the consulting services
contemplated by this Agreement. WCC cannot guarantee results on behalf of the
Company, but shall pursue all reasonable avenues available through its network
of financial contacts. The Company hereby acknowledges that the services
contemplated by this Agreement may not result in an enhancement of or to the
Company. WCC makes no representations regarding the performance an and/or
conduct of any of the contacts introduced to the Company. The Company has the
absolute authority and responsibility for the consequences associated with the
acceptance and/or rejection of any proposals submitted by WCC's contacts. At
such time as an interest is expressed by a third party in the Company's needs,
WCC shall notify the Company and advise it as to the source of such interest
and any terms and conditions of such interest. The acceptance and consummation
of any transaction is subject to acceptance of the terms and conditions by the
Company. It is understood that a portion of the compensation to be paid
hereunder is being paid by the Company to have WCC remain available to assist
it with transactions on an as-needed basis.
2.8. Services Excluded - The parties may specifically exclude certain
services from the operation : of this Agreement by written addendum hereto and
acknowledge and agree that the following items are not intended to be included
among the services to be provided by WCC:
2.8.1 WCC agrees that neither it or any affiliate or fund with which it
is associated is or shall be a market-maker, dealer or underwriter of any of
the Company's securities (but may be a placement agent from time to time) in
the Company's securities;
2.8.2 Any payments made herein to WCC are not, and shall not be
construed as, compensation to WCC for the purposes of making a market, to
cover WCC out-of-pocket expenses for making a market, or for the submission by
WCC of an application to make a market in any of the Company's securities;
2.8.3 No payment made herein to WCC are for the purpose of affecting
the price of any security or influencing any market-making functions,
including but not limited to bid/ask quotations; initiation and termination of
quotations, retail securities activities, or for the submission of any
application to make a market.
2.8.4 It is understood and agreed that in performing any of the
services contemplated by this Agreement, WCC shall not be taken to be
rendering any legal opinions or any work that is in the ordinary purview of a
Certified Public Accountant or of a licensed NASD broker/dealer.
3. Term - WCC agrees to provide the services described herein beginning on
November ______, 2000 and continuing until October _______, 2001. Either party
shall have the right for any reason and at any time during the term of this
Agreement, upon thirty (30) days written notice, to terminate this Agreement.
In the event of termination, WCC shall return any unsold shares, as of the
date the termination notice is received by the other party, to a maximum of
one million (1,000,000) out of the total one million six hundred and fifty
thousand (1,650,000) common shares issued to WCC.
4. Compensation to WCC.
4.1 Common Stock- The Company, agrees to issue to WCC one million six
hundred and fifty thousand (1,650,000) restricted shares of common stock of
the Company. The Company shall register for resale for WCC said one million
six hundred and fifty thousand (1,650,000) shares of common stock pursuant to
the Registration Rights Agreement between the parties set out in Schedule A.
The common stock shall on or before the time of delivery, be duly authorized,
and when issued, will be duly and validly issued, fully paid and
non-assessable and will not subject WCC to liability by reason of being such
holder.
4.3. Expenses - The Company shall be responsible for all fees and
expenses pertaining to the issuance, listing or registration of any Securities
contemplated by this Agreement, including, but not limited to, SEC
registration fees, transfer agent fees, escrow fees, NASD registration or
exchange listing fees. It is expressly agreed and understood that WCC's
compensation as provided in this Agreement dots not include normal arid
reasonable out-of-pocket expenses, which expenses shall be pre-approved by the
Company. Said expenses shall be reimbursed by the Company independent of any
fees and/or commissions described in this Agreement. Expenses shall be
reimbursed, in cash, within ten (10) calendar days of being incurred by WCC.
4.4. Introduction Fees- WCC shall receive a fee equal to ten percent
(10%) of the gross dollar value of securities purchased by any in
investor/lender introduced to the Company by WCC. For purposes of this section
4.4, securities shall mean common stock, preferred stock, warrants, options,
rights, convertible preferred stock, convertible debentures, convertible notes
or any security or instrument convertible or exchangeable for common stock.
Said fee shall be paid to WCC in cash from the proceeds of each and every
closing. The escrow attorney shall wire WCC's cash fee, as directed by WCC,
simultaneously with the transmittal of the Company's proceeds. As additional
compensation, WCC shall receive at the time of closing, a number of shares of
common stock of the Company equal to ten percent (10%) of the gross dollar
value of securities purchased by any investor/lender introduced to the Company
by WCC. If multiple closings are necessary, said cash fees and common stock
shall be distributed to WCC on a pro rata basis at each closing. The common
stock shall be registered along with the securities purchased by any
investor/lender.
4.5. Credit Facilitv Fees- In the event that WCC arranges debt financing
for the Company including, but not limited to, credit facilities based on
accounts receivables, inventory, equipment, real estate contracts, cash flow,
the general credit worthiness of the Company or a combination of any of the
foregoing, WCC shall receive a fee equal to four percent (4%) of the gross
dollar value of the credit facility arranged. Said fee shall be paid to WCC,
in cash, at the closing. As additional compensation, WCC shall receive at the
time of closing, a number of shares of common stock of the Company equal to
three percent (3%) of the gross dollar value of the credit facility arranged.
4.6. Additional Compensation- if at any time during the term of this
Agreement and for a period of twenty-four (24) months following the
termination of this Agreement, the Company and/or its affiliates emerges with,
acquires assets or any other property, engages in any other type of business
combination, with gay of the entities, advisors, or consultants introduced to
the Company and/or its affiliates, the Company shall pay to WCC a finder's fee
equal to five percent (5%) of the total gross proceeds or value of such
transaction. Said fee shall be paid to WCC, in cash at the closing.
5. WCC'S REPRESENTATIONS AND WARRANTIES
WCC represents and warrants that:
5.1. WCC Experience WCC has the experience and expertise to perform the
services contemplated by this Agreement and to evaluate an investment in the
Securities.
5.1 Investment Purpose. It is acquiring the Securities to be issued or
issuable to it hereunder for its own account for investment only and not with
a view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or exempted under
the Securities Act of 1933, as amended (the 1933 Act"); provided, however,
that by making the representations herein, WCC does not agree to hold any of
the Securities for any minimum or other specific term and reserves the right
to dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act.
5.2 Reliance on Exemptions. WCC understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws
and that the Company is relying in part upon the truth and accuracy of and
WCC's compliance with, the representations, warranties, agreements
acknowledgments and understandings of WCC set forth herein in order to
determine the availability of such exemptions and the eligibility of WCC to
acquire the Securities.
5.3 Information. WCC and its advisors if any, have been furnished with
all public materials relating to the business, finances and operations of the
Company and materials relating to issuance of the Securities which have been
requested by WCC. WCC has not received, nor will the Company provide, any
non-public information to WCC during the term of this Agreement. WCC
acknowledges that it and such of its advisors as it considers relevant have
been afforded full and sufficient opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations conducted by
WCC or its advisors or its, representatives shall modify, amend or affect
WCC's right to rely on the completeness and accuracy of the materials provided
to WCC by or on behalf of the Company with respect to the transactions
contemplated hereby or on the Company's representations and warranties
contained in this Agreement. WCC understands that its investment in the
Securities involves a high degree of risk. WCC has sought such accounting,
legal and tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Securities.
5.4. No Governmental Review. WCC understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Securities or the
fairness or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
5.5 Transfer or Resale. WCC understands that, except as provided in the
Registration Rights Agreement: (i) the Securities have not been and are nor
being registered under the 1933 Act or any state securities laws, and may not
be offered for sale sole, assigned or transferred unless (A) subsequently
registered thereunder, (B) WCC shall have delivered to the Company an opinion
of counsel in a generally acceptable form, to the effect that the Securities
to be sold, assigned or transferred may be sold: assigned or transferred
pursuant to an exemption from such registration, (C) WCC provides the Company
with reasonable assurance that the Securities can be sold, assigned or
transferred pursuant to Rule 144 promulgated under the 1933 Act (or a
successor rule thereto) ("Rule 144"); (ii) any sale of the Securities made in
reliance on Rule 144 may be made only in accordance with the terms of Rule 144
and further, if Rule 144 is not applicable, any resale of the Securities under
circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the 0000
Xxx) may require compliance with some other exemption under the 1933 Act or
the rules and regulations of the SEC thereunder; (D) such transferee or
assignee is an Affiliate of WCC.
5.6 Legend. The parties agree that, as of the date first above written,
the certificates representing the Securities have not been registered under
the 1933 Act as contemplated by the Registration Rights Agreement, and except
as set forth below, shall bear a restrictive legend in substantially the
following form (and a stop-transfer order will be placed against transfer of
such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT Of 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE. OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT.
5.7. The legend set forth above shall be removed and the Company shall
issue a certificate without any legend to the holder of the Securities upon
which it is stamped, if (i) such Securities are registered for resale under
the 1933 Act, (ii) in connection with a sale transaction, such holder provides
the Company with an opinion of counsel to the effect that a public sale,
assignment or transfer of such Securities may be made without registration
under the 1933 Act, or (iii) such holder provides the Company with reasonable
assurances that such Securities can be sold without restriction pursuant to
Rule 144(k).
6. CERTAIN AGREEMENTS BY THE COMPANY
6.1. Registration. The Company agrees to register the one million
(1.000,000) shares of common stock underlying the common stock purchase
warrant for re-sale in accordance with the terms of the Registration Rights
Agreement attached hereto.
6.2. Form D: Blue Sky Filings. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D. The Company shall
take such action and make such filings as the Company shall reasonably
determine is necessary and as required by applicable law to qualify the
Securities under, or obtain exemption for the Securities from, the applicable
securities or "Blue Sky" laws of the states of the United States.
6.3. Reservation of Shares. The Company shall take all action necessary
to at all times have authorized, and reserved for the purpose of issuance, no
less than 100% of the number of shares of Common Stock needed to satisfy the
Company's obligations under this Agreement.
6.4. Listing. The Company shall list all of FCC's shares of Common Stock
within 10 days of the date of issuance to WCC on the OTC Bulletin Board or if
applicable, the Nasdaq SmallCap Market. The Company shall maintain the Common
Stock's authorization for listing on the Bulletin Board or if applicable the
Nasdaq SmallCap Market or any other Subsequent Market on which the Common
Stock is then listed or traded. Neither the Company nor any of its
Subsidiaries shall take any action which may result in the delisting or
suspension of the Common Stock on the OTC Bulletin Board, Nasdaq SmallCap
Market or on any Subsequent Market on which the Common Stock is then listed or
traded (other than to switch listings from the OTC Bulletin Board to a
Subsequent Market). The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section.
7. Indemnification
7.1. By the Company - The Company agrees to indemnify and hold harmless
WCC, and its officers, directors, employees and each person who WCC contracts
in connection with this Agreement (provided such contract person is approved
by the Company in writing) 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 by reason of any act, neglect, default or omission, or any untrue
or alleged untrue statement of a material fact, or any misrepresentation of
any material fact or any breach of any material warranty or covenant as the
Company or any of its agents, employees, or other representatives arising out
of or in relation to, this Agreement. Nothing herein is intended to nor shall
it relieve either party from liability for its own act, omission or
negligence. All remedies provided by law or in equity shall be cumulative arid
not in the alternative.
8. Company Representations. The Company hereby represents, covenants and
warrants to WCC as follows:
8.1. Authorization - The Company and its signatories herein have full
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
8.2. No Violation - Neither the execution and delivery of this Agreement
nor the consummation of die transactions contemplated hereby will violate any
provision of the charter or by-taws of The Company, or violate any ten: or
provision of any other Agreement or any statute or law.
8. 3. Consents - All consents required or necessary to the consummation
of the transactions contemplated hereby, including, without limitation,
consents from federal, state, or local governmental agencies and consents
provided for under any credit agreement, material contract lease or other
agreement to which the Company is a party, have been obtained or will be
obtained prior to the commencement of the term.
8.4. Company's Material Representations. All representations and
statements provided about the Company to WCC are true and complete and
accurate to the best of the Company's knowledge.
8.5. WCC Reliance - WCC has and will rely upon the documents instruments
and written information furnished to WCC by the Company its officers or
designated employees.
8.6 DTC Reports - The Company shall provide WCC with copies of weekly DTC
reports.
8.7. Other Activities of WCC The Company recognizes that WCC now renders,
and may continue to render, consulting and advisory services to other
companies which may or may not have policies and conduct activities similar to
those of the Company. WCC shall be free to pursue, conduct and carry on for
WCC's own account (or for the account of others) such activities employment,
ventures businesses and other pursuits as WCC in its sole, absolute and
unfettered discretion, may elect.
9. Confidentiality.
9.1 The Company agrees to provide reasonable security measures to keep
information confidential where release may be detrimental to WCC's interests.
The Company shall require their employees, agents, affiliates, sub-Company's,
other licensees, and others who will have access to the information through
WCC, to first enter into appropriate nondisclosure agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
9.2. WCC will not, during its engagement by the Company pursuant to this
Agreement, disclose or use for its benefit, any confidential information,
knowledge or data of the Company in any way acquired or used by WCC daring its
engagement by the Company. Confidential information, knowledge or data of the
Company shall not include any information which is or becomes generally
available to the public other than as a result of a disclosure by WCC.
9.3 The Company, its officers, directors, affiliates, and agents shall
not contact, approach or solicit any business or any capital from individual
or entity under contract or introduced to the Company by WCC without prior
written consent of WCC. The Company hereby agrees to keep confidential the
name and identity of any investors or potential investors or lenders that are
provided by WCC. The Company shall not disclose the name, address, phone
and/or fax numbers and identity of any investors or potential investors or
lenders that are provided by WCC to any consultants, finders, agents, etc. In
the event that the Company acquires any capital, at any time, from an investor
introduced, either directly or indirectly by WCC, WCC shall receive a
commission of the type and amount outlined above. In the event the Company
conducts a subsequent private placement of any kind within one year from the
date first above written, WCC shall have the right of first refusal to conduct
such offering according to the terms established by the Company. Said right of
first refusal shall allow five (5) business days for WCC to match any bona
fide offer. The Company shall not issue any of its securities to any other
person or entity during the term of this Agreement without the prior written
consent of WCC.
10. Miscellaneous provisions.
10.1 Amendment and Modification - This Agreement and any part thereof may
be amended, waived modified or supplemented only by written Agreement of WCC
and the Company.
10.2. Strict Compliance once - No waiver or failure to insist upon strict
compliance with any obligation, covenant, agreement or condition under this
Agreement cement shall operate as a waiver of or estoppel with respect to,
any, subsequent or other failure.
10.3. Notices - Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally: (ii) the date of transmission if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:00 p.m. (New York time) on a Business
Day. (iii) the Business Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 5:00 p.m. (New York time); or (iv) upon
receipt, when delivered by a reputable overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
thatlook-com
0000 Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx Xxxxxx, CEO
If to WCC:
Wellington Capital Fund, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxx. XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Marc Sharing, President and/or Colin 0. Wrynn.. Sec./Tress.
Each party shall provide five days' prior written notice to tae other party of
any change in address or telephone number.
10.4. Contact Persons. The Contact Person for the Company is Xxxxxx
Xxxxxx Xxxxxx CEO. The Contact Person for WCC is Xxxx Xxxxxxx, President
and./or Colin 0. Wrynn, Secretary/Treasurer.
10.5. 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 but neither this Agreement nor any right,
interests or obligations hereunder shall be delegated or assigned by any of
the parties hereto without the prior written consent of the other party.
10.6. Publicity - Neither WCC nor the Company shall make or issue, or
cause to be made or issued, any announcement or written statement concerning
this Agreement or the transaction contemplated hereby for dissemination to the
general public without the prior consent of the other party. This provision
shall not apply, however, to any announcement or written statement required to
be made by law or the regulations of any federal or state governmental agency,
except that the parties shall agree concerning the timing and content of such
announcement before such announcement is made.
10.7 Governing Law - 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 New York, without regard to its conflict of law doctrine.
Not-with-Standing the provisions of paragraph 11 compelling compulsory
arbitration, the Company and WCC agree that if action is instituted to enforce
or interpret any provision of this Agreement the jurisdiction and venue shall
be in the state or federal court sitting in New York City, New York.
10.8 Counterparts - This Agreement nay be executed simultaneously in two
or more counterparts or by telefacsimile, each of which shall be deemed an
origins but all of which together shall constitute one and the same
instrument.
10.9 Headings - The heading of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereto or affect
in any way the meaning or interpretation of this Agreement.
10.10. Entire Agreement - This Agreement, including any Exhibits hereto,
and the other documents and certificates delivered pursuant to the terms
hereto, set forth the entire Agreement and understanding of the parties hereto
in respect of the subject matter contained herein, and superseded all prior
Agreements, promise, covenants arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto.
10 11. 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.
10.12. Survivability - If any part of this Agreement is found to be
invalid or unenforceable, that part shall be severable from the remainder of
this Agreement.
10.13. Further Assurances - Each of the parties agrees that it shall from
the time to tune take such actions and execute such additional instruments as
may be reasonably necessary or convenient to implement and cam, out the intent
and purpose of this Agreement.
10.14. Right to Data After Termination - After termination of this
Agreement each parry shall be entitled to the return of all copies of any and
all information provided to the other prior to the date of termination and not
previously returned to it.
10.15. Relationship of the Parties - WCC is an independent contractor.
Nothing contained in this Agreement shall be deemed to cause either party to
become the partner, agent or legal representative of the other, nor create any
fiduciary relationship or joint venture between them except as otherwise
expressly provided herein. It is not the intention of the parties to create
not shall this Agreement be construed to create any commercial relationship or
other partnership. Neither party shall hate any authority to act for or to
assume any obligation or responsibility on behalf of the other party, except
as otherwise expressly provided herein.
11. Arbitration. The parties hereby agree to waive their right to seek remedy
in court, including their right to jury trial and to submit all disputes,
controversies, or differences between the Company or WCC or anyone claiming
through or under them including any of their respective officers, directors,
agents or employees, arising out of, in connection with or as a result of this
agreement, to final aid binding arbitration rather than through litigation.
11.1. Any disputing party shall submit the dispute for resolution in New
York, New York within five (5) days after receiving a written request to do so
from any of the aforesaid parties.
11.2. 1f any party to a dispute fails to submit tine dispute to
arbitration on request, then the requesting party may itself commence an
arbitration proceeding, but is under no obligation to do so.
11.3. If any 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 the arbitration, forum, 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.
11.4. Any arbitration conducted hereunder shall be conducted by an
arbitrator selected by the American Arbitration Association who is mutually
acceptable to the parties. Such arbitration shall be conducted pursuant to the
commercial Arbitration Rules of the American Arbitration Association.
11.5. The parties shall accept the decision of any award as being final
and conclusive and agree to abide thereby.
11.6. Any arbitration award shall be submitted to any court as a basis
for judgement and execution for collection.
The remainder of this page has been intentionally left blank.
Signature page to follow.
IN-WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
XXXXXXXX.XXX,
By:/s/ Xxxxxx Xxxxxx Xxxxxx
------------------------
Xxxxxx Xxxxxx Xxxxxx, CEO
WELLINGTON CAPITAL. CORPORATION
By:
-----------------
Colm 0. Wrynn, Vice President, Secretary.Treasurer
By:/s/Xxxx X. Xxxxxxx
------------------
Xxxx X. Xxxxxxx President
