EXHIBIT 10.20
INVESTOR RELATIONS CONSULTING AGREEMENT
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This INVESTOR RELATIONS CONSULTING AGREEMENT (this "Agreement") is made as
of May 20, 1997 by and between ZMAX Corporation, a Nevada corporation (the
"Company"), and Investor Communications Company, LLC, a Maryland limited
liability company (the "Consultant").
RECITALS
The Consultant is in the business of providing certain consulting and
educational services to companies in connection with investor relations and
communications.
The Company desires to engage the Consultant to provide it and its
affiliates with such services on the terms and conditions set forth in this
Agreement.
AGREEMENT
1. Engagement of Consultant. The Company agrees to engage the
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Consultant, and the Consultant accepts such engagement by the Company, on the
terms and conditions set forth in this Agreement.
2. Investor Relations Services.
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2.1 Services. The Consultant agrees to perform for the Company and its
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affiliates certain investor relations services, including providing stock price
information upon request, responding to investor, potential investor, and broker
inquiries, developing logos, other corporate identity materials, and investor
communications materials, monitoring and notifying the Company of any articles
or releases in the press regarding the Company and its affiliates or the "Year
2000" date conversion business and/or issues generally, and providing other
information and assistance as requested by the Company or its affiliates from
time to time (the "Services"). The Consultant will not, without the express
prior consent of the Company, contact on behalf of the Company or any affiliate,
or provide any information regarding the Company or any affiliate to any
individuals connected in any manner, directly or indirectly, to the financial
media or the national press. The Consultant will report to the President of the
Company any and all requests for information regarding the Company or any
affiliate from the media and will not provide any responses to such requests
other than offering no comment, except as otherwise directed by the Company.
The Consultant agrees to devote such time as is necessary for satisfactory
completion of the work required to perform the Services and to ensure that only
the most recent and accurate information as provided by the Company and/or its
affiliates or made available to the Consultant is used in performing the
Services. Consultant will at all times perform the Services to the best of
Consultant's abilities and in a professional and workmanlike manner.
2.2 Company Approval. The Consultant agrees that any and all educational
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material and any releases regarding the Company or any affiliate (collectively
"Releases") are subject to the prior review and approval of the Company in its
sole discretion. The Consultant shall submit a final draft of any Release to
the attention of the Company's President as well as a copy of such final draft
to counsel for the Company as soon as practicable prior to the anticipated date
of distribution of such
Release. The Company will use reasonable efforts to notify the Consultant of
its acceptance or rejection of each Release, provided, however that if the
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Company does not contact the Consultant prior to the proposed date of
distribution of the Release, such Release will be deemed rejected and may not be
used, published or disseminated by the Consultant in any way.
2.3 Ownership of Company Materials. The Consultant agrees that any and
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all materials, including without limitation, Releases (in draft or final), any
logo, other corporate identity materials, investor marketing materials, and all
other information compiled, created or developed by the Consultant pursuant to
this Agreement and/or that include or make any reference to the name or business
of the Company or of any affiliate (collectively "Company Materials") are works
made for hire and shall be the sole and exclusive property of the Company, and
the Consultant hereby irrevocably assigns, and agrees to assign, to the Company
all right, title and interest that Consultant may have in and to all such
Company Materials. The Consultant agrees to execute any and all further
documents, agreements, instruments, certificates, and other writings to effect
any such assignment and to otherwise cooperate with the Company to protect and
assure the Company's right, title and interest in all such Company Materials.
2.4 Consultation and Reporting. The Consultant will make a representative
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of the Consultant available at the request of the Company to (i) attend any
meeting of the Board of Directors of the Company, (ii) consult with the members
of the Board of Directors, officers of the Company and/or counsel to the
Company, and (iii) provide written reports regarding any matter or the
Consultant's general performance under this Agreement as reasonably requested by
the Company.
3. Compensation.
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3.1 Amount and Payment. In consideration of the Services performed by the
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Consultant, the Company will pay the Consultant compensation on a fee for
service basis in the amounts and at such times as set forth on Exhibit A. Any
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increase in any amount of compensation must have the prior written approval of
the President of the Company and will be documented by both parties signing an
amended Exhibit A that will be attached to this Agreement.
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3.2 Affiliate Specific Service Fee. The parties contemplate that the
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Company may request, from time to time, that the Consultant prepare or provide
corporate brochures, technical writing assistance, logo design, direct routing
e-mail set up and other Services specifically for an affiliate of the Company
and not in combination with Services being provided to the Company or the
preparation of Company materials ("Affiliate Specific Services"). The
Consultant and the Company will agree in advance on the fees to be paid to the
Consultant for the Affiliate Specific Services, which fees will be payable
within 30 days of receipt of the Consultant's invoice for such amounts, together
with reasonable supporting documentation therefor.
3.3 Expenses. Unless specifically authorized in writing by the President
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of the Company, the Consultant shall bear all of his own expenses incurred in
performing the Services and Affiliate Specific Services, including, without
limitation, rent, management, clerical help, general overhead and internal
costs, supplies and similar expenses. The Company will authorize only
reimbursement of reasonable out-of-pocket expenses for charges incurred by the
Consultant on behalf of the Company, including, without limitation, long
distance telephone charges, large job fax dissemination charges, cellular phone
charges, website fees, printing or special job copying fees, and costs and
expenses incurred by the Consultant in connection with coach travel more than 50
miles from the
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Consultant's principal offices and entertainment which is necessary to perform
the Services and the Affiliate Specific Services. All costs and expenses in
excess of $250 and all costs and expenses associated with travel and
entertainment must be pre-approved in writing by the President of the Company in
order to be reimbursable to the Consultant by the Company. All expenses will be
paid by the Company within 30 days of receipt of the Consultant's invoice for
such amounts, together with reasonable supporting documentation therefor.
4. Representations and Warranties.
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4.1 Ability of Consultant. The Consultant represents and warrants that it
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has the ability to carry out the obligations assumed by it under this Agreement
and has obtained and will maintain in good standing all required permits,
licenses and regulatory approvals necessary or advisable in order to carry out
the Services.
4.2 Compliance. The Consultant represents and warrants that the
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Consultant's performance of this Agreement in accordance with its terms will not
breach any obligation by which Consultant is bound or be in violation of any
applicable law, rule or regulation, and that Consultant will comply with all
such applicable laws, rules and regulations, including without limitation all
applicable securities laws.
4.3 No Other Agreements. The Consultant agrees not to enter into any
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agreement that will conflict with this Agreement or prevent the Consultant's
good faith performance of the terms hereof.
5. Confidentiality.
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5.1 The Company and the Consultant acknowledge that the Company may
disclose to the Consultant certain confidential information of the Company or
its affiliates ("Confidential Information") as the Company, in its sole
discretion, determines is necessary to assist the Consultant in the performance
of the Services. Such Confidential Information may include, without limitation,
financial information and data such as budgets, pricing, accounting, financial
projections or sources of financing, business plans and opportunities, project
descriptions, market or marketing information, technical or product information,
personnel information, information on suppliers, customers, clients, or other
actual or prospective business relationships, including potential investors,
information regarding property, methods of operation, and any other information
disclosed to the Consultant by the Company or any affiliate of the Company. In
addition, any information disclosed to the Company by a third party which the
Company is required to keep confidential is included within the meaning of
Confidential Information. For purposes of this Agreement, any information
which, directly or indirectly, is derived from or developed by the Consultant
(either solely or jointly with others at the Company or at any affiliate of the
Company) using any Confidential Information, or on behalf of the Company or any
affiliate, shall be included within the meaning of Confidential Information.
The Consultant acknowledges and agrees that the Confidential Information
represents confidential and proprietary information of the Company, and that the
Company derives significant benefit and goodwill from, among other things, the
Company and its consultants keeping such information confidential. It is
understood that such Confidential Information will remain the sole and exclusive
property of the Company, and that the Consultant will have no interest therein
or rights with respect thereto.
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5.2 The Consultant agrees that it will hold the Confidential Information
in strict confidence and will not use, reproduce, disclose or otherwise
disseminate the Confidential Information for the Consultant's own benefit or for
the benefit of others, or for any purpose other than performance of the Services
in accordance with the terms of this Agreement. The Consultant further agrees
not to take any action causing, or fail to take the action necessary in order to
prevent, any Confidential Information disclosed to or developed by the
Consultant to lose its character, or cease to qualify, as Confidential
Information.
5.3 The Consultant may disclose Confidential Information as necessary to
such employees or agents (collectively, "Representatives") of Consultant (i) who
require such information in order to assist the Consultant directly in
performing the Services and only to the extent of such requirement, and (ii)
whom Consultant has informed of the confidentiality, non-disclosure and
exclusivity obligations of this Agreement. The Consultant will diligently
monitor and enforce each such Representative's compliance with the terms of this
Agreement, and, upon the request of the Company, will promptly furnish to the
Company a list of all individuals who have had access to the Confidential
Information. Notwithstanding the foregoing, the Consultant agrees to be
responsible for any breach of this Agreement by any of the Consultant's
Representatives.
5.4 It is understood, and the Consultant agrees, that the obligations
imposed under this Section 5 will survive the termination, for any reason
whatsoever, of this Agreement.
6. Exclusivity.
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6.1 The Consultant agrees that because of the confidential and sensitive
nature of the Confidential Information and the access to and special knowledge
of affairs and operations of the Company and its affiliates that the Consultant
and/or its Representatives will have as a result of its relationship with the
Company under this Agreement, the Consultant will not (except with the prior
written consent of the Company), during the term of this Agreement, engage,
directly or indirectly, on the Consultant's own behalf or in the service of or
on behalf of others, in any work or services similar to the Services for any
enterprise or entity engaged in the Year 2000 date conversion business. The
Company and the Consultant hereby acknowledge and agree that the Consultant's
compliance with this provision would not prevent the Consultant from earning a
reasonable livelihood since the Consultant's experience and capabilities are
such that the Consultant is able to engage in business activities that are not
restricted by this Agreement.
7. Relationship of the Parties. The Company and the Consultant
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acknowledge and agree that Consultant is an independent contractor, and that
this Agreement does not constitute or appoint Consultant as a partner, employee
or agent of the Company and that the Consultant has no authority to bind the
Company in any way.
8. Indemnification.
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8.1 Indemnification By Consultant. The Consultant agrees to indemnify the
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Company from and hold it harmless against any loss, liability, damage, action,
cause of action, cost or expense (including, without limitation, all attorneys'
fees) arising out of: (i) any unauthorized act or omission of the Consultant
which may be determined to be binding upon the Company; (ii) any breach by the
Consultant or its Representatives of any of the provisions of this Agreement; or
(iii) the gross negligence, recklessness or willful misconduct of the Consultant
or any of its Representatives.
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8.2 Indemnification by Company. The Company agrees to indemnify the
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Consultant from and hold it harmless against any loss, liability, damage,
action, cause of action, cost or expense (including, without limitation, all
attorneys' fees) incurred by the Consultant arising out of a claim against the
Consultant regarding information given to the Consultant by the Company that is
determined to be incorrect due to the gross negligence or willful misconduct of
the Company.
9. Remedies. By virtue of the duties, responsibilities and special
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knowledge of the affairs and operations of the Company that the Consultant will
have as a result of its relationship with the Company under this Agreement, the
Consultant acknowledges that great loss and irreparable harm would be suffered
by the Company if the Consultant or any of its Representatives should breach or
violate any of the covenants contained in this Agreement, and that money damages
alone would be an inadequate remedy for such loss and harm. The parties agree
that each such covenant is reasonable and necessary to protect the interests of
the Company. Therefore, the Company will be entitled, in addition to any other
remedies available at law or in equity, to equitable relief in the form of a
restraining order, injunction, and any other similar remedy in order to prevent
a breach or threatened breach of the provisions of this Agreement, without the
need to post a bond or other security. The existence of any claim of the
Consultant against the Company shall not constitute a defense to the enforcement
by the Company of the covenants contained in this Agreement.
10. Term; Renewal and Termination
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10.1 This Agreement will commence as of the date set forth above and
remain in effect until May 19, 1998, unless sooner terminated in accordance with
this Section 10. The parties may extend the term of this Agreement for
additional one-year periods by providing written notice and mutually agreeing
upon the renewal of this Agreement prior to any expiration of this Agreement.
Any changes to this Agreement upon renewal will be documented in writing and
signed by an authorized representative of each of the parties.
10.2 Either party may terminate this Agreement at any time prior to its
expiration by giving not less than 30 days prior written notice to the other
party.
10.3 Notwithstanding the above, the Company may terminate this Agreement
immediately for: (i) fraud, dishonesty, gross negligence or willful misconduct
by the Consultant or any of its Representatives in connection with the
performance of the Services; (ii) failure by the Consultant to perform any
covenant or obligation under this Agreement that is not cured to the Company's
satisfaction within 5 days of notice to the Consultant identifying the failure;
(iii) breach by the Consultant or any of its Representatives of any other
obligation under this Agreement; or (iv) conviction of the Consultant of a crime
punishable by imprisonment.
10.4 Upon expiration or termination of this Agreement, all rights and
obligations of the parties towards each other shall cease and terminate, except
that (i) the Company shall promptly pay to the Consultant all accrued fees and
expenses due under the terms of this Agreement to the Consultant through the
date of termination, and (ii) the provisions of Sections 5, 8, 9, and 10 of this
Agreement shall survive the expiration or termination, for any reason
whatsoever, of this Agreement. Upon expiration or termination of this
Agreement, the Consultant will promptly return to the Company any and all
Confidential Information, Company Materials, drafts, Releases, and any other
materials and information and all copies thereof, in whatever form, to the
Company and deliver to
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the Company a certificate executed by an authorized representative of the
Consultant certifying that all such items in the Consultant's possession have
been delivered to the Company.
11. Notices. Any notices required or permitted under this Agreement shall
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be in writing and delivered in person, sent by facsimile, or sent by registered
or certified mail, return receipt requested, with proper postage affixed, to a
party at the following address, or any notified change thereto:
If to the Company: ZMAX Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: President
If to the Consultant: Investor Communications Company, LLC
0000 Xxxx Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
All notices will be effective upon receipt or refusal of receipt.
12. Assignment. This Agreement, and the rights and obligations of the
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Company under the provisions hereof, may not be assigned by either party hereto,
except that the Company may assign this Agreement to any successor in interest
of the Company, whether by merger, consolidation or otherwise. This Agreement
will inure to the benefit of, will be binding upon, and will be enforceable by
the parties hereto and any assignee of the Company. This Agreement and the
rights and obligations of the Consultant under the provisions hereof are
personal to the Consultant and may not be assigned by the Consultant.
13. Severability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement shall be construed and carried
out as nearly as possible according to its original terms and intent.
14. Waiver. The failure or delay of either party to exercise any of the
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rights or remedies provided herein will not operate as a waiver thereof; nor
will any waiver by either party of any breach of this Agreement operate as a
waiver of any other or subsequent breach. No provision of this Agreement may be
waived except in a writing signed by the party granting such waiver.
15. Governing Law. This Agreement and all amendments, modifications,
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alterations or supplements hereto shall be governed by, and construed in
accordance with, the laws applicable in the State of Maryland, without reference
to the principles thereof regarding conflicts of law. Each of the
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parties hereto agrees to submit to the jurisdiction of the state courts and, to
the extent jurisdiction can be obtained, U.S. federal district courts sitting in
the State of Maryland.
16. Entire Agreement; Amendment. This Agreement and all Exhibits and
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supplements attached hereto constitute the entire and exclusive understanding
and agreement of the parties regarding the subject matter addressed herein. No
amendment or modification of this Agreement will be valid or binding upon the
parties unless made in writing and signed by both parties hereto. All prior
understandings and agreements, whether written or oral, relating to the subject
matter of this Agreement, including, without limitation, the ICC Agreement, are
hereby expressly terminated.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
INVESTOR COMMUNICATIONS COMPANY ZMAX CORPORATION
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxx
President President
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Exhibit A
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Fee Schedule
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From May 20, 1996 through August 20, 1996 the fee for the Services will be
$10,000 per month, payable on or before the 10th business day of each month.
The fee will be prorated for any partial month during this period. Thereafter
the fee for the Services will be such amount as may be agreed to by the parties
and documented by an amendment to this Exhibit A signed by both parties.
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