Consulting Agreement Between
Excelco Systems International and Whirlwind Marketing, Inc.
This Consulting Agreement made and entered into this 18 Day of October 2001 by
and between Whirlwind Marketing, Inc., having an office 000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxx Xxxxxxxxxx, Xx 00000 (hereinafter "WLWD") and ExCelco Systems
International (hereinafter "Consultants") independent contractors, having an
xxxxxxx Xxxxxxxx Xxxx, Xxxxx, X.X., Xxxxx, 000000 and 000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxx, Xxxxxx, X0X 0X0.
P R E M I S E S
WHEREAS, WLWD, through its operations is engaged in the business of Developing
fundraising solutions for non-profits, schools, league sports and so on.
WHEREAS, Consultant represent themselves as qualified to perform the desired
services required by WLWD.
WHEREAS, WLWD desires to retain Consultant to act as a finder for acquisition
Candidates, to possibly provide engineering services, and/or assist in technical
staffing for WLWD and its subsidiaries, and WLWD shall compensate Consultant for
the services by issuing Consultant shares of the WLWD common stock.
The Consultant is willing to perform such consulting services on the terms and
conditions herein contained.
A G R E E M E N T
NOW THEREFORE, in consideration of the above stated premises and the promises
herein contained, and for good and valuable consideration, the parties hereto
agree as follows:
1. Engagement of Consultant:
WLWD hereby retains Consultant and Consultant agrees to act as a finder for
potential acquisition candidates in the technology segment of its business.
2. Terms:
WLWD hereby retains Consultant for a period of five (5) months ending February
28, 2002, and renewable after February 28, 2002, on a monthly basis, only by a
written notification from WLWD to Consultant, to provide the services set forth
herein.
A. Scope of Consultant's Work:
1. On a non-exclusive basis, Consultant shall introduce WLWD to possible
acquisition candidates, evaluate WLWD's possible acquisition candidates, review
the business and operation of the candidates, assist WLWD in obtaining
information for its due diligence review of the possible candidates, and
coordinate the dissemination of information to and from the candidates.
B. Work Assignment
1. Specific verbal and written tasks are to be coordinated through Xx. Xxxx X.
Xxxxxx, President of WLWD with periodic plans submitted as well as ongoing
monthly progress reports sent to Xx. Xxxx X. Xxxxxx. The parties shall document
each candidate introduced by Consultant.
2. Compensation: As compensation for the services to be rendered by Consultant
hereunder, Consultant shall be paid, and Consultant agrees to accept, the
following:
a. WLWD shall pay to consultant 250,000 shares of S8 Shares.
5. Termination of Agreement by the Company. It is understood and agreed that
either party hereof, may at any time and for any reason whatsoever, terminate
this agreement by giving thirty (30) days prior written notice to the other
party. At the conclusion of this agreement, or its termination, all data
provided by WLWD to Consultant shall be returned to WLWD. All compensation due
for completed services through the date of termination shall be paid to
Consultant immediately upon termination.
6. Reports To WLWD
a. Commencing September 1st, 2001, and at least once each month thereafter
during the Term of this Agreement, Consultant shall prepare and present to WLWD
a written report describing its activities and its progress toward meeting the
objectives mutually agreed upon by Consultant and WLWD.
b. Throughout the Term of this Agreement, Consultant may also provide the
officers, directors, employees or designees of WLWD with verbal reports
concerning its activities.
This Agreement may be extended beyond the period specified herein as set forth
herein.
7. Confidential Information
WLWD agrees to promptly provide and fully disclose to Consultant any and all
information regarding WLWD, which Consultant deems pertinent to its engagement
hereunder. Consultant acknowledges that any and all knowledge or information
concerning WLWD and its affairs obtained by Consultant, his principals,
employees and/or contractors in the course of his engagement hereunder will be
deemed "confidential" and will be held inviolate by him and that he will conceal
the same from any and all other persons and entities, including, but not limited
to, competitors of WLWD and that he will not impart any such knowledge to anyone
whosoever during or after the term of hereof. As used herein, "confidential"
knowledge or information means: (a) all information regarding WLWD, which is not
generally available to the public; and (b) all information regarding WLWD, which
was received by Consultant from a source with confidentiality obligations to
WLWD. Consultant shall, upon the termination of his engagement by WLWD for any
reason whatsoever, immediately surrender and turn over to WLWD all
"confidential" material including, but not limited to, books, forms, records,
WLWD lists and all other papers and writings relating to WLWD and all other
property belonging to WLWD, it being understood and agreed that the same are the
sole property of WLWD. This includes any and all papers, documents and computer
records created or held by Consultant. In addition to any other rights or
remedies to which WLWD may be entitled, WLWD shall have the right to obtain an
ex parte restraint upon the breach or threatened breach of this section. This
section shall survive termination of this Agreement.
8. Best Efforts Basis.
Consultant agrees that he will at all times faithfully and to the best of his
experience, ability and talents, perform all the duties that may be required of
and from Consultant, pursuant to the terms of this Agreement. Consultant does
not guarantee that his efforts will have any impact on Client's business or that
any subsequent financial improvement will result from Consultant's efforts.
Client understands and acknowledges that the success or failure of Consultant's
efforts will be predicated on Client's assets and operating results.
9. Client's Rights to Approve Transactions.
WLWD expressly retains the right to approve, in its sole discretion, each and
every transaction introduced by Consultant that involves WLWD. Consultant and
WLWD agree that Consultant is not authorized to enter into agreements on behalf
of WLWD.
10. WLWD Under No Duty or Obligation to Accept or Close on any Transactions. It
is mutually understood and agreed that WLWD is not obligated to accept or close
any promotional proposal, acquisition, or merger transactions submitted by
Consultant.
11. Costs and Expenses.
Consultant shall be responsible for all out-of-pocket expenses, travel expenses,
third party expenses, filing fees, copy and mailing expenses that Consultant may
incur in performing Consulting Services under this Agreement. However, such
costs must be fair and reasonable, and shall be reimbursed to Consultant if
pre-approved in writing by WLWD and payable within thirty (30) days from the
date that the Consultant submits an approved expense report to WLWD.
12. Consultant Status
Consultant acknowledges that he is providing services hereunder as an
independent contractor. Accordingly, Consultant agrees that any taxes associated
with the performance of the services hereunder shall be his sole responsibility.
Consultant further agrees that nothing herein shall create a relationship of
partners or joint venture's between Consultant and WLWD
13. Representations Of WLWD
WWV hereby represents and warrants as follows:
a. Organization and Standing. WLWD is a corporation validly existing and in good
standing under the laws of Delaware.
b. Corporate Power and Authority. WLWD has the corporate power to execute and
deliver this Agreement, has taken all action required by law to authorize such
execution and delivery, and this Agreement is a valid and binding obligation of
WLWD in accordance with its terms.
14. Representations Of Consultant
Consultant hereby represents and warrants as follows:
a. Power and Authority. Consultant has the power to execute and deliver this
Agreement, has taken all action required by law to authorize such execution and
delivery, and this Agreement is a valid and binding obligation of Consultant in
accordance with its terms.
b. Inside Information Securities Laws Violations. In the course of the
performance of his duties, consultant may become aware of information which may
considered "inside information" within the meaning of the Federal Securities
Laws, Rules and Regulations. Consultant acknowledges that his use of such
information to purchase or sell securities of WLWD, or its affiliates, or to
transmit such information to any other party with a view to buy, sell, or
otherwise deal in WLWD's securities, is prohibited by law and would constitute a
breach of this Agreement and notwithstanding the provisions of this Agreement,
will result in the immediate termination of the Options.
c. By reason of Consultant's knowledge and experience of financial and business
matters in general, and investments in particular, Consultant is capable of
evaluating the merits of this transaction and in bearing the economic risks of
an investment in the shares and WLWD in general and fully understand the
speculative nature of such securities and the possibility of such loss;
d. Consultant has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the Shares to be issued hereby and
reserved for issuance pursuant hereto, and to obtain any additional information
which Client possesses or can acquire without unreasonable effort or expense
that is necessary to verify the accuracy of information furnished; and
e. Consultant has been furnished with a copy of WLWD's most recent Annual Report
on Form 10-KSB, and all reports or documents required to be filed under Sections
13(a), 14(a) and 15(d) of the Securities and Exchange Act of 1933, as amended,
including but not limited to, quarterly reports on Form 10-QSB; and, in
addition, that Consultant has been furnished with a brief description of WLWD's
capital structure and any material changes in WLWD's affairs that may not have
been disclosed in the Disclosure Documents.
f. The Consultant agrees not to violate any Federal or State Laws in connection
with this agreement.
15. Defaults
In the event that WLWD fails to pay any amount due to Consultant hereunder, or
to timely reimburse Consultant for any expenses in the manner set forth herein,
or otherwise defaults hereunder, after receiving written notice of such default
with fifteen (15) days to cure, Consultant shall have the right to cease
performing services hereunder and to declare all amounts due hereunder to be
immediately due and payable. In no event shall any funds paid to Consultant
hereunder be refundable to WLWD.
16. Notices
All notices permitted, required or provided for by this Agreement shall be made
in writing, and shall be deemed adequately delivered if delivered by hand and a
receipt obtained, or by a nationally recognized overnight courier service that
regularly maintains records of its pick ups and deliveries, to the parties at
their respective addresses set forth above or to any other address designated by
a party hereto by written notice of such address change. Notices shall be deemed
given as of the date of delivery to the overnight courier service or to the
recipient if delivered by hand, and received one day after delivery to the
overnight courier service or when actually received if delivered by hand.
17. Indemnification
WLWD shall hold harmless and indemnify Consultant from and against any and all
damages, losses, liabilities, obligations, fees, costs and expenses, including
but not limited to, the payment and advancement of reasonable attorney's fees,
resulting from, or incurred in connection with claims made against Consultant
relating to the performance by WLWD hereunder. Notwithstanding the foregoing,
WLWD shall have no obligation to hold harmless and indemnify Consultant from
claims made against Consultant, which arise out of, or in connection with,
Consultant's negligence in the performance of his duties hereunder. The
provisions of this Section shall survive termination of this Agreement.
The Consultant shall hold harmless and indemnify WLWD from and against any and
all damages, losses, liabilities, obligations, fees, costs and expenses,
including but not limited to, the payment and advancement of reasonable
attorney's fees, resulting from, or incurred in connection with claims made
against WLWD relating to the performance of WLWD.
Except for compensation and any approved expenses, the Consultant shall hold
harmless and indemnify WLWD from and against any and all damages, losses,
liabilities, obligations, fees, costs and expenses, including but not limited to
the payment and advancement of reasonable attorney fees, resulting from, or
incurred in connection with claims made against WLWD relating to the performance
of WLWD.
18. Binding Effect; Assignment
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Neither party may assign
either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other party.
19. Entire Agreement
This Agreement represents the entire Agreement with respect to matters
contemplated herein and supersedes any prior oral or written agreements or
undertakings between the parties with respect to such matters. This Agreement
shall not be amended to any extent or canceled, except by a writing executed by
the parties.
20. Headings
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect any of the terms or provisions hereof.
21. Counterparts
This Agreement and any amendments hereto may be executed in any number of
counterparts, all of which together shall constitute a single, original
instrument.
22. Separability
To the extent that any term or provision hereof is deemed invalid, void or
otherwise unenforceable, but may be made enforceable by amendment thereto, the
parties agree that such amendment may be made so that the same shall,
nevertheless, be enforceable to the fullest extent permissible under the laws
and public policies applied in the jurisdiction in which enforcement is sought.
This Agreement is made in the State of Pennsylvania and subject to the laws of
such State without regard to conflicts of law rules. Any action or proceeding in
regard to this Agreement must be brought in the State of Delaware.
23. Waiver
A waiver of any breach of any provision of this Agreement must be in writing and
shall not constitute or operate as a waiver of any other breach of such
provision or of any other provision, nor shall any failure to enforce any
provisions hereof operate as a waiver of such provision or of any other
provision hereunder.
IN WITNESS THEREOF, the Parties have caused this agreement to be executed on its
behalf by a duly authorized officer and consultant as hereunto agreed by
authorized signatures, all as of the day and year first above written.
Whirlwind Marketing, INC. CONSULTANT
By: /s/ Xxxx X. Xxxxxx By: /s/ Xx. Xxxxxxxxx Chary
-------------------------- ------------------------------
Name: Xxxx X. Xxxxxx Name: Xx. Xxxxxxxxx Chary
Title: President Title: Design Engineer
Date: Date: 10/24/01
------------------------ -----------------------------
Fed. Tax Id. # -------------------
(Must be Filled In)
