EXHIBIT 10.3
MERGERS AND ACQUISITION CONSULTING AGREEMENT
This Mergers and Acquisition Consulting Agreement (the "Agreement") is made
and entered into this 8th day of November, 2001, by and between GETGO Inc., a
British Virgin Islands international business company ("GTGO"), and Xxxxxxx
Xxxxxxx (the "Consultant").
RECITALS
Whereas, Consultant is willing and capable of providing on a "best efforts"
basis various mergers and acquisition, feasibility, fairness opinion and
management services for and on behalf of GTGO in connection with GTGO's mergers
and acquisition projects, most specifically the proposed divestiture/sale of
GETGO Asia and the acquisition in whole or in part of Analytic Solutions Inc.;
and
Whereas, GTGO desires to retain the Consultant as an independent Consultant
to provide this mergers and acquisition consulting, and the Consultant desires
to be retained in that capacity upon the terms and conditions hereinafter set
forth.
Now therefore, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Consulting Services. GTGO hereby retains the Consultant as an independent
Consultant to GTGO and the Consultant hereby accepts and agrees to such
retention. The Consultant shall render to GTGO such services of an advisory
or consultative nature in order to assist GTGO in creating the following
deliverables: feasibility analysis on the proposed divestiture/sale of the
GETGO Asia operations; feasibility analysis on the acquisition, in whole or
in part, of Analytic solutions; and management of development of a fairness
opinion on the valuation and transaction structure of each of these mergers
and acquisitions projects.
Time, Place and Manner of Performance. The Consultant shall be available for
advice and counsel to the officers and directors of GTGO at such reasonable
and convenient times and places as may be mutually agreed upon. Except as
aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant
to any specific service, shall be determined in the sole discretion of the
Consultant.
Term of Agreement. The term of this Agreement shall be four months, commencing
November 8, 2001 and terminating on March 8, 2002 unless terminated
pursuant to Section 7 of this Agreement.
Compensation. In consideration of the services to be provided for GTGO by the
Consultant, GTGO hereby agrees to the following four month deliverable
schedule for compensation:
Mergers and Acquisitions Project Consulting
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Upon receipt of the consulting services and acceptance of the work product
as final and complete by GTGO, then GTGO agrees to pay 1,000,000 shares of
common stock as compensation in full for the work product. At the sole
discretion of the GTGO Board of Directors, GTGO may provide the shares of
common stock at any time prior to receipt of the deliverables, based upon
progress reports, and/or within thirty (30) days of receipt, acceptance and
approval by GTGO of the final deliverables. GTGO agrees as soon as
reasonably practicable to register the Shares for resale under the
Securities Act of 1933, as amended, pursuant to a registration statement
filed with the Securities and Exchange Commission on Form (S-8) (or, if
Form S-8 is not then available, such other form of registration statement
then available).
Confidentiality. The Consultant covenants that all information concerning GTGO,
including proprietary information, which it obtains as a result of the
services rendered pursuant to this Agreement shall be kept confidential and
shall not be used by the Consultant except for the direct benefit of GTGO,
nor shall the confidential information be disclosed by the Consultant to
any third party without prior written consent of GTGO, provided, however,
that the Consultant shall not be obligated to treat as confidential, or
return to GTGO copies of confidential information that (i) was publicly
known at the time of disclosure to the Consultant; (ii) becomes publicly
known or available thereafter other than by any means in violation of this
Agreement or any other duty owed to GTGO by the Consultant, or; (iii) is
lawfully disclosed to the Consultant by a third party or is required by any
entity or court of competent jurisdiction or lawful request of any
regulatory body or agency.
Independent Contractor. The Consultant and GTGO hereby acknowledge that the
Consultant is an independent contractor. The Consultant agrees not to hold
itself out as, nor shall take any action from which others might reasonably
infer that the Consultant is a partner or agent or a joint venturer with
GTGO. In addition, the Consultant shall take no action which, to the
knowledge of the Consultant binds, or purports to bind, GTGO to any
contract or agreement.
Expenses. Typical expenses expected to be incurred by the Consultant are covered
by Consultant. For other extraordinary expenses beyond minor daily
operating expenses to perform services under this Agreement, GTGO shall
reimburse the Consultant on demand, Net 30, for all expenses and other
disbursements, provided these expenses and disbursements shall have GTGO's
prior written approval and be verifiable with receipts and documentation as
may be required under GAAP for accounting purposes of GTGO. All expense
invoices pre-approved and received by GTGO will be addressed on a Net 30
basis.
Termination. Notwithstanding any provision contained in this Agreement on the
contrary, this Agreement may be terminated by GTGO at any time, for any
reason, with or without cause, at the sole discretion of GTGO, with five
(5) days written notice to Consultant. Upon termination of this Agreement
prior to the end of its anticipated expiration on 8 March 2002, with or
without cause, GTGO has no requirement for payment of compensation or
expenses of any kind, explicit or implicit, and GTGO assumes no liabilities
either express or implied as a result of any terms of this Agreement. Until
receipt of Consultant's deliverables by GTGO and the acceptance by GTGO of
the adequacy and completeness of these deliverables in the sole discretion
of GTGO, there is no creation of liabilities either express or implied
under this Agreement; except that, at the sole discretion of GTGO, it may
provide portions of compensation for work product received and accepted,
and for project progress, as optional and voluntary interim compensation to
Consultant by GTGO, up to the full amount to be paid. GTGO may also, at any
time, terminate this Agreement for cause. For purposes of this Agreement
the term "cause" means a termination of this Agreement during the term
which is a result of (i) the Consultant's felony conviction or plea of "no
contest" to a felony; (ii) the Consultant's willful disclosure of material
trade secrets or other material confidential information related to
Consultant's business; or (iii) the Consultant's willful and continued
failure to substantially perform its duties for GTGO after a written demand
for substantial performance is delivered by GTGO to the Consultant, which
demand specifically identifies the manner in which GTGO believes that the
Consultant has not substantially performed its duties, and which
performance is not substantially corrected by the Consultant within 10 days
of delivery of such demand. For purposes of the previous sentence, no act
or failure to act on the Consultant's part shall be deemed "willful" unless
done, or omitted to be done, by the Consultant not in good faith and
without reasonable belief that the Consultant's action or omission was in
the best interest of GTGO.
Work Product. It is agreed that the Consultant retains all intellectual property
rights with respect to the deliverables until payment in full for all work
product is received by the Consultant from GTGO and GTGO has given final
quality assurance approval to the work product and deliverables.
Conflict of Interest. The Consultant shall be free to perform services for other
persons. The Consultant will notify GTGO of its performance of consulting
services for any other person which could conflict with its obligations
under this Agreement. Upon receiving such notice, GTGO may terminate this
Agreement or may in writing waive the conflict concerns and continue with
this Agreement at the sole discretion of GTGO.
Indemnification for Securities Law Violations. GTGO and the Consultant agree to
mutually indemnify and hold each other and each officer, director and
controlling person of GTGO or the Consultant harmless against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or
claim in respect thereof) to which the Consultant or GTGO or such officer,
director or controlling person may become subject under the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
because of inappropriate actions of the Consultant or GTGO or their
agent(s). GTGO and the Consultant will comply with all of the applicable
laws of the Securities Act of 1933.
Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
Waiver of Breach. Any waiver by GTGO of a breach of any provision of this
Agreement by the Consultant shall not operate or be construed as a waiver
of any subsequent breach by the Consultant. Any waiver by Consultant of a
breach of any provision of this Agreement by GTGO shall not operate or be
construed as a waiver of any subsequent breach by GTGO.
Assignment. This Agreement and the rights and obligations of the parties
hereunder shall not be assignable, unless written authorization to assign
the Agreement, rights and obligations hereunder is obtained from the other
non-assigning Party.
Severability. All agreements and covenants contained herein are severable, and
in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
Entire Agreement. This Agreement contains the entire agreement between the
Parties, and may not be waived, amended, modified or supplemented except by
agreement in writing signed by the Party against whom enforcement of any
waiver, amendment, modification or supplement is sought. Waiver of or
failure to exercise any rights provided by this Agreement in any respect
shall not be deemed a waiver of any further or future rights.
Waiver and Modification. Any waiver, alteration or modification of any of the
provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, from time to time, may
waive any of its rights hereunder without effecting a waiver with respect
to any subsequent occurrences or transactions hereof.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but both of which taken together shall
constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
CONSULTANT
/s/
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Xxxxxxx XXXXXXX
GETGO INC.
/s/
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Xxxxxx Xxxxx, Chairman/CEO
