BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated May 22, 2002
and is entered into by and between Pacel Corporation, Inc.
(hereinafter "PLRP" or "CLIENT") and NeoTactix, Inc.
(hereinafter "NTX").
1. Conditions. This Agreement will not take effect,
and NTX will have no obligation to provide any service
whatsoever, unless and until CLIENT returns a signed copy
of this Agreement to NTX (either by mail or facsimile
copy). In addition, CLIENT shall be truthful with NTX in
regard to any relevant or material information provided by
CLIENT, verbally or otherwise which refers, relates, or
otherwise pertains to the CLIENT's business, this Agreement
or any other relevant transaction. Breach of either of
these conditions shall be considered a material breach and
will automatically grant NTX the right to terminate this
Agreement and all moneys, and other forms of compensation,
paid or owing as of the date of termination by NTX shall be
forfeited without further notice.
Upon execution of this Agreement, CLIENT agrees to
fully cooperate with NTX in carrying out the purposes of
this Agreement, keep NTX informed of any developments of
importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
2. Scope and Duties. During the term of this
Agreement, NTX will perform the following services for
CLIENT:
2.1 Advice and Counsel. NTX will provide advice and
counsel regarding CLIENT's strategic business plans,
strategy and negotiations with potential business strategic
partnering, corporate planning and or other general
business consulting needs as expressed by CLIENT.
2.2 Mergers and Acquisitions. NTX will provide
assistance to CLIENT, as mutually agreed, in identifying
merger and / or acquisition candidates, assisting in any
due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as
needed.
2.3 CLIENT and/or CLIENT's Affiliate Transaction Due
Diligence. NTX will participate and assist CLIENT in the
due diligence process, where possible, on all proposed
financial transactions affecting CLIENT of which NTX is
notified in writing in advance, including conducting
investigation of and providing advice on the financial,
valuation and stock price implications of the proposed
transaction(s).
2.4 Ancillary Document Services. If necessary, NTX
will assist and cooperate with CLIENT in the development,
editing and production of such documents as are reasonably
necessary to assist in any transaction covered by this
Agreement. However, this Agreement will not include the
preparation or procuring of legal documents or those
documents normally prepared by an attorney.
2.5 Additional Duties. CLIENT and NTX shall mutually
agree, in writing, for any additional duties that NTX may
provide to CLIENT for compensation paid or payable by
CLIENT under this Agreement. Although there is no
requirement to do so, such additional agreement(s) may be
attached hereto and made a part hereof by written
amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
2.6 Standard of Performance. NTX shall devote such
time and efforts to the affairs of the CLIENT as is
reasonably necessary to render the services contemplated by
this Agreement. Any work or task of NTX provided for herein
which requires CLIENT to provide certain information to
assist NTX in completion of the work shall be excused
(without effect upon any obligation of CLIENT) until such
time as CLIENT has fully provided all information and
cooperation necessary for NTX to complete the work. The
services of NTX shall not include the rendering of any
legal opinions or the performance of any work that is in
the ordinary purview of a certified public accountant, or
other licensed professional. NTX cannot guarantee results
on behalf of CLIENT, but shall use commercially reasonable
efforts in providing the services listed above. If an
interest is communicated to NTX regarding satisfying all or
part of CLIENT's business and corporate strategic planning
needs, NTX shall notify CLIENT and advise it as to the
source of such interest and any terms and conditions of
such interest.
2.7 Non-Guarantee. NTX MAKES NO GUARANTEE THAT NTX
WILL BE ABLE TO SUCCESSFULLY LOCATE A MERGER OR ACQUISITION
TARGET AND IN TURN CONSUMMATE A MERGER OR ACQUISITION
TRANSACTION FOR CLIENT, OR TO SUCCESSFULLY COMPLETE SUCH A
TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOR THE PAYMENT
OF DEPOSITS TO NTX BY CLIENT PURSUANT TO FEE AGREEMENTS FOR
SERVICES NOT CONTEMPLATED HEREIN SHALL BE CONSTRUED AS ANY
SUCH GUARANTEE. ANY COMMENTS MADE REGARDING POTENTIAL TIME
FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF CLIENT'S
NEEDS ARE EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES OF
THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3. Compensation to NTX.
COMPENSATION TO NTX.
3.1 Issuance of Shares for Entering into Agreement. As
consideration for NTX entering into this Agreement, Client
agrees to cause 10,000,000 shares of its common stock, par
value $.001 per share, to be issued in amounts of 5,000,000
shares to Xxxxxx X. Xxxxxxx and 5,000,000 shares to Xxxxx
X. Xxxxxx, affiliates of NTX. When issued, said shares
shall be free trading shares, registered with the U.S.
Securities and Exchange Commission on its Form S-8 or
similar registration. The registration and issuance of said
shares shall take place by no later than 15 days following
the execution and delivery of this Agreement, and all costs
in connection therewith shall be borne by Client. NOTE: NTX
SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY
NTX WITHIN 15 DAYS OF MUTUAL EXECUTION OF THIS AGREEMENT BY
THE PARTIES. IN ADDITION, NTX'S OBLIGATIONS UNDER THIS
AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING HEREUNDER
IS MORE THAN FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE
RECEIPT OF ANY FEES DUE TO NTX UPON EXECUTION OF THIS
AGREEMENT ARE NOT CONTINGENT UPON ANY PRIOR PERFORMANCE OF
ANY DUTIES WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 Fees for Merger/Acquisition. In the event that
NTX, assists CLIENT and / or introduces CLIENT (or a CLIENT
affiliate) to any third party, merger partner(s) or joint
venture(s) who then enters into a merger, joint venture or
similar agreement with CLIENT or CLIENT's affiliate, CLIENT
hereby agrees to pay NTX advisory fees pursuant to the
following schedule which are based on the aggregate amount
of such merger, joint venture or similar agreement with
CLIENT or CLIENT's affiliate. Advisory fees are deemed
earned and shall be due and payable at the first close of
the transaction, however, in certain circumstances when
payment of advisory fees at closing is not possible, within
24 hours after CLIENT has received the proceeds of such
investment. This provision shall survive this Agreement for
a period of one year after termination or expiration of
this Agreement. In other words, the advisory fee shall be
deemed earned and due and payable for any funding,
underwriting, merger, joint venture or similar transaction
which first closes within a year of the termination or
expiration of this Agreement as a result of an introduction
as set forth above.
Merger/Acquisition. For a merger/acquisition entered
into by CLIENT as a result of the efforts of, or an
introduction by NTX during the term of this Agreement,
Client shall pay NTX, ten (10) percent of the total value
of the transaction. For a merger/acquisition entered into
by CLIENT as a result of the efforts of NTX and the
introduction by CLIENT during the term of this Agreement,
Client shall pay NTX, ten (10) percent of the total value
of the transaction. Such percentage(s) shall be paid to NTX
in the same ratio of cash and / or stock as the transaction
within 30 days following the close of such transaction.
3.3 Expenses. CLIENT shall reimburse NTX for
reasonable expenses incurred in performing its duties
pursuant to this Agreement (including printing, postage,
express mail, photo reproduction, travel, lodging, and long
distance telephone and facsimile charges); provided,
however, that NTX must receive prior written approval from
CLIENT for any expenses over $ 500. Such reimbursement
shall be payable within 7 seven days after CLIENT's receipt
of NTX invoice for same.
3.4 Additional Fees. CLIENT and NTX shall mutually
agree upon any additional fees that CLIENT may pay in the
future for services rendered by NTX under this Agreement.
Such additional agreement(s) may, although there is no
requirement to do so, be attached hereto and made a part
hereof as Exhibits beginning with Exhibit A.
4. Indemnification. The CLIENT agrees to indemnify and
hold harmless NTX, each of its officers, directors,
employees and shareholders 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, arising out of any act, failure to act, neglect,
any untrue or alleged untrue statement of a material fact
or failure to state a material fact which thereby makes a
statement false or misleading, or any breach of any
material representation, warranty or covenant by CLIENT or
any of its agents, employees, or other representatives.
Nothing herein is intended to nor shall it relieve either
party from liability for its own willful act, omission or
negligence. All remedies provided by law, or in equity
shall be cumulative and not in the alternative.
5. Confidentiality.
5.1 NTX and CLIENT each agree to keep confidential and
provide reasonable security measures to keep confidential
information where release may be detrimental to their
respective business interests. NTX and CLIENT shall each
require their employees, agents, affiliates, other
licensees, and others who will have access to the
information through NTX and CLIENT respectively, to first
enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in
perpetuity. 5.2 NTX will not, either during its engagement
by the CLIENT pursuant to this Agreement or at any time
thereafter, disclose, use or make known for its or
another's benefit any confidential information, knowledge,
or data of the CLIENT or any of its affiliates in any way
acquired or used by NTX during its engagement by the
CLIENT. Confidential information, knowledge or data of the
CLIENT and its affiliates shall not include any information
that is, or becomes generally available to the public other
than as a result of a disclosure by NTX or its
representatives.
6. Miscellaneous Provisions.
6.1 Amendment and Modification. This Agreement may be
amended, modified and supplemented only by written
agreement of NTX and CLIENT.
6.2 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 assigns. The obligations of either
party hereunder cannot be assigned without the express
written consent of the other party.
6.3 Governing Law; Venue. 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
California, without regard to its conflict of law doctrine.
CLIENT and NTX agree that if any action is instituted to
enforce or interpret any provision of this Agreement, the
jurisdiction and venue shall be Orange County, California.
6.4 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.
6.5 Survivability. If any part of this Agreement is
found, or deemed by a court of competent jurisdiction, to
be invalid or unenforceable, that part shall be severable
from the remainder of the Agreement.
7. Arbitration. ALL DISPUTES, CONTROVERSIES, OR
DIFFERENCES BETWEEN CLIENT, NTX OR ANY OF THEIR OFFICERS,
DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS,
AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR
ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT
OF THIS AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION
RATHER THAN THROUGH LITIGATION. WITH RESPECT TO THE
ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY
ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY
IN COURT, INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED
AND DIFFERENT FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE
FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT
OF APPEAL OR TO SEEK MODIFICATION OF RULING BY THE
ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED
TO INCLUDE ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE
ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO THE AMERICAN ARBITRATION ASSOCIATION, IN
ORANGE COUNTY, CALIFORNIA WITHIN FIVE (5) DAYS AFTER
RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO
ARBITRATION ON REQUEST, THEN THE REQUESTING PARTY MAY
COMMENCE AN ARBITRATION PROCEEDING, BUT IS UNDER NO
OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS
INITIATED SHALL TAKE PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER 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 ANY ARBITRATION
FORUM LOCATED IN ORANGE COUNTY, CALIFORNIA, OVER ANY MATTER
WHICH IS THE SUBJECT OF THIS AGREEMENT, 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;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD
AS BEING FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS
FOR JUDGMENT AND EXECUTION FOR COLLECTION.
8. Term/Termination. This Agreement is an agreement
for the term of approximately six (6) months ending October
30, 2002.
9. Registration Of Shares. NTX shall have standard
piggyback registration rights (as described in Section 3.2
herein) of all shares issued in accordance with this
Agreement, which are not subject to registration per
Section 3.0 et seq. herein.
10. Non Circumvention. In and for valuable
consideration, CLIENT hereby agrees that NTX may introduce
(whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities,
including, without limitation, natural persons,
corporations, limited liability companies, partnerships,
unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or
""Opportunities""). CLIENT further acknowledges and agrees
that the identity of the subject Opportunities, and all
other information concerning an Opportunity (including
without limitation, all mailing information, phone and fax
numbers, email addresses and other contact information)
introduced hereunder are the property of NTX, and shall be
treated as confidential and proprietary information by
CLIENT, it affiliates, officers, directors, shareholders,
employees, agents, representatives, successors and assigns.
CLIENT shall not use such information, except in the
context of any arrangement with NTX in which NTX is
directly and actively involved, and never without NTX's
prior written approval. CLIENT further agrees that neither
it nor its employees, affiliates or assigns, shall enter
into, or otherwise arrange (either for it/him/herself, or
any other person or entity) any business relationship,
contact any person regarding such Opportunity, either
directly or indirectly, or any of its affiliates, or accept
any compensation or advantage in relation to such
Opportunity except as directly though NTX, without the
prior written approval of NTX. NTX is relying on CLIENT's
assent to these terms and their intent to be bound by the
terms by evidence of their signature. Without CLIENT's
signed assent to these terms, NTX would not introduce any
Opportunity or disclose any confidential information to
CLIENT as herein described.
(S i g n a t u r e P a g e F o l l o w s)
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed, all as of the day and
year first above written.
PACEL CORPORATION, INC. ( PLRP )
Print Name: Xx. Xxxxx X. Xxxxxxx
Sign Name:______________________________________
Title: President and Chief Executive Officer
Date: ___________________________
Address: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
NEOTACTIX, INC. ( NTX)
Print Name: Xxxxx X. Xxxxxx
Sign Name: __________________________________
Title: Managing Partner
Date: ________________________
Address: 00000 XxxXxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, XX 00000
