EXHIBIT 10.1
ADVISORY & CONSULTING AGREEMENT
This Agreement (the "Agreement") dated as of September 10th,
2001 (the "Effective Date"), by and between SATX, Inc., hereinafter referred to
as "SATX" or the "Company" and Xxxxxxxx Xxxxx, hereinafter referred to as
"Advisor".
The Company desires to engage Advisor to provide strategic
planning, Advisory and business consulting services to it, and Advisor desires
to provide strategic planning, Advisory and business consulting services to the
Company, being understood that the services provided to the Company shall be
from the Advisor.
Accordingly, in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. TERM OF AGREEMENT. Commencing on the Effective
Date, Advisor shall be retained by the Company for a period of two (2) years
from the date hereof. This Agreement shall be renewable upon mutual agreement of
the parties for additional one-year periods. The initial one-year period and any
extensions or renewals thereof shall constitute the "Consulting Term."
SECTION 2. POSITION AND RESPONSIBILITIES. Advisor shall serve
as Business Advisor and consultant to the Company and render such advice and
services to the Company as may be reasonably requested by the Company including,
without limitation, Investor relations, merger and acquisition Advisory
services, capital structure Advisory, marketing and strategic planning services,
business development activities and making introductions to investment banks,
broker dealers and institutions on behalf of Company. During the Consulting
Term, Advisor shall report directly to the Chief Executive Officer or such other
senior officer of the Company as shall be designated by the Chief Executive
Officer of the Company. Subject to the terms and conditions set forth herein,
Advisor agrees to undertake on a best-efforts basis such planning, consultative
and Advisory services as the Company shall reasonably request in connection with
the Company's business.
SECTION 3. COMPENSATION. (a) Retainer Fee: Company shall grant
to Xx. Xxxxx compensation in the amount of Five Million (5,000,000) free trading
shares of the Company's common stock. Said compensation will be issued to
Advisor, in his name, upon the execution of this Agreement. The shares provided
to Advisors will be fully registered, fully paid, non assessable, non-cancelable
and free and clear of any encumbrances. Company will transfer said shares to the
account/s designated by Advisor.
SECTION 4. EXPENSES. Advisor shall be solely responsible for
all out-of-pocket expenses, travel expenses, third party expenses, filing fees,
copy and mailing expenses that Advisor may incur in performing advisory services
under the Agreement. However, costs may be reimbursed to Advisor if approved in
advance in writing by the Company.
SECTION 5. CONFIDENTIAL INFORMATION. (a) Advisor agrees that
during the course of his Consulting Term and at any time after termination, he
will keep in strictest confidence, and will not disclose or make accessible to
any other person without the written consent of the Company, the Company's
products, services and technology, both current and under development, promotion
and marketing programs, lists, trade secrets and other confidential and
proprietary business information of the Company or any of its clients and third
parties including, without limitation, Proprietary Information (as defined in
Section 6) (all the foregoing is referred to herein as the "Confidential
Information"). The Advisor agrees: (i) not to use any such Confidential
Information for himself or others; and (ii) not to take any such material or
reproductions thereof from the Company's facilities at any time during the
Consulting Term except, in each case, as required in connection with Advisors
duties to the Company.
Notwithstanding the foregoing, the parties agree that the
Advisor is free to use (i) information in the public domain not as a result of a
breach of this Agreement, (ii) information lawfully received form a third party
who had the right to disclose such information and (iii) Advisors own
independent skill, knowledge, know-how and experience to whatever extent and in
whatever way he wishes, in each case consistent with his obligations as Advisor
and that, at all times, the Advisor is free to conduct any research relating to
the Company's business.
SECTION 6. OWNERSHIP OF PROPRIETARY INFORMATION. The Advisor
agrees that all information that has been created, discovered or developed by
the Company, its subsidiaries, affiliates, licensors, licensees, successors or
assigns (collectively, the "Affiliates") (including, without limitation,
information relating to the development of the Company's business created,
discovered, developed by the Company or any of its affiliates during the
Consulting Term, and information relating to the Company's customers, suppliers,
advisors, and licensees) and/or in which property rights have been assigned or
otherwise conveyed to the Company or the Affiliates, shall be the sole property
of the Company or the Affiliates, as applicable, and the Company or the
Affiliates, as the case may be, shall be the sole owner of all patents,
copyrights and other rights in connection therewith, including without
limitation the right to make application for statutory protection. All the
aforementioned information is hereinafter called "Proprietary Information." By
way of illustration, but not limitation, Proprietary Information includes trade
secrets, processes, discoveries, structures, inventions, designs, ideas, works
of authorship, copyrightable works, trademarks, copyrights, formulas,
improvements, inventions, product concepts, techniques, marketing plans,
strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
customer lists, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications and information about the Company's Affiliates, its
employees and/or advisors (including, without limitation, the compensation, job
responsibility and job performance of such employees and/or advisors).
All original content, proprietary information, trademarks,
copyrights, patents or other intellectual property created by the Advisor that
does not include any specific information relative to the Company's proprietary
information, shall be the sole and exclusive property of Advisor.
SECTION 7. TERMINATION. (a) DEATH OR DISABILITY OF ADVISORS.
This Agreement and Advisors' engagement hereunder shall terminate upon the
earlier of the end of the Consulting Term or upon the Advisor's death.
(b) Termination by the Company for Just Cause. Any of the
following actions by Advisor shall constitute just cause and give the Company
the right to immediately terminate Advisor:
(i) Breach by Advisor of this Agreement;
(ii) Acts or omissions involving willful or
intentional malfeasance or misconduct that is injurious to the Company,
monetarily, reputationally or otherwise;
(iii) Commission of an act of fraud against the
Company; and
(iv) Acts or omissions constituting a material breach
of Advisors' obligations under this Agreement.
(c) Upon 60 days advance written notice to the other party.
All expense fees due and owing pursuant to Section 4 will immediately become due
and payable.
(d) Upon termination pursuant to subsections (a), (b) or (c)
of this Section 7, Sections 3, 5, 6 and 8 of this Agreement shall remain in full
force and effect.
SECTION 8. REPRESENTATIONS. The acts, statements and
representations made by Company to Investors or any third party are the sole
responsibility of Company, and Company agrees to indemnify Advisor and its
officers, directors, members, managers, employees, attorneys and agents for any
liability, claims, losses and expenses, including legal expenses, incurred by
Advisors that result from Company's representations. Advisor agrees to indemnify
the Company for any liability, claims, losses, and expenses, incurred by Advisor
that result from the Advisors' gross negligence, intentional misconduct, or
representations which are not based upon information provided by the Company.
Company represents that all materials provided to Advisors or any third party
regarding the Company's affairs or financial condition are truthful and accurate
in all material respects.
SECTION 9. NOTICES. Any notice or other communication under
this Agreement shall be in writing and shall be deemed to have been given: when
delivered personally against receipt therefore; one day after being sent by
Federal Express or similar overnight delivery; or five business days after being
mailed registered or certified mail, postage prepaid, to a party hereto at the
address set forth below, or to such other address as such party shall give by
notice hereunder to the other party to this Agreement.
If to Company: If to Advisors:
SATX, Inc. Xx. Xxxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx 000 Xxxx Xx. Xxxxxxx
Xxxx: Xx. Xxxxx Xxxxxxx Xxxx Xxxxx, Xxxxxx X0X 0X0
Phone: 000-000-0000 Telephone: 000.000.0000
Fax: 000.000.0000 Telecopy: 514.769.8606
SECTION 10. SEVERABILITY OF PROVISIONS. If any provision of
this Agreement shall be declared by a court of competent jurisdiction to be
invalid, illegal or incapable of being enforced in whole or in part, the
remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provision shall be deemed dependent upon any other
covenant or provision unless so expressed herein.
SECTION 11. ENTIRE AGREEMENT; MODIFICATION. This Agreement
contains the entire agreement of the parties relating to the subject matter
hereof, and the parties hereto and thereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein. No amendment or modification of this Agreement
shall be valid unless made in writing and signed by each of the parties hereto.
SECTION 12. BINDING EFFECT. The rights, benefits, duties and
obligations under this Agreement shall inure to, and be binding upon, the
Company, its successors and assigns. This Agreement constitutes a personal
service agreement, and the performance of Advisors' obligations hereunder may
not be transferred or assigned by Advisors and any such purported transfer or
assignment shall be null and void, Unless otherwise agreed to in writing.
SECTION 13. THIRD PARTY BENEFICIARIES. This Agreement is for
the benefit of the parties hereto and their permitted successors and assigns,
and is not intended to confer upon any other person or entity, any rights or
remedies hereunder.
SECTION 14. NON-WAIVER. The failure of any party to insist
upon the strict performance of any of the terms, conditions and provisions of
this Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or condition of this Agreement on
the part of any party shall be effective for any purpose whatsoever unless such
waiver is in writing and signed by such party.
SECTION 15. REMEDIES FOR BREACH. Advisor and Company mutually
agree that any breach of Sections 5, 6, 8 or 9 of this Agreement by Advisor or
Company may cause irreparable damage to the other party and/or its Affiliates,
and that monetary damages alone would not be adequate and, in the event of such
breach or threat of breach, the damaged party shall have, in addition to any and
all remedies at law and without the posting of a bond or other security, the
right to an injunction, specific performance or other equitable relief necessary
to prevent or redress the violation of either party's obligations under such
Sections. In the event that an actual proceeding is brought in equity to enforce
such Sections, the offending party shall not urge as a defense that there is an
adequate remedy at law nor shall the damaged party be prevented from seeking any
other remedies, which may be available to it.
SECTION 16. GOVERNING LAW. This Agreement shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
Georgia New York without regard to such State's principles of conflicts of laws.
The parties irrevocably and unconditionally agree that the exclusive place of
jurisdiction for any action, suit or proceeding ("Actions") relating to this
Agreement shall be in the courts of the United States of America sitting in the
County of Nassau or, if such courts shall not have jurisdiction over the subject
matter thereof, in the courts of the State of New York sitting therein, and each
such party hereby irrevocably and unconditionally agrees to submit to the
jurisdiction of such courts for purposes of any such Actions. If any such State
court also does not have jurisdiction over the subject matter thereof, then such
an action, suit or proceeding may be brought in the federal or state courts
located in the states of the principal place of business of any party hereto.
Each party irrevocably and unconditionally waives any objection it may have to
the venue of any Action brought in such courts or to the convenience of the
forum. Final judgment in any such Action shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment, a certified or true copy of
which shall be conclusive evidence of the fact and the amount of any
indebtedness or liability of any party therein described.
SECTION 17. HEADINGS. The headings of the Sections are
inserted for convenience of reference only and shall not affect any
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
ADVISOR:
By: /s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
COMPANY:
SATX, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxx, CEO & President
