CONSULTING AGREEMENT
Agreement, dated as of May 1, 2000, by and between TELEHUBLINK CORPORATION,
a Delaware corporation (the "Corporation"), and PARK STRATEGIES, LLC, a New York
corporation (the "Consultant").
WHEREAS, the Corporation wishes to retain the Consultant and the Consultant
has agreed to undertake and perform the obligations herein set forth, subject to
the terms hereof.
NOW, THEREFORE, in consideration of the promises, covenants and agreements
set forth herein, the parties agree as follows:
1. Engagement of Consultant; Duties. The Corporation hereby engages the
Consultant, and the Consultant agrees to be engaged, as a consultant on the
terms and conditions set forth below. The Consultant agrees that it will, as an
independent contractor, serve, on a non-exclusive basis, as a consultant to the
Corporation and its affiliates, performing such services, including but not
limited to, advising on domestic and international operations and opportunities,
making business contacts, setting up meetings with potential customers,
marketing strategy and other business matters, subject to the direction and
control of the Corporation's Chairman of the Board and Chief Executive Officer
and the Corporation's Board of Directors. The Consultant's role is that of a
consultant and advisor to, and not that of a manager or employee of the
Corporation. It is agreed that a representative of the Consultant will be
willing to be named to and serve on a Strategic Advisory Board (or similar
position) established by the Corporation. The Consultant represents and warrants
that it is not subject to any agreement, covenant or legal restraint which
precludes or otherwise restricts its ability to enter into this Agreement and
perform the services contemplated hereby.
2. Time. The Consultant will devote such time to the affairs of the
Corporation (and its affiliates) as is necessary to perform the services
contemplated hereby in a professional and effective manner, subject to illness
and reasonable requirements of other businesses and activities of the
Consultant's personnel. The Consultant may perform services hereunder in such
manner (whether by conference, telephone,
letter or otherwise) and at such time and place as Consultant may reasonable
determine. It is presently contemplated that if Senator Xxxxxxxx X'Xxxxx will
act for the Consultant in the performance of the services required of the
Consultant hereunder.
3. Term.
The Consultant's engagement shall commence effective as of the date hereof
and shall continue until June 20, 2002 (the "Termination Date").
4. Compensation.
As compensation for the Consultant's services hereunder, the
Consultant shall receive the following:
(a) Option to purchase 150,000 shares of the Corporation's Common
Stock at an exercise price of $5.00 per share. Such options shall vest 25% on
the date hereof, 25% on August 31, 2000, 25% on November 30, 2000 and 25% on
February 28, 2001. Such options shall vest on such dates only if Consultant is
rendering services for the Corporation on such date and the Agreement is not in
breach by Consultant on such date; and
(b) A commission equal to 5% of the Net Sales of the Corporation
during the period beginning on May 11, 2000 and ending on June 30, 2001 which
arise from a person who the Consultant first contacted and set up a meeting in
which a representative of the Corporation participated. Net Sales shall be sales
which result in monies being actually received by the Corporation during such
period, net of returns, allowances, accommodations, adjustments and taxes; and
(c) A commission equal to 2-1/4% of the Net Sales of the Corporation
during the period beginning on July 1, 2001 and ending on June 30, 2002 which
arise from a person who the Consultant first contacted and set up a meeting in
which a representative of the Corporation participated.
5. Expense Reimbursement.
The Corporation will reimburse the Consultant for any and all expenses
incident to the Consultant's rendering of services hereunder which the
Corporation deems necessary or desirable, upon presentation of expense vouchers
or other
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documentation in such detail as the Corporation may from tine to time reasonably
require.
6. Non-Competition.
(a) The Consultant recognizes that the services to be performed by it
hereunder are special, unique and extraordinary and that, by reason of its
engagement hereunder, the Consultant will acquire confidential information and
trade secrets concerning the operation of the Corporation. For all purposes
hereunder or in respect hereof, the Consultant, for and on behalf of itself and
its representatives, including without limitation Senator X'Xxxxx, agrees that
during the term of this Agreement and for one year thereafter, the Consultant
will not, directly or indirectly, render services for a company that is in a
competitive business with the Corporation.
(b) The Corporation shall be entitled, in addition to any other right
and remedy it may have, at law or in equity, to an injunction, without the
posting of any bond or other security, enjoining or restraining the Consultant
from any violation or threatened violation of this Section 6, and the Consultant
hereby consents to the issuance of such injunction; provided, however, that the
foregoing shall not prevent the Consultant from contesting the issuance of any
such injunction on the ground that no violation or threatened violation of this
Section 6 has occurred. If any of the restrictions contained herein shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, geographical scope, or other
provisions hereof, and in its reduced form this Section 6 shall be enforceable
in the manner contemplated hereby.
7. Confidentiality. The Consultant, for and on behalf of itself and its
representatives, shall not divulge to anyone, either during or at any time after
the termination of its engagement, any information constituting a trade secret
or other confidential information acquired by it concerning the Corporation,
except in the performance of its duties hereunder, without the prior written
consent of the Corporation, or if required by law. The Consultant acknowledges
that any such information is of a confidential and secret character and of great
value to the Corporation, and upon the termination of its engagement the
Consultant shall forthwith deliver up to the Corporation all notebooks and other
data in its possession
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relating to either the Corporation. The Corporation shall be entitled, in
addition to any other right and remedy it may have, at law or in equity, to an
injunction, without the posting of any bond or other security, enjoining or
restraining the Consultant from any violation or threatened violation of this
Section 7, and the Consultant hereby consents to the issuance of such
injunction; provided, however, that the foregoing shall not prevent the
Consultant from contesting the issuance of any such injunction on the ground
that no violation or threatened violation of this Section 7 has occurred.
8. Indemnification. If Consultant shall be subject to any claim, demand or
penalty or becomes a party to any suit or other judicial or administrative
proceeding by reason of any claimed act or omission by the Corporation, or by
reason of any act occurring in connection with the provision of services
hereunder (provided that such acts by Consultant do not violate the terms of
this Agreement and are not acts done by Consultant which causes the Corporation
to incur any liabilities or expenses), the Corporation shall indemnify and hold
Consultant harmless against all judgments, settlements, penalties and expenses,
including reasonable attorneys fees, court costs and other expenses of
litigation or administrative proceeding, incurred by or imposed on Consultant in
connection with the investigation or defense relating to such claim or
litigation or administrative proceeding and, at the election of Consultant, the
Corporation shall also defend Consultant.
9. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be construed as if
such provision had been drawn so as not to be invalid or unenforceable.
10. Entire Agreement, Etc. This Agreement sets forth the parties' final and
entire agreement, and supersedes any and all prior understandings with respect
to its subject matter. This Agreement shall bind and benefit the parties hereto
and their respective heirs, successors and assigns, except as otherwise set
forth herein. This Agreement is personal in nature and none of the Consultant's
obligations under this Agreement may be assigned or dalegated by the Consultant.
The Corporation may assign this Agreement to any affiliate thereof. This
Agreement shall also be assignable by the Corporation or
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any of its affiliates to any other person in connection with the sale, transfer
or other disposition of all or a substantial portion of its business and assets;
and this Agreement shall inure to and be binding upon any successor to all or a
substantial portion of the business, or to all or substantially all of the
assets, of the Corporation, whether by merger, consolidation, purchase of stock
or assets or otherwise. This Agreement cannot be changed, waived or terminated
except by a writing signed by both the Consultant and the Corporation and shall
be governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts made and performed entirely within such state.
11. Independent Contractor. The parties agree that the Corporation shall
have no right to control or direct the details, manner or means by which the
Consultant accomplishes the results of the services performed hereunder, it
being acknowledged that the Consultant shall for all purposes be an independent
contractor of the Corporation.
12. Counterparts. This instrument may be executed in two or more
counterparts each of which shall be deemed an original by all of which together
shall constitute one and the same instrument.
13. Notices. Any notice or other communication required to or which may be
given to any party hereunder shall be in writing and shall be delivered
personally to such party (or the Secretary thereof in the case of the
Corporation) or if mailed, by registered or certified mail, postage prepaid,
return receipt requested, addressed to such other party at the address first set
forth above and shall be deemed delivered in all cases upon receipt. Any party
may change the address to which notices are to be sent by giving written notice
of any such change in the manner provided herein.
14. Captions. The descriptive headings of the several sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
15. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or any breach or asserted breach hereof or questioning the
validity and binding effect hereof shall be determined by arbitration conducted
in the City of New York in accordance with the Commercial Rules of the American
Arbitration Association than obtaining, and judgment
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upon any award rendered may be entered in any court having jurisdiction thereof.
The decision of the arbitrators shall be final and binding upon the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first written above.
TELEHUBLINK CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Pres/CEO
PARK STRATEGIES LLC
By: /s/ (Signature Illegible)
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Name:
Title:
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