AGREEMENT, made this 2nd day of October, 2001 by and between THERMOELASTIC
TECHNOLOGIES, INC., whose principal place of business is at 0000 XXXXXXXXXX
XXXX, XXXXXX, XX 00000 hereinafter the "Company" and Xxxxxxx XXXXXX, whose
principle place of business is at 000 XXXXXXX XXX, XXXXXXXX, XXX XXXX 00000
hereinafter the "Consultant".
WHEREAS, the Company desires to obtain Consultant's services in connection with
the Company's business affairs and consultant is willing to undertake to provide
such services as hereinafter fully set forth;
WITNESSETH
NOW, THEREFORE, the parties agree as follows:
1. TERM: The term of this Consulting Agreement shall be for a six (6) month
period commencing on the date hereof.
2. NATURE OF SERVICES: During the term of this Agreement Consultant shall
provide advice to undertake for and consult with the Company concerning
management, product/service expansion. Attend meetings of the
retrenchment, marketing consulting, strategic planning, liquidity
management, corporate organization and structure, financial matters in
connection with the operation of the business of the Company, and shall
review and advise the Company regarding its overall progress, needs and
condition. Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby.
(a) Attend meetings of the Company's Board of Directors or Executive
Committee(s) when so requested by the Company;
(b) Attend meetings for and at the request of the Company review,
analyze and report on proposed business opportunities;
(c) Consult with the Company concerning strategic corporate planning and
investment policies, including any revision of the Company's
business plan when requested by the company;
(d) Locate acquisitions for the Company;
(e) Assist in negotiating potential acquisitions;
(f) Assist in the implements of short term and long term strategic
planning as required by the Company;
(g) Advertise the Company's services and projects to its particular
industry;
(h) Implementation of short range and long term strategic planning to
fully develop and enhance the Company's assets, resources, products
and services;
(i) Advise the Company of means to restructure its debt and financial
obligations;
(j) Negotiate with lenders regarding the restructuring of such debt
obligations'
(k) Assist the Company in the monitoring of services provided by the
Company's advertising firm, public relations firm and other
professionals to be employed by the Company;
(l) Advise the Company relative to the recruitment and employment of key
executives
consistent with the expansion of operations of the Company; and
(m) Advise and recommend to the Company additional services relating to
the present products/services offered by the Company as well as new
products/services that may be provided by the Company.
4. IT IS AGREED that the Consultant's services will not include any services
that constitute the rendering of legal opinions or performance of work
that is in the ordinary purview of certified public accountant or any work
that it is the ordinary purview of a registered broker/dealer.
5. COMPENSATION: The Company agrees to compensate Consultant as follows:
Upon execution of this Agreement, the Company shall issue Consultant
(850,000) shares of the Company's common stock which are to be registered
in the Company's current S-8 Registration.
6. EXPENSES. Consultant shall be entitled to reimbursement by the Company of
such reasonable out-of-pocket expenses as Consultant may incur in
performing services under this Consulting Agreement. Any significant
expenses shall be approved in advance with the Company.
7. LIABILITY OF CONSULTANT: In furnishing the Company with management advice
and other services as herein provided, neither Consultant nor any officer,
director or agent thereof shall be liable to the Company or its creditors
for errors of judgment or for anything except malfeasance, bad faith or
gross negligence in the performance of its duties or reckless disregard of
its obligations and duties under the terms of this agreement.
It is further understood and agreed that Consultant may rely upon
information furnished to it reasonably believed to be accurate and
reliable and that, except as herein provided, Consultant shall not be
accountable for any loss suffered by the Company by reason of Company's
action or non-action on the basis of any advice, recommendation or
approval of Consultant, its employees or agents.
The parties further acknowledge that Consultant undertakes no
responsibility for the accuracy of any statements to be made by management
contained in press releases or other communications, including, but not
limited to, filings with the Securities and Exchange Commission and the
National Association of Securities Dealers.
8. CONFIDENTIALITY: Consultant will not disclose to any other person, firm or
corporation, nor use for his own benefit, during or after the term of this
Consulting Agreement, any trade secrets or other information designated as
confidential by the Company which is acquired by Consultant in the course
of his performing services hereunder. (A trade secret is information not
generally known to the trade, which gives the Company an advantage over
its competitors. Trade secrets can include, by way of example, products or
services under development, production methods and processes, sources of
supply, customer lists, marketing plans and information concerning the
filing of pendency of patent applications). Any
management advice rendered by Consultant pursuant to this Consulting
Agreement may not be disclosed publicly in any manner without the prior
written approval of Consultant.
9. INDEMNIFICATION: The Company agrees to indemnify and hold Consultant
harmless from and against all losses, claims, damages, liabilities, costs
or expenses (including reasonable attorneys' fees (collectively the
"Liabilities") joint and several, arising out of the performance of this
Consulting Agreement, whether or not Consultant is a party to such
dispute. This indemnity shall not apply, however, and Consultant shall
indemnify and hold the Company, its affiliates, control persons, officers,
employees and agents harmless from and against all liabilities, where a
court of competent jurisdiction has made a final determination that
Consultant engaged in gross negligence or willful misconduct in the
performance of its services hereunder which gave rise to the losses,
claim, damage, liability, cost or expense sought to be recovered hereunder
(but pending any such final determination, the indemnification and
reimbursement provision of this Consulting Agreement shall apply and the
Company shall perform its obligations hereunder (but pending any such
final determination, the indemnification and reimbursement provision of
this Consulting Agreement shall apply and the Company shall perform its
obligations hereunder to reimburse Consultant for its expenses.) The
provisions of this paragraph shall survive the termination and expiration
of this Consulting Agreement.
10. BREACH OF CONTRACT: The sole remedy of the Company in respect of any
material breach of this Agreement by Consultant shall be to terminate this
Agreement upon the giving of thirty (30) days prior written notice, but no
such termination shall affect the options exercisable pursuant to
paragraph 5 hereof.
11. INDEPENDENT CONTRACTOR: Consultant and the Company hereby acknowledge that
Consultant is an independent contractor. Consultant shall not hold himself
out as, nor shall he take any action from which others might infer, that
he is a partner of, agent of or as joint venture of the Company.
12. HEADINGS: The headings in this Agreement are for reference purpose only
and shall not in any way affect the meaning of interpretation of this
Agreement.
13. SEVERABILITY OF PROVISIONS: The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or
enforcement of any other provision or any part thereof.
14. This Agreement is conditional upon the approval of the Agreement by the
Company's Board of Directors by no later than October 30, 2001 failing
which this Agreement shall be null and void and of no effect whatsoever.
Consultant - (Xxxxxxx Xxxxxx)
/s/ Xxxxxxx Xxxxxx
Company - (ThermoElastic Technologies, Inc.)
/s/ Xxxxxxx X. Xxxxxxxxx
