CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") made on this 12th day of
November 2002, by and between GK Intelligent Systems, Inc., a Delaware
corporation, located at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000 (the
"Client"), and AfterPlay Entertainment, Inc., a Nevada corporation, located at
0000 Xxxxx Xxxx, #000, Xxxxx Xxxxx, Xxxxxxx 00000 (the "Consultant") is made in
consideration of the mutual promises made herein and set forth as follows:
ARTICLE 1.
TERM OF AGREEMENT
1.1 This Agreement will become effective on the date first stated above and
will continue in effect until the services provided for in this Agreement have
been performed, or until terminated as provided in Article 7, below.
ARTICLE 2.
SERVICES TO BE PERFORMED BY CONSULTANT
2.1 Services. Consultant agrees to perform the following consulting
services to Client:
2.1.1 Assist in the development of general corporate strategy;
recommend an effective growth strategy; provide guidance involving the
pursuit of corporate goals and the development of the Company into a
profitable entity;
2.1.2 Mentor/assist in structuring the functional components of the
Company and posturing it for resurrection;
2.1.3 Provide advice and counsel concerning the applicability,
marketing and rollout of Client's technology/services, specifically but not
limited to the music and entertainment marketplace;
2.1.4 Offer support and guidance in establishing key business
alliances and affiliative relationships, specifically but not limited to
the music and entertainment marketplace;
2.1.5 Provide M&A consultation and support such as assisting in
selecting, evaluating and consummating transactions, specifically but not
limited to the music and entertainment marketplace; and,
2.1.6 Assist Client in identifying funding sources for projects and/or
ventures that may arise as a result of Consultant's efforts.
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2.2 Method of Performing Services. Consultant will determine the method,
details, and means of performing the above-described services. Consultant may
perform the Services under this Agreement at any suitable time and location of
Consultant's choice, however the Consultant shall make himself available to the
Client as set forth in Section 5.3.
2.3 Status of Consultant. Consultant is and shall remain an independent
contractor. Consultant and any agents or employees of Consultant shall not act
as an officer or employee of Client. Client assumes no liability for
Consultant's actions in performance, or responsibility for taxes, funds,
payments or other commitments, implied or expressed, by or for Consultant.
Consultant has no authority to assume or create any commitment or obligation on
behalf of, or to bind, Client in any respect.
2.4 Use of Employees or Subcontractors. Upon Client's prior written
approval if any additional cost to Client will be incurred, Consultant may use
any employees or subcontractors as Consultant deems necessary to perform the
services required of Consultant by this Agreement. Client acknowledges and
agrees that Consultant may realize a commission on the use of such employees and
subcontractors for the performance of additional services as described in
paragraph 3.4, below, and such commission shall be an included cost in any
proposal submitted to Client by Consultant. Notwithstanding the foregoing, any
proposal prepared by Consultant, which includes consulting fees to be charged by
Consultant to Client, shall be clearly identified and quoted as such.
ARTICLE 3.
COMPENSATION
3.1 Retainer Fee. Client shall pay a monthly retainer fee of twenty
thousand and no/100 dollars ($20,000.00), which shall be due and payable, on the
first day of each month commencing with the execution of this Agreement (the
"Retainer Fee").
3.2 Share Fee. As additional compensation,
3.2.1 Month One: Within fifteen (15) days following execution of this
Agreement, the Client shall issue share certificates to Consultant
representing two hundred thousand (200,000) shares of the Client's common
stock for the first month of the Consultant's services rendered under the
Agreement (the "Month One Share Fee"); and,
3.2.2 Month Two and Beyond: The Client shall issue at the end of each
successive month following Month One and the Month One Share Fee, one
hundred sixty thousand (160,000) shares of the Client's common stock for
each successive month of the Consultant's services rendered under the
Agreement.
Consultant acknowledges and understands said stock is unregistered,
restricted stock and any certificate(s) for shares of the Client issued pursuant
to this paragraph will contain the following restrictive legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION FOR THESE SHARES UNDER SUCH ACT
OR AN OPINION OF THE COMPANY'S COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SAID ACT.
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3.2 Invoicing and Payment Terms. Consultant shall submit to Client an
invoice for the Retainer Fee and any and all additional services rendered on or
before the first of each month. Client agrees to pay any net amount due to
Consultant within ten (10) days after receipt of the statement.
3.3 Payment of Expenses. Consultant shall be responsible for its normal and
customary overhead business expenses incurred in performing services under this
Agreement, including without limitation, telephone, facsimile, postage,
photocopying, supplies, rent, employee salaries and benefits, and insurance.
Travel expenses and other extraordinary expenses in relation to the Client shall
require the Consultant to obtain the prior written approval of Client. Where
Consultant is required to travel outside the State of Florida on business, all
travel arrangements will be at business class, and if not available, then based
on available first class travel accommodations.
3.4 M&A Fee: In the event Consultant is the procuring cause (i.e., the
first communication between Client and the third party occurs solely as the
result of Consultant's introduction) of a successful merger, acquisition, or
receipt of financing by Client, Consultant shall be paid additional compensation
in an amount equal to three percent (3%) of the total merger/acquisition value,
or five percent (5%) of the total amount of financing secured on behalf of the
Client ("M&A Fee"). The M&A Fee shall be due and payable to Consultant within
fifteen (15) days following the close of the applicable transaction.
ARTICLE 4
REGISTRATION RIGHTS
4.1 "Piggyback" Registration Rights. If at any time during the Term of this
Agreement, the Company shall determine to proceed with the actual preparation
and filing of a registration statement under the Act in connection with the
proposed offer and sale of any of its securities by it or any of its security
holders (other than a registration statement on Form X-0, X-0 or other limited
purpose form), the Company will give written notice of its determination to the
Consultant. Upon the written request from the Consultant, within 15 days after
receipt of any such notice from the Company, the Company will, except as herein
provided, cause all such Shares held by Consultant (the "Consultant's Shares")
to be included in such registration statement, to the extent requisite to permit
the sale or other disposition by the Consultant of the shares to be so
registered; provided, further, that nothing herein shall prevent the Company
from, at any time, abandoning or delaying any registration. If any registration
pursuant to this Section 4.1 shall be underwritten in whole or in part, the
Company may require that the Consultant's Shares requested for inclusion
pursuant to this Section 4.1 be included in the underwriting on the same terms
and conditions as the securities otherwise being sold through the underwriters.
If in the good faith judgment of the managing underwriter of such public
offering the inclusion of all of the Consultant's Shares would reduce the number
of shares to be offered by the Company or interfere with the successful
marketing of the shares of stock offered by the Company, the number of
Consultant's Shares otherwise to be included in the underwritten public offering
may be reduced or excluded in their entirety if so required by the underwriter.
To the extent only a portion of the Consultant's Shares are included in the
underwritten public offering, those shares which are thus excluded from the
underwritten public offering shall be withheld from the market for a period, not
to exceed 90 days, which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering.
The obligation of the Company under this Section 4.1 shall not apply to any
of the Consultant's Shares that at such time are eligible for immediate resale
pursuant to Rule 144(k) under the Act. The Company shall pay the expenses
described in Section 4.2 for the registration statement filed pursuant to this
Section 4.1, except for underwriting discounts and commissions and legal fees of
the Consultant, which shall be borne by the Consultant.
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4.2 Registration Procedures. The Company will:
4.2.1 Prepare and file with the SEC a registration statement with
respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective for a period not to
exceed ninety (90) days from the time when such registration statement has
become effective;
4.2.2 Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective for a
period of not to exceed ninety (90) days from the time when such
registration statement has become effective;
4.2.3 Furnish to the Consultant a copy of the registration statement,
preliminary prospectus, final prospectus and such other documents utilized
to facilitate the public offering of such securities;
4.2.4 Use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue
sky laws of such jurisdiction as the Consultant reasonably requests in
writing within 20 days following the original filing of such registration
statement, except that the Company shall not for any purpose be required to
execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
4.2.5 Notify the Consultant, promptly after it shall receive notice
thereof, of the time when such registration statement has become effective
or a supplement to any prospectus forming a part of such registration
statement has been filed;
4.2.6 Notify the Consultant promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or
for additional information;
4.2.7 Prepare and file with the SEC, promptly upon the request of the
Consultant, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Consultant (and
concurred in by counsel for the Company), is required under the Act or the
rules and regulations thereunder in connection with the distribution of
Common Stock by the Consultant;
4.2.8 Prepare and promptly file with the SEC and promptly notify the
Consultant of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading;
and
4.2.9 Advise the Consultant, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued.
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4.3 Expenses.
4.3.1 With respect to any registration pursuant to Sections 4.1
hereof, all fees, costs and expenses of and incidental to such
registration, inclusion and public offering (as specified in paragraph
4.3.2 below) in connection therewith shall be borne by the Company,
provided, however, that the Consultant shall bear his pro rata share of the
underwriting discount and commissions and transfer taxes.
4.3.2 The fees, costs and expenses of registration to be borne by the
Company as provided in paragraph 4.3.1 above shall include, without
limitation, all registration, filing, and NASD fees, printing expenses,
fees and disbursements of counsel and accountants for the Company, and all
legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to
be offered are to be registered and qualified (except as provided in 4.3.1
above). Fees and disbursements of counsel and accountants for the
Consultant and any other expenses incurred by the Consultant not expressly
included above shall be borne by the Consultant.
4.4 Indemnification.
4.4.1 The Company will indemnify and hold harmless the Consultant
whose Shares are included in a registration statement pursuant to the
provisions of Section 4.1 hereof, its directors and officers, and any
underwriter (as defined in the Act) for such holder and each person, if
any, who controls such holder or such underwriter within the meaning of the
Act, from and against, and will reimburse such holder and each such
underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which the Consultant or any such
underwriter or controlling person may become subject under the Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses
are caused by any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, damage, liability, cost or
expenses arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by the Consultant, such underwriter or such
controlling person in writing specifically for use in the preparation
thereof.
4.4.2 The Consultant, when included in a registration pursuant to the
provisions of Section 4.1 hereof, will indemnify and hold harmless the
Company, its directors and officers, any controlling person and any
underwriter from and against, and will reimburse the Company, its directors
and officers, any controlling person and any underwriter with respect to,
any and all loss, damage, liability, cost or expense to which the Company
or any controlling person and/or any underwriter may become subject under
the Act or otherwise, insofar as such losses, damages, liabilities, costs
or expenses are caused by any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any
prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in strict conformity with
written information furnished by or on behalf of the Consultant
specifically for use in the preparation thereof.
4.4.3 Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph 4.4.1 or 4.4.2 of this Section 4.4 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions such indemnified party will, if a claim thereof is to
be made against the indemnifying party pursuant to the provisions of said
paragraph 4.4.1 or 4.4.2, promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than hereunder. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, provided, however, if
counsel for the indemnifying party concludes that a single counsel cannot
under applicable legal and ethical considerations, represent both the
indemnifying party and the indemnified party, the indemnified party or
parties have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of said
paragraph 4.4.1 or 4.4.2 for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation, unless (i) the indemnified
party shall have employed counsel in accordance with the provisions of the
preceding sentence, (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the notice of the commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
ARTICLE 5.
OBLIGATIONS OF CONSULTANT
5.1 Non-Exclusive Relationship. Client acknowledges and agrees that the
relationship with Consultant is non-exclusive and Consultant may represent,
perform services for, and contract with, as many additional clients, persons or
companies as Consultant in Consultant's sole discretion sees fit.
5.2 Consultant's Qualifications. Consultant represents and warrants that
Consultant has the qualifications and skills necessary to perform the services
under this Agreement in a competent and professional manner, and is able to
fulfill the requirements of this Agreement. Consultant shall comply with all
applicable federal, state and local laws in the performance of its obligations
hereunder, and all materials used by Consultant in fulfilling its obligations
under this Agreement shall not infringe upon any third party copyright, patent,
trade secret or other proprietary right. Consultant acknowledges and agrees that
failure to perform all the services required under this agreement constitutes a
material breach of the Agreement.
5.3 Availability of Consultant. Consultant acknowledges and agrees that a
material consideration of this Agreement is that Consultant be in charge of all
services rendered to Client under this Agreement. Further, that the availability
of the Consultant be the equivalent of two (2) regular business days per week
and that the unavailability of such services shall constitute a material breach
of this Agreement. Should Client not avail itself of Consultant's services, from
one week to the next, such availability will not be accumulated without
Consultant's express approval.
5.4 Indemnity. Consultant agrees to indemnify, defend, and hold Client free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Client may incur as a result of a breach by Consultant of
any representation or agreement contained in this Agreement.
5.5 Assignment. Neither this Agreement nor any duties or obligations under
this Agreement may be assigned by Consultant without the prior written consent
of Client.
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ARTICLE 6.
OBLIGATIONS OF CLIENT
6.1 Compliance with Requests. Client agrees to comply with all reasonable
requests of Consultant necessary to the performance of Consultant's duties under
this Agreement.
6.2 Place of Work. Client agrees to furnish an office for Consultant on
Client's premises for use by Consultant from time-to-time when visiting the New
York/Houston areas to facilitate his performance of the above-described
services.
6.3 Company Provided Information. Client assumes full responsibility for
the accuracy and completeness of all information provided to Consultant.
6.4 Indemnity. Client agrees to indemnify, defend, and hold Consultant free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Consultant may incur as a result of any information
provided to Consultant by Client under this Agreement.
ARTICLE 7.
TERMINATION OF AGREEMENT
7.1 Termination on Notice. Notwithstanding any other provision of this
Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force until the
Services provided for in this Agreement have been fully and completely
performed.
7.2 Termination on Occurrence of Stated Events. This Agreement will
terminate automatically on the occurrence of any of the following events:
7.2.1 Unavailability of Consultant to manage and oversee all services
rendered to Client by Consultant under this Agreement;
7.2.2 Bankruptcy or insolvency of either party;
7.2.3 Dissolution of either party; and/or,
7.2.4 The assignment of this Agreement by Consultant without the prior
written consent of Client.
7.3 Termination for Default. If either party defaults in the performance of
this Agreement or materially breaches any of its provisions, the non-breaching
party may terminate this Agreement by giving written notification to the
breaching party. Termination will take effect immediately on receipt of notice
by the breaching party or five (5) days after mailing of notice, whichever
occurs first. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
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7.3.1 Consultant's failure to perform the services specified in this
Agreement;
7.3.2 Consultant's material breach of any representation or agreement
contained in Article 5, above;
7.3.3 Client's material breach of any representation or agreement
contained in Article 6, above; and/or,
7.3.4 Client's failure to pay Consultant any compensation due within
thirty (30) days after written demand for payment.
ARTICLE 8.
CLIENT INFORMATION
8.1 Nondisclosure/Nonuse of Client Information. Consultant agrees that all
information provided by Client to Consultant under this Agreement shall not be
disclosed or used by Consultant for any purpose other than Consultant's
performance under this Agreement.
8.2 Confidential Information. Any written, printed, graphic, or
electronically or magnetically recorded information furnished by Client for
Consultant's use is and shall remain the sole property of Client. This
proprietary information includes, but is not limited to, investor lists,
marketing information, planning, drawings, specifications, and information
concerning Client's employees, products, services, prices, and operations.
Consultant will keep this confidential information in the strictest confidence,
and will not disclose it by any means to any person except with Consultant's
prior written approval, and only to the extent necessary to perform the services
under this Agreement. This prohibition also applies to Consultant's employees,
agents, and subcontractors. On termination of this Agreement or request by
Client, Consultant will return within two (2) days any confidential information
in Consultant's possession to Client.
ARTICLE 9.
GENERAL PROVISIONS
9.1 Notices. Any notices to be given by either party to the other shall be
in writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change that address
by written notice in accordance with this section. Notices delivered personally
shall be deemed communicated as of the date of actual receipt. Mailed notices
shall be deemed communicated as of five (5) days after the date of mailing.
9.2 Attorneys' Fees and Costs. If this Agreement gives rise to a lawsuit or
other legal proceeding between any of the parties hereto, the prevailing party
shall be entitled to recover court costs, necessary disbursements (including
expert witnesses' fees) and reasonable attorneys' fees, in addition to any other
relief such party may be entitled.
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9.3 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services provided by Consultant to Client under this Agreement, and
contains all of the covenants and agreements between the parties with respect to
this Agreement in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
9.4 Modifications. Any modification of this Agreement will be effective
only if it is in writing signed by the party to be charged.
9.5 Effect of Waiver. The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
9.6 Partial Invalidity. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
9.7 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
9.8 Jurisdiction/Venue. Jurisdiction and venue for any dispute arising out
of this Agreement shall be exclusively in the city of Houston, State of Texas.
9.9 Construction. If any construction is to be made of any provision of
this Agreement, it shall not be construed against either party on the ground
such party was the drafter of the Agreement or any particular provision.
9.10 Time. Time is of the essence in this Agreement.
9.11 Corporate Authorization. If any signatory of this Agreement is a
corporation, said signatory represents and warrants that this Agreement and the
undersigned's execution of this Agreement have been duly authorized and approved
by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation(s) executing this Agreement on behalf of the
corporation(s) represent and warrant they are officers of the corporation(s)
with full authority to execute this Agreement on behalf of the corporation(s).
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IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective
as of the date first above written.
CLIENT: CONSULTANT:
GK Intelligent Systems, Inc. AfterPlay Entertainment, Inc.
/S/ Xxxx X. Xxxxxxx /S/ Xxx Xxxxxxx
------------------------ -------------------------------
By: Xxxx X. Xxxxxxx By: Xxx Xxxxxxx
Its: President Its: President
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