EXHIBIT 10.1
Consulting Services Agreement with M. Xxxxxx Xxxxx
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is entered this 4th
day of July, 2002 by and between M. Xxxxxx Xxxxx ("Consultant"), individual, and
Knowledge Transfer Systems, Inc. (OTCBB: KTSI) ("Client"), a Nevada corporation,
with reference to the following:
Preliminary Statement
A. The Client desires to be assured of the association and services of
the Consultant in order to avail itself of the Consultant's experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and is
therefore willing to engage the Consultant upon the terms and conditions set
forth herein. Consultant desires to be assured, and Client desires to assure
Consultant, that, if Consultant associates with Client and allocates the
resources necessary to provide Client with its services as Client requires and
expects, Consultant will be paid the consideration described herein and said
consideration will be nonrefundable, regardless of the circumstances.
B. The Consultant agrees to be engaged and retained by the Client and
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive basis, and
Consultant hereby accepts the engagement to become a Consultant to the Client.
Consultant agrees to allocate the majority of its resources for a period of no
less than 90 days to render such advice, consultation, information, and services
to the Directors and/or Officers of the Client regarding general business
matters including, but not limited to:
a. Development of potential strategic alliances, mergers and
acquisitions;
b. Corporate planning, strategy and negotiations with potential
strategic business partners and/or other general business
consulting needs as expressed by Client;
c. Business development and business advertising;
d. e-Consulting providing business solutions;
e. Structuring and providing alternative sources for accounts
receivable, purchase order and other asset financing.
f. Due diligence processes and Capital structures;
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g. Periodic reporting as to developments concerning the general
financial markets and public securities markets and industry
which may be relevant or of interest or concern to the Client or
the Client's business.
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties hereto that the aforementioned services
to be provided by Consultant shall not involve any capital raising efforts or
promotion of the Client's securities. It shall be expressly understood that
Consultant shall have no power to bind Client to any contract or obligation or
to transact any business in Client's name or on behalf of Client in any manner.
It is expressly understood and agreed by Client that, in reliance upon
Client's representations, warranties and covenants contained herein, immediately
upon execution and delivery of this Agreement by Client, Consultant is setting
aside and allocating for the benefit of Client valuable resources (including,
without limitation, capital and reservation of work schedules of employees)
required to fulfill Consultant's obligation described in paragraph B.1. hereof.
In doing so, Consultant agrees to forebear from undertaking other opportunities
and commitments (that would result in enrichment to Consultant) in order to be
available to provide Client the services contemplated by this Agreement.
2. Term. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation, including, without
limitation, the obligation of Client to pay the nonrefundable consideration
described in paragraph B.4. hereof.
3. Due Diligence. The Client shall supply and deliver to the Consultant
all information relating to the Client Company's business as may be reasonably
requested by the Consultant to enable the Consultant to make an assessment of
the Client's company and business prospects and provide the consulting services
described in paragraph B.1. hereof.
4. Compensation and Fees. As consideration for Consultant entering into
this Agreement, Client agrees to pay and deliver to Consultant the following
consideration, which consideration is nonrefundable regardless of the
circumstances:
a. Client shall issue certificates representing an aggregate of two
million five hundred thousand (2,500,000) shares. Client agrees
to register the shares under the Securities Act of 1933 in an
expeditious manner.
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Shares are payable in two payments: The first payment of one
million five hundred thousand (1,500,000) shares is due on the
date hereof, and the second payment of one million (1,000,000)
shares is due 90 days after the date hereof as long as the
Agreement has not been terminated by Client for any reason
(regardless of paragraph B.2. above), within the first eighty
(80) days from the date of the Agreement.
The Shares, when issued to Consultant, will be duly authorized, validly
issued and outstanding, fully paid and nonassessable and will not be subject to
any liens or encumbrances.
Securities shall be issued to Consultant in accordance with a mutually
acceptable plan of issuance as to relieve securities or Consultant from
restrictions upon transferability of shares in compliance with applicable
registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Client and Consultant and their advisors, Client agrees that, when received by
Consultant, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Client further acknowledges and agrees that said
consideration is earned by Consultant: (1) upon Client's execution and delivery
of the Agreement and prior to the provision of any service hereunder; (2) in
part, by reason of Consultant's agreement to make its resources available to
serve Client and as further described in the Preliminary Statement and elsewhere
herein; and (3) regardless of whether Client seeks to terminate this Agreement
prior to Consultant's delivery of any services hereunder. If Client takes any
action to terminate this Agreement or to recover any consideration paid or
delivered by Client to Consultant other than by reason of Consultant's gross
negligence or willful misconduct, Consultant shall be entitled to all available
equitable remedies, consequential and incidental damages and reasonable
attorneys' fees and costs incurred as a result thereof, regardless of whether
suit is filed and regardless of whether Client or Consultant prevails in any
such suit.
5. Representations, Warrants and Covenants. The Client represents,
warrants and covenants to the Consultant as follows:
a. The Client has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of
this Agreement by the Client and its delivery to the Consultant,
and the consummation by it of the transactions which are
contemplated herein have been duly approved and authorized by
all necessary action by the Client's Board of Directors and no
further authorization shall be necessary on the part of the
Client for the performance and consummation by the Client of the
transactions which are contemplated by this Agreement.
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b. The business and operations of the Client have been and are
being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Client or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Client or cause an acceleration under any arrangement, agreement
or other instrument to which the Client is a party or by which
any of its assets are bound. The Client has performed in all
respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the
terms of any such agreement, contract or commitment.
6. Exclusivity; Performance; Confidentiality. The services of
Consultant hereunder shall not be exclusive, and Consultant and its agents may
perform similar or different services for other persons or entities whether or
not they are competitors of Client. The Consultant agrees that it will, at all
times, faithfully and in a professional manner perform all of the duties that
may be reasonably required of the Consultant pursuant to the terms of this
Agreement. Consultant shall be required to expend only such time as is necessary
to service Client in a commercially reasonable manner. The Consultant does not
guarantee that its efforts will have any impact upon the Client's business or
that there will be any specific result or improvement from the Consultant's
efforts. Consultant acknowledges and agrees that confidential and valuable
information proprietary to Client and obtained during its engagement by the
Client, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Client, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential.
7. Independent Contractor. In its performance hereunder, Consultant and
its agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultant to provide services to Client at any specific time, or in
any specific place or manner. Payments to Consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. Arbitration and Fees. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
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relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is required for any payment
not made when due, the creditor shall collect statutory interest and the cost of
collection, including attorney's fees whether or not court action is required
for enforcement. The prevailing party in any such proceeding shall also be
entitled to reasonable attorneys' fees and costs in connection all appeals of
any judgment.
9. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail; or (ii) overnight
delivery with confirmation of delivery; or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: Knowledge Transfer Systems, Inc.
Attention: Xxxxx Xxxxx
000 Xxxxxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Consultant: International Monetary Resources, Inc.
Attention: M. Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. Additional Provisions. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
and no waiver shall constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all parties. This Agreement constitutes the entire agreement between
the parties and supersedes any prior agreements or negotiations. There are no
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third party beneficiaries of this Agreement. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
11. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12. Preliminary Statement. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on the date first written above.
"Client"
Knowledge Transfer Systems, Inc.
Signature: _____________________
Print name: Xxxxxx X. Xxxxx
Print title: Chairman & CEO
"Consultant"
Signature: _____________________
Print name: M. Xxxxxx Xxxxx
Print title: Consultant
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