CONSULTING AGREEMENT
Exhibit 10.1
This
Consulting Agreement (the “Agreement”), is made on this day, October 4, 2006,
and effective August 1, 2006 between Systems Evolution, Inc. an Idaho
corporation, 00000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx 00000, (hereinafter
referred to as the “Company”) and Xxxxxx Holding, LLC, 0000 Xxxxxx Xxx Xxxxx,
Xxxxx Xxxx, Xxxxx 00000 (the “Consultant”).
WHEREAS,
the Company requires the Services (as defined herein) and as set forth herein;
WHEREAS,
Consultant is qualified to provide the Company with the Services and is desirous
to perform such Services for the Company; and
WHEREAS,
the Company wishes to induce Consultant to provide the Services and wishes
to
contract with the Consultant regarding the same and compensate Consultant in
accordance with the terms herein;
NOW,
THEREFORE,
in
consideration of the mutual covenants hereinafter stated, it is agreed as
follows:
1. APPOINTMENT.
The
Company hereby engages Consultant and Consultant agrees to render the Services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
Subject
to Section 8(a), the term of this Consulting Agreement shall begin as of the
date of the Effective Date, and shall terminate 36 months thereafter
(hereinafter, the "Term").
3. SERVICES.
During
the term of this Agreement, Consultant shall provide the Company with the
following “Services.” Services shall be limited to making recommendations and
offering advice to the Company’s Officers, Directors and other key Company
personnel.
a. During
the term of this Agreement, Consultant shall provide the Company with the
following “Services”:
i. The
Managing Member of Consultant, Xxxxxx X. Xxxxxx, shall serve as the Company’s
President, Chief Executive Officer and Chief Financial Officer and also serve
as
a Director of the Company. Except with respect to the matters specified in
this
paragraph, Xx. Xxxxxx will devote sufficient working time and efforts to
adequately attend the business and affairs of the Company. However, Xx. Xxxxxx
will not work full time and the Company agrees that Xx. Xxxxxx may have outside
business activities, including, but not limited to, the operation of Xxxxxx
Holdings, LLC. In addition, Xx. Xxxxxx shall not be precluded from:
(a) from engaging in appropriate civic, charitable or religious activities;
(b) from serving on the boards of directors of other entities, including
other public companies, with the consent of the Company, which consent shall
not
be unreasonably withheld; (c) from providing incidental assistance to
family members on matters of family business, so long as the foregoing
activities and service do not conflict with Xx. Xxxxxx' responsibilities to
the
Company; and (d) from completing, managing and supervising Xx. Xxxxxx’
personal business affairs.
4. COMPENSATION. In
connection with this Agreement, the foregoing shall be referred to as
“Compensation.” All Compensation due to be delivered and/or paid to Consultant
pursuant to this Agreement shall be deemed completely earned, due, payable
and
non-assessable as of the date the Compensation is due to or vested in
Consultant. Compensation shall consist of the following:
a. Base
Salary. $200,000
cash per year payable in 12 monthly installments.
c. Stock
award. In
exchange for forgiving the currently payable and outstanding $100,000 bonus
authorized by the SEVI Board of Directors, in lieu of the above referenced
Bonus
opportunity for the next three years, and to induce Consultant to enter into
this agreement, 100,000,000 restricted common shares of Systems Evolution Inc.
are awarded to Consultant. If Consultant discontinues providing services to
the
Company voluntarily within the term of this agreement, Consultant is required
to
repay such shares in their entirety to the Company. If the Company releases
Consultant from this agreement or the Consultant dies, Consultant or the
Consultant’s Heirs will not be required to repay said shares.
c. Expenses. The
Company will reimburse (monthly) Consultant for all reasonable and necessary
expenses incurred by Consultant in connection with the Company's business
including: entertainment, airfare, automobile (except business travel within
the
Xxxxxx County metro area, which shall be at Consultant’s expense), hotel and
miscellaneous expenses incurred by Consultant.
5. REPRESENTATIONS
AND WARRANTIES OF COMPANY.
The
Company hereby represents, warrants and agrees as follows:
a. This
Agreement has been authorized, executed and delivered by the Company and, when
executed by the Consultant will constitute the valid and binding agreement
of
the Company enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or
reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles.
b. The
financial statements, audited and unaudited (including the notes thereto)
provided to Consultant, (the “Financial Statements”), will present fairly the
financial position of the Company as of the dates indicated and the results
of
operations and cash flows of the Company for the periods specified. Such
Financial Statements will be prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved except as otherwise stated therein.
c. The
Company is validly organized, existing and with active status under the laws
the
State of Idaho.
d. The
securities to be issued to Consultant, if any, have all been authorized for
issuance and when issued, delivered and tendered to the Consultant by the
Company will be validly issued, fully paid and non-assessable.
e. Since
date of the most recent of the Financial Statements, there has not been any
(A)
material adverse change in the business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company, (B) transaction
that is material to the Company, except transactions in the ordinary course
of
business, (C) obligation that is material to the Company, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course
of
business, (D) change that is material to the Company or in the common shares
or
outstanding indebtedness of the Company, or (E) dividend or distribution of
any
kind declared, paid, or made in respect of the common shares.
f. The
Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. Consultant in the absence of notice in
writing from the Company will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he
has
knowledge of and is experienced in providing the aforementioned
services.
6. INDEMNIFICATION.
The
Company agrees to indemnify the Consultant and hold it harmless against any
losses, claims, damages or liabilities incurred by the Consultant, in connection
with, or relating in any manner, directly or indirectly, to the Consultant
rendering the Services in accordance with the Agreement, unless it is determined
by a court of competent jurisdiction that such losses, claims, damages or
liabilities arose out of the Consultant’s breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or violation
of any applicable law. Additionally, the Company agrees to reimburse the
Consultant immediately for any and all expenses, including, without limitation,
attorney fees, incurred by the Consultant in connection with investigating,
preparing to defend or defending, or otherwise being involved in, any lawsuits,
claims or other proceedings arising out of or in connection with or relating
in
any manner, directly or indirectly, to the rendering of any Services by the
Consultant in accordance with the Agreement (as defendant, nonparty, or in
any
other capacity other than as a plaintiff, including, without limitation, as
a
party in an interpleader action). The Company further agrees that the
indemnification and reimbursement commitments set forth in this paragraph shall
extend to any controlling person, strategic alliance, partner, member,
shareholder, director, officer, employee, agent or subcontractor of the
Consultant and their heirs, legal representatives, successors and assigns.
The
provisions set forth in this Section shall survive any termination of this
Agreement.
7. COMPLIANCE
WITH SECURITIES LAWS.
The
Company understands that any and all compensation outlined in this Agreement
shall be paid solely and exclusively as consideration for the aforementioned
consulting efforts made by Consultant on behalf of the Company as an independent
contractor. The Parties to be performing the services outlined in this Agreement
are natural persons. Consultant has been engaged to provide the Company with
traditional “public company” business, technical and related business services.
Consultant’s engagement does not involve the marketing of any Company securities
nor is Consultant being hired to raise money for the Company.
8. MISCELLANEOUS.
a. Termination:
This
Agreement may be terminated by either Party for any reason at any time
(hereinafter referred to as a “Termination”).
b. Modification:
This
Agreement sets forth the entire understanding of the Parties with respect to
the
subject matter hereof. This Agreement may be amended only in writing signed
by
both Parties.
c. Notices:
Any
notice required or permitted to be given hereunder shall be in writing and
shall
be mailed or otherwise delivered in person to the Parties at the addresses
set
forth above.
d. Waiver:
Any
waiver by either party of a breach of any provision of this Agreement shall
not
operate as or be construed to be a waiver of any other breach of that provision
or of any breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Consulting Agreement
on one or more occasions will not be considered a waiver or deprive that party
of the right thereafter to insist upon adherence to that term of any other
term
of this Consulting Agreement.
e. Severability:
If any
provision of this Agreement is invalid, illegal, or unenforceable, the balance
of this Consulting Agreement shall remain in effect. If any provision is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances. If any compensation provision
is deemed unenforceable or illegal, then in the case of the delivery of common
stock to the Consultant, Consultant shall be entitled to receive a cash benefit
equal to the value of the common stock that would have been tendered had such
a
provision not been illegal or unenforceable.
f. Arbitration:
Any
dispute or other disagreement arising from or out of this Agreement shall be
submitted to arbitration under the rules of the American Arbitration Association
and the decision of the arbiter(s) shall be enforceable in any court having
jurisdiction thereof. Arbitration shall occur only in Xxxxxx County, Texas.
The
interpretation and the enforcement of this Agreement shall be governed by Texas
Law as applied to residents of the State of Texas relating to contracts executed
in and to be performed solely within the State of Texas.
g. Governing
Law:
The
subject matter of this Agreement shall be governed by and construed in
accordance with the laws of the State of Texas (without reference to its choice
of law principles), and to the exclusion of the law of any other forum, without
regard to the jurisdiction in which any action or special proceeding may be
instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION
AND
VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF XXXXXX, TEXAS
FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH, OR BY REASON
OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND
HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN
INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY
SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE. If
it
becomes necessary for any party to institute legal action to enforce the terms
and conditions of this Agreement, the prevailing party shall be awarded
reasonable attorneys fees, expenses and costs.
h. Specific
Performance:
The
Company and the Consultant shall have the right to demand specific performance
of the terms, and each of them, of this Agreement.
i. Execution
of the Agreement:
The
Company, the party executing this Agreement on behalf of the Company, and the
Consultant, have the requisite corporate power and authority to enter into
and
carry out the terms and conditions of this Agreement, as well as all
transactions contemplated hereunder. All corporate proceedings have been taken
and all corporate authorizations and approvals have been secured which are
necessary to authorize the execution, delivery and performance by the Company
and the Consultant of this Agreement. This Agreement has been duly and validly
executed and delivered by the Company and the Consultant and constitutes a
valid
and binding obligation, enforceable in accordance with the respective terms
herein. Upon delivery of this Agreement, this
Agreement, and the other agreements and exhibits referred to herein, will
constitute the valid and binding obligations of Company,
and
will be enforceable in accordance with their respective terms. Delivery may
take
place via facsimile transmission.
j. Joint
Drafting and Reliance on Independent Counsel.
This
Agreement shall be deemed to have been drafted jointly by the Parties hereto,
and no inference or interpretation against any one party shall be made solely
by
virtue of such party allegedly having been the draftsperson of this Agreement.
The Parties have each conducted sufficient and appropriate due diligence with
respect to the facts and circumstances surrounding and related to this
Agreement. The Parties expressly disclaim all reliance upon, and prospectively
waive any fraud, misrepresentation, negligence or other claim based on
information supplied by the other Party, in any way relating to the subject
matter of this Agreement.
k. Acknowledgments
and Assent.
The
Parties acknowledge that they have been given at least ten (10) days to consider
this Agreement and that they were advised to consult with an independent
attorney prior to signing this Agreement and that they have in fact consulted
with counsel of their own choosing prior to executing this Agreement. The
Parties may revoke this Agreement for a period of three (3) days after signing
this Agreement, and the Agreement shall not be effective or enforceable until
the expiration of this three (3) day revocation period. The Parties agree that
they have read this Agreement and understand the content herein, and freely
and
voluntarily assent to all of the terms herein.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, this Agreement has been executed by the Parties as of the
date
first above written.
|
/s/
Xxxxxx X. Xxxxxx
_________________________________
By:
Xxxxxx X. Xxxxxx
Chief
Executive Officer
Systems
Evolution Inc.
|
/s/
Xxxxxx X. Xxxxxx
___________________________________
By:
Xxxxxx X. Xxxxxx
Managing
Member
Xxxxxx
Holdings, LLC
|
|
/s/
Xxxxxxx X. Xxxxxxxx
_________________________________
By:
Xxxxxxx X. Xxxxxxxx
Head
of the Board Compensation Committee
Systems
Evolution Inc. Board Member
|
A
FACSIMILE COPY OF THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AS AN ORIGINAL
OF THE SAME.
