EXHIBIT 10
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 9th day of October,
2001 by and between NOSTALGIA MOTORCARS, INC., hereinafter referred to as
"Client", with its principal place of business at 0000 X. Xxxxx, Xx., Xxxxxxx,
XX 00000, and Xxxxxx X. Xxxxxxx, with his place of business at 00000 Xxxx
XXxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000, hereinafter referred to as
"Consultant".
RECITALS
A. WHEREAS, Client is a development stage company; and
B. WHEREAS, the Consultant is generally knowledgeable in the areas of
identifying acquisition targets consistent with the business operations of the
Company and possesses a high level of experience in the legal areas of merger
structure; and
C. WHEREAS, the Company wishes to engage the Consultant on a
nonexclusive basis as an independent contractor to utilize Consultant's general
acquisition experience and specific merger structure experience for this type of
Company; and
D. WHEREAS, the Consultant is willing to be so retained on the terms
and conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to
perform the following consulting services (the "Consulting Services");
1.1 Duties of Consultant. The Consultant will provide such services and
advice to the Company so as to assist the Company in identifying acquisition
targets for the Company and advise the Company in structuring mergers or other
acquisitions and compliance matters. Without limiting generality of the
foregoing, Consultant will also assist the Company in developing, studying and
evaluating acquisition proposals, prepare reports and studies thereon when
advisable, and assist in negotiations and discussions pertaining thereof.
Nothing contained herein constitutes a commitment on the part of the Consultant
to find an acquisition target for the Company or, if such target is found, that
any transaction will be completed. This Agreement is not a contract for listing
services, and nothing in this Agreement will require the Consultant to negotiate
on behalf of the Company with corporations that are involved with listings or
making a market in corporate securities in the OTC markets.
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2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relation
services to the Company inclusive of but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing. The Consultant shall not have the power of authority to bind the
Company to any transaction without the Company's prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive
from the Client a fee Two Hundred Thousand, (200,000) shares of Clients common
stock, in advance, as consideration for the services rendered or to be rendered
pursuant to this Agreement.
4. Term. This Agreement shall be effective for a term of six (6) months
starting from the date first written above unless sooner terminated upon mutual
written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of reimbursement
form the Company unless such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any terms of this Agreement, the Consultant shall not be liable to the Company
or to any officer, director, employee, stockholder or creditor of the Company,
for any act or omission in the course of or in connection with the rendering or
providing of services hereunder. Except in those cases where the gross
negligence or willful misconduct of the Consultant or the breach by the
Consultant of any terms of this Agreement is alleged and proven, the Company
agrees to defend, indemnify, and hold the Consultant harmless from and against
any and all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of the Consultant) which may in any way
result from services rendered by the Consultant pursuant to or in any connection
with this Agreement. This indemnification expressly excludes any and all damages
as a result of any actions or statements, on behalf of the Company, made by the
Consultant without the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify, and
hold the Company harmless from an against any and all reasonable costs, expenses
and liability (including reasonable attorney's fees paid in defense of the
Company) which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Company, without the prior approval or authorization of the
Company or which are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representations:
a. Consultant has no prior or existing legally binding
obligations that are in conflict with its entering into this Agreement;
b. Consultant shall not offer or make payment of any
consideration to brokers, dealers, or others for purposes of inducing the
purchase, making of a market or recommendation for the purchase of the Company's
securities;
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c. Consultant is not currently the subject of an
investigation or inquiry by the Securities and Exchange Commission, the NASD, or
any state securities commission;
d. Consultant's activities and operations fully comply with
now and will comply with in the future all applicable state and federal
securities laws and regulations;
e. Consultant understands that, as a result of its services,
it may come to possess material non-public information about the Company, and
that it has implemented internal control procedures designed to reasonably to
insure that it and none of its employees, agents, Consultant or affiliates,
trade in the securities of client companies while in possession of material
non-public information;
f. During the Term of this Agreement and for a period of two
years thereafter, the Consultant shall treat as the Company's confidential trade
secrets all date, information, ideas, knowledge and papers pertaining to the
affairs of the Company. Without limiting the generality of the foregoing, such
trade secrets shall include: the identity of the Company's customers, suppliers
and prospective customers and suppliers; the identity of the Company's creditors
and other sources of financing; the Company's estimating and costing procedures
and the cost and gross prices charged by the Company for its products; the
prices or other consideration charged to or required of the Company by any of
its suppliers or potential suppliers; the Company's sales and promotional
policies; and all information relating to entertainment programs or properties
being produced or otherwise developed by the Company. The Consultant shall not
reveal said trade secretes to others except in the proper exercise of its duties
for the Company, or use their knowledge thereof in any way that would be
detrimental to the interest of the Company, unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers and suppliers, and:
g. Consultant agrees to notify the Company immediately if, at
any time, any of the representations and warranties made by the Consultant
herein are no longer true and correct or if a breach of any of the
representations and warranties made by the Consultant herein occurs,
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9. The Company makes the following representations:
a. The Company is not currently the subject of an
investigation or inquiry by the Securities and Exchange Commission, the NASD, or
any state securities commission;
b. The Company is in good standing in its state of
incorporation;
c. The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual and
quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of nay of the provisions of this Agreement shall
be deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing wavier. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by the parties (except by operation of law or
merger) and shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties
hereto shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
Company:
NOSTALGIA MOTORCARS, INC.
0000 X. Xxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Consultant:
Xxxxxx X. Xxxxxxx
00000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000X0
Attn: Xxxxxx X. Xxxxxxx
or at such other location as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice or other communication shall
be deemed to be given on the date of receipt.
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14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Nevada, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it
had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
19. Independent Contractor Status. There is no relationship,
partnership, agency, employment, franchise or joint venture between the parties.
The parties have no authority to bind the other or incur any obligations on
their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly execute this Agreement
as of the date first written above.
NOSTALGIA MOTORCARS, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Xxxx Xxxxxxxx its President
Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
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