Exhibit 10.19
AGREEMENT FOR CONSULTING SERVICES
1. Parties. This Agreement for Consulting Services ("Agreement") is entered
into by and between Belvidere Networking Enterprises, a California corporation
("Consultant") and EMB Corporation ("Company") this 16th day of July, 2001.
Consultant and Company are collectively called the "Parties."
2. Purpose. Consultant and Company have voluntarily agreed to enter into
this Agreement in view of its mutual benefits, including the provision of
valuable services by Consultant and the payment of valuable consideration by
Company. It is the goal of this Agreement that the Consultant will assist the
Company in assembling and managing the operations of various mortgage lending
entities, which, collectively, will attain the following monthly mortgage loan
fundings targets: (a) twelve months from the date of this Agreement - $50
million; (b) eighteen months for the date of this Agreement - $75 million; (c)
twenty-four months from the date of this Agreement - $100 million; and (d)
thereafter, maintaining at least $100 million per month in mortgage loan
fundings.
3. Scope of Services. Consultant agrees to provide advisory and consulting
services as requested by Company during the term of this Agreement. Consultant's
services will include coordination, development, delivery and execution of
strategic planning efforts as directed by, and other projects mutually agreed to
with, the Chairman and Chief Executive Officer of the Company, and shall
include, but not be limited to, (a) identifying mortgage and other financial
service related companies for possible acquisition by, or merger with, the
Company; (b) conducting preliminary discussions with such companies regarding
their acquisition by, or merger with, the Company and other related matters; (c)
assisting the Company in performing due diligence inquiries of any entities
being considered for an acquisition by, or merger with, the Company,
irrespective of whether or not the Consultant had originally identified such
entity for such proposed acquisition or merger; and (d) providing the Company
with recommendations regarding management strategies for the operating
subsidiaries of the Company. The parties acknowledge that the compensation to be
paid Consultant is based upon Consultant's overall consulting services to be
rendered only to the extent that such services are requested by the Company and
that the funding targets set forth in paragraph 2, above, are not mandatory, but
desired goals. At no time will Consultant perform any services, for which
Consultant would be compensated pursuant to this Agreement, which would be in
contravention to any rules and or regulations of the United States Securities
and Exchange Commission (the "SEC") concerning compensation of consultants and
others by means of issuance of securities that have been registered with the SEC
on Form S-8 (the "SEC S-8 Rules").
4. Term of Agreement. This Agreement shall be effective commencing on July
16, 2001, through July 15, 2004, unless earlier terminated under paragraph 6
below. This Agreement may be extended (with or without change) for additional
periods on such terms as the parties may agree in writing.
5. Payment. As compensation for services to be performed by Consultant
during the term of this Agreement, Company agrees to pay Consultant the total
sum of $1,500,000, to be paid, in installments, by issuance of the Company's
-1-
Common Stock (the "EMB Common Stock"). Each installment payment of EMB Common
Stock to Consultant (individually and collectively, the "EMB Shares") shall be
subject to the following terms and conditions:
(a) Within fifteen (15) days of execution of this Agreement, Company shall
deliver to Consultant 400,000 EMB Shares to be considered as a deposit
of $100,000 towards future installment payments.
(b) On, or before, September 1, 2001, and on, before December 1, 2001, and
continuing on, or before, the first day of March, June, September and
December of each year thereafter through March 1, 2004, (each such
date being an "Installment Payment Date") the Company shall deliver to
Consultant that number of EMB Shares that shall be equal in value to
the sum of $125,000, the calculation of the number of shares being
issued and delivered to be determined in accordance with subparagraph
(d), below.
(c) On, or before, June 1, 2004, (the "Final Installment Payment Date"),
the Company shall deliver to Consultant that number of EMB Shares that
shall be equal in value to the sum of $125,000 less the $100,000
deposit, or $25,000, the calculation of the number of shares being
issued and delivered to be determined in accordance with subparagraph
(d), below.
(d) The number of EMB Shares to be issued and delivered to Consultant
pursuant to subparagraphs (b) and (c), above, shall be calculated in
the following manner: For each Installment Payment Date and the Final
Installment Payment Date, a date 15 days prior thereto (the "Valuation
Date") shall be utilized for the determination of the number of EMB
Shares to be issued and delivered to Consultant on the respective
Installment Payment Date or Final Installment Payment Date. As of each
Valuation Date, the value of the EMB Shares shall be determined by
dividing the dollar amount of the payment then due by the fair market
value of one share of EMB Common Stock, as determined in the manner
set forth in this subparagraph (d). If, as of the Valuation Date, the
EMB Common Stock is traded on a national securities exchange or the
NASDAQ Stock Market, then the fair market value of one share of EMB
Common Stock shall be the average of the closing selling prices of the
EMB Common Stock as reported by such exchange or as reported on the
NASDAQ Stock Market for the five trading days immediately preceding
the Valuation Date, or if there were no sales of EMB Common Stock
during such five-day period, then the fair market value of one share
of EMB Common Stock shall be deemed to be the closing selling price of
the EMB Common Stock as reported by such exchange or as reported on
the NASDAQ Market System for the next prior day on which there were
sales of EMB Common Stock. If, as of the Valuation Date, EMB Common
Stock is traded other than on a national securities exchange or the
NASDAQ Stock Market, then the fair market value of one share of EMB
Common Stock shall be the average of the closing bid and asked prices
of a share of EMB Common Stock on the Valuation Date as quoted on the
OTC Bulletin Board or the Pink Sheets, as relevant, for the five
trading days immediately preceding the Valuation Date or, if there is
no bid and asked price during such five-day period, the fair market
-2-
value of one share of EMB Common Stock shall be deemed to the average
of the closing bid and asked prices of EMB Common Stock as quoted on
the OTC Bulletin Board or the Pink Sheets, as relevant, for the next
prior trading day on which there was a bid and asked price. If no such
bid and asked price is available, the Board of Directors of EMB shall
make a good faith determination of the fair market value of one share
of EMB Common stock using any reasonable method of valuation.
(e) All of the EMB Shares to be issued and delivered to Consultant shall
have been registered with the SEC on Form S-8.
(f) In order to comply with the XXX X-0 Rules, unless, as a date of
issuance of EMB Shares to Consultant, any such applicable rule has
been amended to provide otherwise, the EMB Shares shall be issued in
the name of such individual nominee of Consultant as Consultant shall
advise the Company.
6. Termination. This Agreement may be terminated before its expiration
date specified in paragraph 4:
a. Upon written notice by the non-breaching party specifying a
material breach of this Agreement by the other party (including without
limitation breach of any obligation referenced in paragraphs 17 through 20
below);
b. Any act of dishonesty against the interest of Company;
c. Any willful and continual failure of Consultant to substantially
perform his duties;
d. Automatically upon the insolvency of Company resulting in a
petition in bankruptcy;
e. Notwithstanding any notice of termination pursuant to subparagraphs
(a) through (d), above, Consultant shall remain bound by the promises contained
in paragraphs 16-17, 19-21 and 22-29 below.
7. Supplies and Equipment. Consultant will provide the supplies and
equipment necessary to perform the services requested. Company shall provide
Consultant with reasonable access to the information and facilities necessary to
enable Consultant to perform services under this Agreement.
8. Expenses. Consultant shall pay all expenses incurred in performance of
said services. Unless otherwise agreed upon by Company in writing, expenses
incurred by Consultant in performing services for, or on behalf of Company,
shall not be reimbursed by Company.
9. Relationship Between Parties. The parties intend that Consultant shall
provide services to Company as an independent contractor. Nothing in this
Agreement shall be interpreted or construed as creating or establishing the
-3-
relationship of employee or employee between Company and Consultant, or any
employee or agent of Consultant. Consultant shall be solely and entirely
responsible for Consultant's acts and the acts of Consultant's employees, agents
or subcontractors.
10. Control. Consultant retains the sole and exclusive right to control or
direct the manner or means by which the services described herein are to be
performed.
11. Non-Exclusive Arrangement. It is not intended that Company will have an
exclusive right to Consultant's services during the course of this Agreement,
and Consultant shall retain the right to perform services for others during the
term of this Agreement. Company is free to utilize the services of others during
the term of this Agreement.
12. Time and Place of Work. Consultant's services shall be rendered in a
timely and professional manner at such places and during such hours as
Consultant and Company may determine consistent with the needs of the project as
defined by Company.
13. Benefits. Because Consultant is engaged as an independent contractor
and not an employee, Consultant will not be eligible to participate in employee
benefits, leaves of absence or other programs that are now or may be provided by
Company to its employees.
14. Taxes. Because Consultant is engaged as an independent contractor and
not an employee, no payment received by Consultant pursuant to this Agreement
shall be subject to employment tax withholding, nor shall Company withhold or
pay federal social security tax (FICA), Medicare tax, or federal or state income
tax, or make contributions to the federal or state unemployment or disability
insurance funds on behalf of Consultant. Consultant is responsible for filing
all income and other tax forms and paying all taxes due.
15. Insurance. Consultant shall be solely responsible for maintaining
insurance coverage applicable to Consultant's performance of services under this
Agreement, including but not limited to workers' compensation, automobile,
general liability and property damage insurance. Consultant shall indemnify and
defend Company against all liability or loss, and against all claims or actions
based upon or arising out of damage or injury to persons or property caused by
or sustained in connection with Consultant's performance of services under this
Agreement.
16. Arbitration. Except for any legal action by Company seeking injunctive
relief under paragraph 21 below, Consultant and Company hereby consent to submit
to final and binding arbitration in accordance with California Code of Civil
Procedure sections 1280 through 1296 any and all disputes and controversies
between Consultant and Company, or any of their respective employees, officers,
agents, or representatives, including without limitation any claims relating to
Consultant's engagement, claims for breach of contract, statute or public
policy, or personal injury (tort). Any dispute submitted to arbitration shall be
decided by a single, neutral arbitrator, which shall be mutually selected by the
parties not later than forty-five days after service of the demand for
arbitration. If the parties for any reason do not mutually select the Arbitrator
within the forty-five (45) day period, then either party may apply to any court
of competent jurisdiction to appoint a retired judge as the arbitrator. Judgment
on an award issued by the arbitrator may be entered in any court of competent
-4-
jurisdiction. The prevailing party shall be entitled to recover all costs
incurred as a result of the arbitration, including without limitation, filing
fees, attorneys' fees, compensation paid to the arbitrator and costs of
transcripts.
17. Proprietary Information.
a. Consultant's work for Company will bring Consultant into contact
with valuable business, technical and trade secret information that has been
discovered or accumulated by Company or its affiliates through the expenditure
of substantial time, effort and expense, and provides a competitive advantage to
Company ("Proprietary Information").
b. Proprietary Information includes confidential information and trade
secrets owned by Company, including but not limited to:
(1) customer needs, customer requirements, the services rendered or
proposed to customers, and fees charged or proposed to customers;
(2) financial, sales and marketing data relating to Company, the
industry or other areas pertaining to Company's activities or contemplated
activities including, without limitation, marketing plans, business strategies,
development plans and strategies, sales, profits, financial and/or accounting
information and techniques, and non-public cost and pricing information;
(3) research, development, inventions, specifications, designs,
ideas, methods, processes, technologies, and know-how, whether or not
patentable, copyrightable, or otherwise protected by law, conceived or made by
Consultant or others engaged to work on behalf of Company, individually or
jointly with others;
(4) Company's relations with its employees, including without
limitation, salaries, job classifications and skill levels;
(5) any other information designated by Company to be confidential,
secret and/or proprietary.
c. Such information is confidential regardless of whether it is merely
remembered, embodied in tangible form, developed in whole or part by Consultant,
or whether it is provided to Consultant. However, Proprietary Information does
not include information which has been made publicly available or otherwise
placed in the public domain by means that do not violate this Agreement or
similar agreements between Company and others.
d. Consultant agrees that at all times, Consultant will protect,
safeguard and keep secret the Proprietary Information; use Proprietary
Information only in connection with Consultant's work for Company; disclose
Proprietary Information only to those employees or agents of Company with a
"need to know" the same for use in connection with their duly authorized duties
as employees or agents of Company; and refrain from using Proprietary
Information for any purpose whatsoever, without proper authorization therefor.
-5-
e. Consultant agrees to refrain from using Proprietary Information for
Consultant's own benefit, or for the benefit of any third party, and will not
directly or indirectly disclose or reveal it, in any manner, to any person or
entity both during and after the termination of this Agreement. In particular,
Consultant will not use Proprietary Information to solicit, encourage or in any
way influence any of Company's customers to divert their business from Company.
18. Policy against Use of Trade Secrets of Others. In the course of
Consultant's employment for Company, Consultant will not utilize the trade
secrets of others (such as Consultant's prior employers) which Consultant has an
obligation to maintain as confidential. However, Consultant is not required to
maintain the confidentiality of any information which is:
a. known to Consultant prior to learning the information in connection
with work for a prior employer, or known to third parties knowledgeable in the
industry without Consultant's fault or negligence; or
b. furnished by a prior employer to a third party, or received by
Consultant without restrictions or obligations regarding secrecy or
confidentiality; or
c. independently developed by Consultant or Company without recourse to
the trade secret of another; or
d. approved for release by the owner of the trade secret information.
19. Non-Solicitation. Consultant specifically agrees that during the term
of this Agreement and for a period of one (1) year thereafter, Consultant will
not directly or indirectly, either for Consultant or for any other person,
company or other entity, solicit or encourage any person employed by or engaged
to render services on behalf of Company to leave Company or engage in any
activity contrary to Company's interests.
20. Products and Documents. Consultant hereby acknowledges and agrees that
the results of all services provided pursuant to this Agreement are the sole and
exclusive property of Company. Upon request or upon the termination of this
Agreement, Consultant shall promptly deliver to Company all notes, writings,
lists, files, reports, correspondence, tapes, cards, maps, machines, technical
data or any product or document (whether maintained in tangible documentary
form, or in computer memory or other electronic format) which Consultant or
Consultant's employees, agents or subcontractors produced or received while
performing services pursuant to this Agreement.
21. Injunctive Relief. Consultant acknowledges that violations of
paragraphs 17, 19 and 20 would cause irreparable injury to Company. Therefore,
Consultant agrees that in addition to any other remedies available, and without
being required to prove actual damages or being required to post any bond or
undertaking, Company shall be entitled to obtain an injunction to prevent any
actual or threatened use or disclosure of Proprietary Information, or to
otherwise enforce the provisions of this Agreement.
-6-
22. Compliance with Laws. In performing services under this Agreement,
Consultant promises to comply with all applicable federal, state, county and
city laws, ordinances and regulations.
23. Assignment/Subcontracting. This Agreement is assignable by Company upon
written notice to Consultant. However, since the services to be rendered by
Consultant are personal in nature, this Agreement may not be assigned by
Consultant without the written consent of Company. Consultant shall not utilize
Consultant's employees, agents, or subcontractors to perform services under this
Agreement without the express, written consent of Company.
24. No Authority to Bind Company. Consultant has no authority to enter into
contracts or agreements on behalf of Company, or to represent Company as an
agent or in any other capacity without the express written consent of the Chief
Executive Officer of Company.
25. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
26. Notices. All notices or other communications provided for in this
Agreement shall be made in writing and shall be deemed properly delivered when
(i) delivered personally or (ii) by the mailing of such notice by registered or
certified mail, postage prepaid, to the parties at the addresses set forth on
the signature page of this Agreement (or to such other address as one party
designates to the other in writing).
27. Reformation/Severability. If any provision of this Agreement is
declared invalid by any tribunal, then such provision shall be deemed
automatically adjusted to the minimum extent necessary to conform to the
requirements for validity as declared at such time and, so adjusted, shall be
deemed a provision of this Agreement as though originally included therein. In
the event the provision invalidated is of such a nature that it cannot be so
adjusted, the provision shall be deemed deleted from this Agreement as though
such provision had never been included. In either case, the remaining provisions
of this Agreement shall remain in effect.
28. Entire Agreement. This Agreement is the entire agreement between the
parties relating to the engagement of Consultant by Company. Except as
specifically incorporated herein, this Agreement supersedes and terminates all
prior agreements, whether oral or written, between Company and Consultant.
29. Amendments. No supplement, modification or amendment of any term,
provision or condition of this Agreement shall be binding or enforceable unless
evidenced in writing executed by the parties hereto.
[SIGNATURE PAGE FOLLOWS]
-7-
After carefully reading and considering the foregoing provisions of this
Agreement, Consultant and Company have voluntarily signed this Agreement to be
effective as of the date first above written.
Belvidere Networking Enterprises EMB Corporation
0000 Xx. Xxxxx Xxxxxx, Xxxxx 000 0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxx Xxx, XX 00000 Xxxxxxxxxx Xxxxx, XX 00000
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------- -------------------------------
Xxx Xxxxxxxxx Xxxxx X. Xxxxxxx
Vice President Chairman and CEO
-8-
