Exhibit 10.26
CONSULTING AGREEMENT
This Consulting agreement (the "Agreement") is made and entered into
this 15th day of February, 1996, by and between Vamcom
Corporation, a New Jersey corporation (the "Consultant"), whose
principal place of business is 0 Xxxx Xxxxxx Xx., Xxxxxxxxxx, XX
00000-0000 and Vertex Industries Inc.(the "Client"), whose principal
place of business is 00 Xxxxx Xx., Xxxxxxx, XX 00000.
.
WHEREAS:
1. The Consultant is willing and capable of providing on a "best
efforts" basis various consulting and financial public relations
services for and on behalf of the client in connection with the
Client's interactions with broker-dealers, shareholders and members of
the general public.
2. The Client desires to retain the Consultant as an independent
consultant and the Consultant desires to be retained in that capacity
upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consulting Services. The client hereby retains the Consultant as
an independent to the client and the consultant hereby accepts and
agrees to such retention. The Consultant shall render to the client
such services of an advisory or consultative nature in order to inform
the brokerage community, the client's shareholders and the general
public concerning financial, public relations and promotional matters
relating to the client and its business. It is the intention of the
parties that the Consultant will gather all publicly available
information relating to the Client and confer with officers and
directors of the Client in an effort to consolidate the information
obtained into summary form for the dissemination to the interested
parties. It is intended that the Consultant will then distribute such
information concerning the Client to registered representatives of
broker-dealers and other persons who the Consultant determines are
capable of disseminating such information to the general public. The
Consultant will prepare and release a minimum of the following:
a) eight product/service press releases.
b) three quarterly and annual earnings press releases.
2. Time, Place and Manner of Performance. The Consultant shall be
available for advice and counsel to the officers and directors of the
Client at such reasonable and convenient times and places as may be
mutually agreed upon. Except as aforesaid, the time, place and manner
of performance of the services hereunder, including the amount of time
to be allocated by the
Consultant to any specific service, shall be determined in the sole
discretion of the Consultant. A monthly accounting of time spent in
the furtherance of this agreement shall be rendered to the client.
3. Term of Agreement. The term of this agreement shall be for one
year, commencing 15 February 1996 and terminating 14 February 1997.
4. Compensation. In consideration of the services to be provided
for the Client by the Consultant, the Client agrees to issue the
Consultant a registered stock option to purchase up to 20,000 shares
of the Client's common stock pursuant to the terms and conditions of a
stock option agreement, a copy of which is attached hereto and
incorporated herein as exhibit "A".
5. Expenses. The client shall reimburse the Consultant within 30
days of demand for all expenses and other disbursements, including but
not limited to travel, entertainment, mailing, printing, and postage,
incurred by the Consultant on behalf of the Client in connection with
the performance of the consulting services pursuant to this Agreement.
Expenses and disbursements in excess of $250.00, within any monthly
period, shall have the Client's prior approval.
6. Termination. Notwithstanding any provision contained in this
Agreement on the contrary, this Agreement may be terminated not prior
to May 21, 1996 (three months after the date of this Agreement) by
either party without cause upon thirty (30) days' prior written
notice.
7. Disclosure of Information.
(a) The Consultant recognizes and acknowledges that it has and
will have access to certain confidential information of the
client and its affiliates that are valuable, special and unique
assets and property of the Client and such affiliates. The
Consultant will not, during or after the term of this Agreement,
disclose, without the prior written consent or authorization of
the Client, as further set forth in Section 7(d) and (e) herein,
any of such confidential information.
(b) For purposes of this Agreement, the "Confidential
Information" of the Client means any and all information,
including without limitation, all oral, written, graphical, and
electronic information disclosed to the Consultant in accordance
with the following procedures: (a) if disclosed information is
written, recorded, graphical or otherwise in a tangible form, it
must be labeled as "proprietary" or "confidential", or with a
similar legend denoting confidentiality; and (b) if information
is disclosed orally, it must be identified as proprietary or
confidential at the time of its disclosure and subsequently
confirmed in writing within thirty (30) days of such disclosure.
All protections and restrictions as to use and disclosure will
apply during such thirty (30) day period. Oral discussions about
written or electronic information identified as "proprietary" or
"confidential" are Proprietary Information. Proprietary
Information includes all such information whether delivered to
the Consultant directly by the Client or indirectly through an
agent of the Client or Consultant.
(c) Reproduction: Confidential Information supplied is not to
be reproduced in any form except as required to accomplish the
intent of this Agreement.
(d) Duty of Care: All Confidential Information must be retained
by the Consultant in a secure place with access limited to only
such of the Consultant's employees (or agents who have a non-
disclosure obligation at least as restrictive as this Agreement)
who need to know such information for the purposes of this
Agreement and to such third parties as the Client has consented
to by prior written approval. In addition, the Consultant must
provide the same care to avoid disclosure or unauthorized use of
the Confidential Information as it provides to protect its own
similar Proprietary Information.
(e) Ownership: All Confidential Information, unless otherwise
specified in writing, (a) remains the property of the Client, and
(b) must be used by the Consultant only for the purpose intended.
Upon termination of this Agreement, all copies of written,
recorded, graphical or other tangible Proprietary Information
must either be returned to the Consultant, or destroyed (i) after
the Consultant's need for it has expired, or (ii) upon the
request of the Client. At the request of the Client, the
Consultant will furnish a certificate of an officer of the
Consultant certifying that any Proprietary Information not
returned to Client has been destroyed.
(f) Right to Enjoin Disclosure: The parties acknowledge that
the Consultant's unauthorized disclosure or use of Proprietary
Information may result in irreparable harm. Therefore, the
parties agree that, in the event of violation or threatened
violation of this Agreement, without limiting any other rights
and remedies of each other to seek actual damages, a temporary
restraining order and/or an injunction to enjoin disclosure of
Proprietary Information may be sought against the party who has
breached or threatened to breach this Agreement will not raise
the defense of an adequate remedy at law.
8. Nature of Relationship. It is understood and acknowledged by the
parties that the Consultant is being retained by the Client in an
independent capacity and that in this connection, the Consultant
thereby agrees, except as provided in paragraph 4, herein above or
unless the Client shall have otherwise consented in writing, not to
enter into any agreement or incur any obligation on behalf of the
Client.
9. Conflict of Interest. The Consultant shall be free to perform
services for other persons. The Consultant will notify the Client of
its performance of consulting services for any other person which
could conflict with its obligation under this Agreement. Upon
receiving such notice, the Client may terminate this Agreement or
consent to the Consultant's outside consulting activities; failure to
terminate this Agreement within 30 days of this agreement, shall
constitute the Client's ongoing consent to the Consultant's outside
consulting activities.
10. Indemnification for Securities Law Violations. The Client agrees
to indemnify and hold harmless the consultant and each officer,
director and controlling person of the Consultant against any losses,
claims, damages, liabilities and/or expenses (including any legal or
other expenses reasonably incurred in investigating or defending any
action or claim in respect thereof) to which the Consultant or such
officer, director or controlling person may become subject under the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, because of actions of the Client or its agent(s).
11. Notices. Any notices required or permitted to be given under
this Agreement shall be sufficient in writing and delivered or sent by
registered or certified mail to the principal office of each party.
12. Waiver of Branch. Any waiver by the Client or Consultant of a
breach of any provision of this Agreement by the Client or Consultant,
as the case may be, shall not operate or be construed as a waiver of
any subsequent breach by the Client or the Consultant.
13. Assignment. This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding
upon their successors and assigns.
14. Applicable Law and Jurisdiction. It is the intention of the
parties hereto that this Agreement and the performance hereunder and
all suits and special proceedings hereunder be construed in accordance
with and under and pursuant to the laws of the State of New Jersey and
that in any action, special proceeding or other proceeding that may be
brought arising out of, in connection with or by reason of this
Agreement, the laws of the State of New Jersey shall be applicable and
shall govern to the exclusion of the law of any other forum. The State
of New Jersey shall have exclusive jurisdiction over all such suits,
actions, or special proceedings.
15. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by
any competent court, the Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
16. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and
replaces all prior understandings, agreements and negotiations between
the parties.
17. Waiver and Modification. Any waiver, alteration or modification
of any of the provisions of this Agreement shall be valid only if made
in writing and signed by the parties hereto. Each party hereto, from
time to time, may waive any of its rights hereunder without effecting
a waiver with respect to any subsequent occurrences or transactions
hereof.
18. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but both of which taken
together shall constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
CONSULTANT: CLIENT:
Vertex Industries, Inc. Vamcom Corporation
By: s/Xxxxxx X. Xxxx By: s/Xxxx X. Xxxxx
President President
EXHIBIT A
STOCK OPTION AGREEMENT
AGREEMENT, made this 15th day of February, 1996, by and between
Vertex Industries, Inc. a New Jersey corporation (hereinafter referred
to as the "Company"), and Vamcom Corporation (hereinafter referred
to as the "Optionee").
WITNESSETH:
WHEREAS, pursuant to the resolution adopted by the Board of
Directors of the Company, the Company has authorized the granting to
Optionee of a stock option to purchase authorized but unissued shares
of common stock of the Company for cash at the prices per share
hereinafter set forth, such option to be for the term and upon the
terms and conditions hereinafter stated;
NOW THEREFORE, in consideration of the promises, the mutual
covenants herein contained and other good and valuable consideration,
the parties hereto hereby agree as follows:
1. Option. The Company hereby grants to Optionee the right and
option (hereinafter referred to as the "Option") to purchase all or
any part of an aggregate of 20,000 shares of registered common stock
of the Company (hereinafter referred to as the "shares covered by the
Option") on the terms and conditions herein set forth.
2. Purchase Price. The purchase price of the shares covered
by the option shall be $0.91 which the closing bid price of the common
stock of the Company on the date of the signing of this agreement:
which purchase price shall be payable in full, in cash, upon exercise
of the option in accordance with the terms and conditions herein
provided.
3. Term. The term of the Option shall commence on 15
February, 1996 and shall expire sixty months from such date on 14
February, 2001.
4. Exercise. The Option shall be exercisable in whole or in
part at any time and from time to time during the term of the Option
by written notice delivered to the Secretary of the Company its
offices at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000. The notice
shall state the number of shares with respect to which the Option is
being exercised, shall be signed by the Optionee and shall be
accompanied by payment. The Option shall not be exercised at any time
when its exercise or the delivery of the shares referred to in the
notice would be a violation of any law, governmental regulation or
ruling. The Option shall be exercisable only by the Optionee.
5. Securities to be Registered. Both the Option and the shares
covered by the Option shall be "registered securities" as defined for
the General Rules and Regulations under the Securities Act of 1933
(the "Act").
6. Assignment and Transfer. The option and the rights and
obligations of the parties hereunder shall inure to the benefit of and
shall be binding upon their successors and assigns.
7. Optionee as Shareholder. Optionee shall have all rights as a
shareholder with respect to the shares covered by the option on and
subsequent to the date of the issuance of a stock certificate or stock
certificates to it. Adjustment will be made for dividends or other
rights with respect to which the record date is on or subsequent to
the date such stock certificates is issued.
8. Adjustment for Changes in Capital Structure. In the event of a
change in the capital structure of the Company as a result of any
stock dividend, stock split, combination or reclassification of
shares, re capitalization, merger, consolidation or reorganization,
the number of shares covered by the option shall be appropriately
adjusted by the Board of Directors, whose determination shall be
final.
9. Notices. All notices required or permitted to be given under
this Agreement shall be sufficient if in writing and delivered or sent
by registered or certified mail to the principal office of each party.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties have executed this instrument on
the day and year first above written.
s/Xxxxxxx X. Xxxxxxxxx Attest: s/Xxxx X. Xxxxxxx
Secretary
s/Xxxxxx X. Xxxx
President
