CONSULTING AGREEMENT
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This Agreement is entered into and is effective this 31st day of October,
1999 by and between Urban Cool Network, Inc, a New York corporation, having its
principal place of business at 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000 (the
"Company"), and Seabreeze Associates, Inc., a New York corporation, having its
principal place of business at 00-00 Xxxxxxx Xxxx., Xxxxxxxxxx, X.X. 00000.
WHEREAS, the Company desires to retain Consultant to provide services to
the Company.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do covenant and agree, as
follows:
1. Retention. The Company hereby retains Consultant to render certain
advisory services (the "Services") with regard to corporate development and
mergers and acquisitions and such other related activities as the Board of
Directors of the Company may from time to time direct, and consulting with the
Board of Directors from time to time as requested by the Company. Consultant
agrees to use its best efforts to supply the Services in a professional and
diligent manner.
2. Term. The Term of this Agreement shall be twenty-four (24) months from
the date hereof, but within the 24-month period, the Company may, without cause,
elect to terminate the Agreement by giving thirty (30) days' written notice.
Upon such termination, Consultant shall be relieved of any further obligation of
performance to the Company; provided, however, that all obligations of
confidentiality, non-disclosure and non-competition will continue in full force
and effect for one (1) year from the effective date of any termination. If this
agreement shall be terminated prior to the end of the Term, the Consultant shall
not, in any event, be liable to return any pre-payment. The parties hereby agree
that any pre-payment made to Consultant shall be fully earned by Consultant at
the time such pre-payment is made and shall be in consideration of Consultant's
agreement to expend time, effort and energy on behalf of Company to the
exclusion of other clients.
3. Compensation. The Company acknowledges that it does not currently have
the financial ability to pay for Consultant's Services in cash. Therefore, the
Company shall, in consideration of Services to be performed, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Company, concurrently with the execution hereof, pay to the
Consultant a total of 175,000 shares of the common stock (the "Shares") of the
Company. Seventy-Five Thousand Shares shall be registered with the Securities
and Exchange Commission and shall be unrestricted and freely tradable with the
remaining 100,000 shares subject to Rule 144.
4. Consultant's Non-Disclosure of Information/Non-Competition.
a. The Consultant acknowledges that in the course of its engagement it
may
become familiar with trade secrets and other confidential information
(collectively, "Confidential Information" ) concerning the Company and
Consultant shall hold in a fiduciary capacity for the benefit of the Company all
secret, confidential proprietary information, knowledge or data relating to the
Company that shall have been obtained by the Consultant during its engagement by
the Company and that shall have not been or now or hereafter have become public
knowledge (other than by acts by the Consultant or its representatives in
violation of this Agreement). Consultant agrees that it shall not disclose to
any third party any Confidential Information for any purpose other than the
performance of its duties under this Agreement. During the Term and at all times
thereafter, regardless of the reason for the termination of this Agreement,
Consultant shall not, without the prior written consent of the Company or as
otherwise may be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by the Company.
b. Upon completion of the Term or earlier termination of this Agreement
for any reason, Consultant will return to the Company any confidential materials
or information which the Company may have supplied to the Consultant. Consultant
may retain a copy of such materials or information for Consultant's own due
diligence file. However, Consultant hereby agrees not to distribute or release
such confidential materials or information without giving the Company at least
five (5) days' written notice so that Company shall have the opportunity, at
Company's sole cost and expense, to move to prevent Consultant's distribution or
release of the confidential material or information.
c. Subject to the limitations set forth herein, Consultant agrees that
during the Term and for a period of one year thereafter it shall not directly or
indirectly, own, manage, control, participate in, consult with, render services
for, or in any manner engage in any business competing with the business of the
Company as such business exists within any geographical area in which the
Company conducts its business. In addition, Consultant shall not solicit,
interfere with or conduct business with any vendors, customers or employees of
the Company during the term of this Agreement or for a period of one year after
the termination hereof. In the event the Company breaches any of its duties or
obligations under this Agreement, the Company agrees that Consultant shall not
be bound by the provisions of this Agreement, except for the provisions
concerning Confidential Information.
5. Arbitration. Any dispute, controversy or claim between the Company and
the Consultant arising out of or related to this Agreement shall be conducted
solely in a proceeding held in accordance with the rules of the American
Arbitration Association then in effect. This Agreement, or breach thereof, shall
be settled by arbitration, and any award shall be binding and conclusive for all
purposes thereof, may include injunctive relief (but only as ordered by a Court
of competent jurisdiction), as well as orders for specific performance and may
be entered as a final judgment in any court of competent jurisdiction. No
arbitration arising out of or relating to this Agreement shall include, by
consolidation or joinder or in any other manner, parties other than the Company
and the Consultant and other persons substantially involved in common question
of fact or law whose presence is required if complete relief is to be afforded
in arbitration. The cost and expenses of such
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arbitration shall be borne in accordance with the determination of the
arbitrator and may include reasonable attorney's fees, provided, however, that
if either party shall commence any action or proceeding against the other in
order to enforce the provisions hereof, or to recover damages resulting from the
alleged breach of any of the provisions hereof, the prevailing party therein
shall be entitled to recover all reasonable costs incurred in connection
therewith, including, but not limited to, reasonable attorneys' fees. Each party
hereby further agrees that service of process may be made upon it by registered
or certified mail, express delivery or personal service at the address provided
for herein.
6. Remedies. In the event of the actual or threatened breach of the
provisions of this Agreement by a party, the other party shall have the right to
obtain injunctive relief and/or specific performance and to seek any other
remedy available to it.
7. Law, Venue, Jurisdiction. This agreement and all matters and issued
collateral thereto shall be governed by the laws and the courts of the State of
New York without regard to the principles of conflicts of laws.
8. Severability. If any provision of this Agreement becomes or is found to
be illegal or unenforceable for any reason, such clause or provision must first
be modified to the extent necessary to make this Agreement legal and enforceable
and then if necessary, second, severed from the remainder of the Agreement to
allow the remainder of the Agreement to remain in full force and effect.
9. Counterparts. This Agreement may be executed in several
counterparts, and all of such counterparts taken together shall be deemed to
be one Agreement.
10. Attorneys' Fees. If either party shall commence any action or
proceeding against the other in order to enforce the provisions hereof, or to
recover damages resulting from the alleged breach of any of the provisions
hereof, the prevailing party therein shall be entitled to recover all reasonable
costs incurred in connection therewith, including, but not limited to,
reasonable attorneys' fees.
11. Waiver of Breach. The waiver by any party of a breach of any provision
of this Agreement shall not operate be construed as a waiver of any subsequent
breach by any party.
12. Notices. Each notice, demand, request, approval or communication
("Notice") which is or may be required to be given by any party to any other
party in connection with this Agreement and the transactions contemplated
hereby, shall be in writing, and given by personal delivery, certified mail,
return receipt requested, prepaid, or by overnight express mail delivery and
properly addressed to the party to be served at such address as set forth above.
Notices shall be effective on the date delivered personally, the next day if
delivered by overnight express mail or three days after the date mailed by
certified mail.
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13. Entire Agreement. This Agreement contains the entire agreement between
Consultant and Company, and correctly sets forth the rights and duties of each
of the parties to each other concerning such matter as of this date. Any
agreement or representation concerning the subject matter of this Agreement or
the duties of Consultant in relation to Company not set forth in this Agreement
is null and void.
14. Binding Effect. The rights created by this Agreement shall inure to
the benefit of, and the obligations created hereby shall be binding upon the
parties, their heirs, successors, assigns and personal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first hereinabove written.
URBAN COOL NETWORK, INC.
By: /s/ Xxxxx X. Xxxxx, III
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Name:Xxxxx X. Xxxxx, III
Title: CEO
SEABREEZE ASSOCIATES, INC.
By: Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President
