EXHIBIT 10.4
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "AGREEMENT"), dated as of December 1, 2003, by
and among ARC Communications Inc., a New Jersey corporation ("ARC"), Alliance
Advisors ("ALLIANCE") and Roccus Capital Partners ("ROCCUS" together with
Alliance, the "CONSULTANTS").
W I T N E S S E T H:
WHEREAS, ARC desires to memorialize its engagement of Consultants to
provide certain consulting services upon the terms and conditions set forth
below and Consultants agree to provide such consulting services upon such terms
and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. CONSULTING SERVICES. ARC hereby engages Consultants to provide
consulting services to ARC relating to its on-going business operations,
acquisitions and divestitures, strategic operations and direction and capital
raising efforts on behalf of ARC, on the terms and subject to the conditions set
forth in this Agreement.
2. TERM. This Agreement shall be effective as of January 1, 2003 and shall
terminate on March 31, 2004. The period during which this Agreement shall be
effective as provided herein is referred to as the "CONSULTING TERM".
3. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. Each Consultant
represents and warrants to ARC that such Consultant is free to provide the
services described herein to ARC as contemplated herein and has no other written
or oral obligations or commitments of any kind or nature which would in any way
interfere with the services to be provided pursuant to the terms hereof or the
full performance of its obligations hereunder or the exercise of its best
efforts in its services hereunder or which would otherwise pose any conflict of
interest.
4. CONSULTING FEES. During the Consulting Term, the consulting fee to be
paid by ARC to the Consultants shall be paid in cash or by the delivery of
shares of common stock, par value $.001 per share, of ARC, to be determined by
the Consultants in their discretion. The aggregate monthly consulting fee shall
be $12,000.00 in cash or 133,333 shares of common stock valued at the end of
each such month. The consulting fee shall be divided between Alliance and Roccus
as follows: one-third of the consulting fee shall be paid to Alliance and
two-thirds of the consulting fee shall be paid to Roccus. On or before March 1,
2004, the Consultants shall determine whether the consulting fee for the period
through December 31, 2003 shall be paid in cash or stock. On or before April 15,
2004, the Consultants shall determine whether the consulting fee for the period
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from January 1, 2004 through March 31, 2004, shall be paid in cash or stock.
Each of Alliance and Roccus shall have the right to assign any shares of common
stock that it receives as consulting fee to principals of such entities. ARC
will use its commercially reasonable best efforts to cause any shares of common
stock that it pays as consulting fee to be registered on Form S-8.
5. CONFIDENTIALITY. Each Consultant agrees that in performing its duties
under this Agreement and by virtue of the relationship of trust and confidence
between such Consultant and ARC, such Consultant may obtain certain proprietary
knowledge of operations and products and other confidential information of ARC
which are of a special and unique nature and value to ARC. Each Consultant
covenants and agrees that it will not, at any time, whether during the term of
this Agreement or the two (2) year period following termination of this
Agreement, reveal, divulge or make known to any person or entity or use for its
own account or the account of others, any proprietary records, data, plans,
trade secrets, policies, strategies, methods or practices of obtaining or doing
business, computer programs, know-how or knowledge relating to customers, sales,
suppliers, market developments, equipment, processes, products or any other
confidential or proprietary information whatsoever of ARC (the "CONFIDENTIAL
INFORMATION"), whether or not obtained with knowledge and permission of ARC.
Each Consultant further covenants and agrees that such Consultant shall retain
all Confidential Information which it acquires or develops in trust for the sole
benefit of ARC and its successors and assigns. Each Consultant agrees to deliver
to ARC at the termination of this Agreement or at any other time ARC may
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request, all copies of memoranda, notes, plans, programs, lists, correspondence,
data, books, manuals, records, reports and other documents (and copies thereof)
relating to the business of ARC which such Consultant may possess or have under
its control. Each Consultant agrees that a remedy at law for any breach of the
covenants contained in this Section 5 would be inadequate and that the Company
shall be entitled to seek and obtain a temporary and permanent injunction or an
order for specific performance of such covenants without the necessity of
proving actual damage to ARC.
6. LAW APPLICABLE. This Agreement shall be governed by and construed
pursuant to the laws of the State of New York, without giving effect to
conflicts of laws principles.
7. NOTICES. Any notices required or permitted to be given pursuant to this
Agreement shall be sufficient, if in writing and sent by certified or registered
mail, return receipt requested, or overnight courier to the following addresses:
If to Alliance: Alliance Advisors
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Attn: CEO
If to Roccus: Roccus Capital Partners
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Attn: CEO
If to ARC: ARC Communications Inc.
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., CEO
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8. ASSIGNMENT, ETC. This Agreement may not be assigned by either party
without the prior written consent of the other party. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
permitted assignees and/or successors in interest.
9. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be carried out as if
such invalid or unenforceable provision were not contained herein.
10. INDEPENDENT CONTRACTOR. The parties agree that each Consultant is an
independent contractor for all purposes and neither Consultant shall hold itself
out as an agent, servant or employee of ARC. Each Consultant acknowledges and
agrees that ARC is not responsible for paying or withholding any taxes
associated with such Consultant's engagement hereunder and such Consultant shall
pay all taxes in accordance with applicable law. Nothing contained herein shall
be construed to create any relationship other than that of an independent
contracting relationship.
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11. NO WAIVER. A waiver of any breach or violation of any term, provision
or covenant contained herein shall not be deemed a continuing waiver or a waiver
of any future or past breach or violation.
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument and it shall not be necessary in making proof of this
agreement to account for all such counterparts.
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IN WITNESS WHEREOF, the undersigned have hereunto set their
hands to this Agreement on the day and year first above written.
ARC COMMUNICATIONS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chief Executive Officer
ALLIANCE ADVISORS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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ROCCUS CAPITAL PARTNERS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Managing Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Managing Member
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