EXHIBIT 10.52
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT made as of June 1, 2001 (the "Effective Date")
BETWEEN: J. XXXX MUSTAD, an individual, of 000 Xxxx Xxxxx Xxxx, Xxx Xxxxxx,
Xxxxxxxxxx, X.X.X. 00000
("Mustad")
AND: E*COMNETRIX INC., a company duly formed under the Canada Business
Corporations Act, having its offices located at 000 Xxxxx Xxx, Xxx. 000 Xxxxxxx
Xxxxxxxxxx, X.X.X., 00000
("ECOM")
AND: MOVING BYTES BROADBAND CORPORATION, (formerly US Voice Telemanagement, Inc.
and USV Telemanagement, Inc.) a telecommunications services company duly formed
under the laws of the State of Nevada and the wholly owned subsidiary of ECOM,
having its offices located at 000 Xxxxx Xxx, Xxx. 000 Xxxxxxx Xxxxxxxxxx, X.X.X.
00000
("MBB");
ECOM and MBB are referred to herein jointly and severally as the
"Companies".
WITNESSES THAT WHEREAS:
A. Mustad and MBB entered into a consulting services agreement effective
as of January 1, 1996, as amended January 1, 1998, January 1, 2000,
and June 1, 2000 (the "Prior Agreement and Amendments");
B. Mustad and MBB wish to enter into this agreement (the "Agreement") to
replace the Prior Agreement and Amendments effective on the date first
above written;
C. Mustad and ECOM wish to enter into a finders fee arrangement effective
with the Agreement wherein ECOM will pay Mustad to solicit on behalf
of, and to represent to, ECOM, third parties (the "Sources") who may
provide to ECOM debt, debt equivalent, equity or equity equivalent
financing (the "Transaction").
NOW THEREFORE, in consideration of the recitals, the following agreements, the
payment of One Dollar ($1.00) made by each party to the other, and other good
and valuable consideration, the receipt and sufficiency of which is acknowledged
by each party, the parties agree as follows:
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ARTICLE ONE
SERVICES
Services
1.1 MBB SERVICES. Mustad will provide services to MBB as reasonably
requested by MBB which may include advice and counsel on the business
of MBB, on the general direction and management of MBB, on strategic
alliances for MBB, and on the identification of acquisition candidates
whom are in the business of MBB.
1.2 ECOM SERVICES. Mustad will assist ECOM in securing financing from
Sources whom are set forth on the attached Schedule A and addendum's
thereto.
1.3 TERM OF SERVICES. The term of this Agreement will commence on the
Effective Date and will be for a period of twenty one months ending on
February 28, 2003 (the "Contract Term"). Subject to Article IV hereof,
this Agreement will terminate effective February 28, 2003.
1.4 PERFORMANCE OF SERVICES.
(a) Mustad will perform the work and services for the Companies from
time to time in the United States of America and in such other places
as the Companies may require from time to time.
(b) The manner in which services are to be performed and the specific
hours to be worked by Mustad shall be determined by Mustad, provided
that Mustad shall work as many hours as may be reasonably necessary to
fulfill Mustad's obligations under this Agreement.
1.5 NON EXCLUSIVE SERVICES. Mustad's services shall not be exclusive to
the Companies.
1.6 NON COMPETE. During the term of this Agreement Mustad will not
participate in any activity which directly or indirectly competes with
the business of the MBB.
ARTICLE TWO
REMUNERATION
Compensation
2.1 COMPENSATION MBB.
(a) From the Effective Date through December 31, 2001, (the "First Stub
Period") in consideration for the services provided by Mustad, MBB will
pay Mustad Seven Thousand Five Hundred US dollars (US$7,500) per month,
as an employee, payable on the normal payroll schedule of MBB.
(b) From January 1, 2002 through the termination of the agreement (the
"Second Stub Period"), in consideration for the services provided by
Mustad, MBB will pay Mustad Six Thousand US dollars (US$6,000) per
month, as a consultant, payable on the first day of each month.
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2.2 COMPENSATION ECOM.
(a) ECOM agrees that, should ECOM complete a Transaction during the
Contract Term with Sources and if the Transaction is consummated then
ECOM will pay to Mustad compensation (the `Fee") as follows:
i) Five percent (5%) of the first Two Million US dollars ($2,000,000
US) in the cumulative value of Transactions; and
ii) Ten percent (10%) of any additional Transactions in excess of a
cumulative Two Million US Dollars ($2,000,000 US) in Transactions.
(b) If a Transaction includes an issue of common stock purchase
warrants (the `Warrants") then Fees thereon shall only be due and
payable to Mustad, i) upon the exercise of Warrants; and ii) if the
exercise occurs during the Contract Term or prior to the termination of
this Agreement as provided for in Article IV hereof, whichever should
occur first.
(c) All Fees hereunder shall be paid by ECOM in the form of cash.
(d) All Fees hereunder shall be paid to Mustad as when a Transaction
is consummated and when the financing is received.
(e) Notwithstanding any other provision contained herein, ECOM shall
have no obligation to accept or enter into a Transaction offered, and
ECOM shall have total and absolute discretion to reject any and all
Transactions proposed. In the event a proposed Transaction fails to
actually close for any reason whatsoever, Mustad shall not be entitled
to compensation or remuneration.
(f) This Section 2.2 relates solely to Mustad's efforts to procure a
Transaction from the Sources as set forth on Schedule A and addendum's
thereto and shall not apply to any other source of Transactions,
similar or dissimilar to those contemplated herein. Any agreement
between ECOM and Mustad with respect to any Transaction with a Source
other than as set forth in Schedule A and addendum's thereto, shall be
set forth in a written contract signed by duly authorized
representatives of ECOM and Mustad, and ECOM shall have no obligation
to provide any compensation or remuneration to Mustad with respect to
any Source, other than those set forth in Schedule A and addendum's
thereto, in the absence of a written agreement pertaining to such other
Sources.
2.3 OTHER EXPENSES.
(a) During the First Stub Period MBB shall pay for health insurance
coverage for Mustad and his dependants according to standard MBB policy
and as available though standard MBB providers.
(b) During the Second Stub Period, on the first day of each month, MBB
will pay directly to Mustad the sum of Four Hundred Fifty US dollars
(US$450) for health insurance reimbursement.
(c) Mustad will be reimbursed for all traveling and other out-of-pocket
expenses actually and properly incurred by Mustad in connection with
the duties hereunder. Mustad shall not incur travel and other
out-of-pocket expenses exceeding $1,000 per month without the express
permission of the Parties. For all such expenses Mustad will furnish to
the Parties statements and vouchers.
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ARTICLE THREE
MUSTAD'S COVENANTS
3.1 SERVICES. Subject to sections 1.3, 1.4 and 1.5, Mustad will devote his
time, attention and ability to the business of the Companies and will
well and faithfully serve the Companies and will use his best efforts
to promote the interests of the Companies.
3.2 DUTIES AND REPSONSIBLITLES. Mustad will duly and diligently perform
all the duties assigned to him while in the service of the Companies.
3.3 NON DISCLOSURE.
(a) For the purposes of this Agreement, "Confidential Information"
means information which is not generally known about processes used and
products sold and services provided by the Companies including, without
limitation, information relating to research, development, design,
manufacture, purchasing, accounting, engineering, marketing,
merchandising, distributing, selling and servicing.
(b) Mustad will not (either during the continuance of their service or
at any time thereafter) disclose any Confidential Information to any
person other than at the request of the Companies and for the
Companies' purposes and shall not (either during the continuation of
their service or at any time thereafter) use for his own purposes or
for any purposes other than those of the Companies any such
Confidential Information he may acquire in relation to the business of
the Companies.
ARTICLE FOUR
TERMINATION OF SERVICES
4.1 TERMINATION FOR CAUSE. MBB or ECOM may terminate this Agreement at any
time for cause (defined as culpable wrongdoing) without payment of any
compensation either by way of anticipated earnings or damages of any
kind.
4.2 TERMINATION BY MBB OR MUSTAD ON NOTICE. Mustad may terminate this
Agreement upon the giving of 30 days' notice in writing to MBB. In the
event Mustad terminates this Agreement pursuant to this Section 4.2
Mustad will not be entitled to further compensation hereunder following
such termination. Subject to Section 4.1 hereof, MBB may only terminate
this Agreement during the Contract Term upon paying to Mustad the full
balance of the fees due under Section 2.1 hereof which would have been
payable to Mustad had Mustad been engaged by MBB for the entire
Contract Term.
4.3 RETURN OF PROPERTY. Upon any termination of this Agreement, Mustad will
at once deliver or cause to be delivered to the Companies all books,
documents, effects, money, securities, records of Confidential
Information or copies thereof or other property belonging to the
Companies or for which the Companies are liable to others, which is in
the possession, charge, control or custody of Mustad.
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4.4 PROVISIONS WHICH OPERATE FOLLOWING TERMINATION. Notwithstanding any
termination of this Agreement for any reason whatsoever and with or
without cause, the provisions of sections 3.3 and 4.3 of this Agreement
and any other provisions of this Agreement necessary to give efficacy
thereto will continue in full force and effect following such
termination.
ARTICLE FIVE
GENERAL
5.1 SECTIONS AND HEADING. The division of this Agreement into Articles and
Sections and the insertion of headings are for the convenience of
reference only and will not affect the construction or interpretation
of this Agreement.
5.2 BENEFIT OF AGREMEENT. This Agreement will enure to the benefit of and
be binding upon the successors and permitted assigns of the Companies
and Mustad respectively and upon the heirs, executors, administrators
and legal personal representatives of Mustad. Mustad may not assign the
whole or any part of their rights hereunder without the prior written
consent of the Companies.
5.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
cancels and supersedes any prior understandings and agreements between
the parties. There are no representations, warranties, forms,
conditions, undertakings or collateral agreements, express, implied or
statutory between the parties other than as expressly set forth in this
Agreement.
5.4 AMENDMENTS AND WAIVERS. No amendment to this Agreement will be valid or
binding unless set forth in writing and duly executed by all of the
parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless made in writing and
signed by the party purporting to give the same and, unless otherwise
provided in the written waiver, will be limited to the specific breach
waived.
5.5 SEVERABILITY. If any provision of this Agreement is determined to be
invalid or unenforceable in whole or in part, such invalidity or
unenforceability will attach only to such provision or part thereof and
the remaining part of such provision and all other provisions hereof
will continue in full force and effect.
5.6 NOTICES. Any demand, notice or other communication (a "Notice") to be
given in connection with this Agreement will be given in writing and
may be given by personal delivery or by registered mail addressed to
the recipient as follows:
To Mustad: 000 Xxxx Xxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx, X.X.X. 00000
To the Board of Directors of ECOM: 000 Xxxxx Xxx., Xxx. 000
Xxxxxxx, Xxxxxxxxxx, XXX 00000
or such other address or individual as may be designated by notice by
either party to the other. Any Notice given by personal delivery will
be deemed to have been given on the day of actual delivery thereof and,
if made or given by registered mail, on the fifth day following the
deposit thereof in the mail.
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5.7 GOVERNING LAW. This Agreement shall be deemed to have been made and
executed in the State of California and shall be construed in
accordance with the laws of California under the jurisdiction of the
State of California and the laws of the United States applicable
therein.
5.8 DISPUTE RESOLUTION. Any dispute under this Agreement shall be submitted
to binding arbitration in San Rafael, California under the Rules of
Arbitration of the American Arbitration Association. If the parties can
agree on a single arbitrator, the arbitration will be conducted in
front of such arbitrator, but if they cannot, then each side will
appoint one arbitrator and those two arbitrators will in turn mutually
agree on a third arbitrator and the arbitration will be conducted in
front of a panel of such three arbitrators. Judgement on the
arbitration award by such arbitrator(s) may be entered in any court of
competent jurisdiction. Notwithstanding the foregoing, the parties may
apply to any court of competent jurisdiction for preliminary injunctive
relief pending the outcome of any such arbitration without breach of
this arbitration provision. Any costs of the arbitration proceedings
and associated attorneys' fees will be apportioned between the parties
in a manner prescribed by the arbitrator(s).
5.9 COUNTERPARTS. This Agreement may be executed in as many counterparts as
may be necessary or by facsimile and each such facsimile or counterpart
so executed will be deemed to be an original and such counterparts
together will constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the date
as set out on the first page of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
J. Xxxx Mustad
___________________________________
Moving Bytes Broadband Corporation
___________________________________
Xxxxxx Xxxxxx
President
E*Comnetrix Inc.
___________________________________
Xxxx X. Xxxxx
President
