EXHIBIT 10.1
CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated November 19, 2001 and is entered into
by and between DIMENSIONAL VISIONS INCORPORATED. A DELAWARE CORPORATION
(hereinafter "DVUI" or "Client") and XXXX XXXXXXXXXX, XXXXXXX XXXXXX AND XXXXXXX
XXXXXXX, INDIVIDUALS (hereinafter collectively "Consultants").
1. CONDITIONS. This Agreement will not take effect, and Consultants will
have no obligation to provide any service whatsoever, unless and until
Client returns a signed copy of this Agreement to Consultants (either
by mail or facsimile copy). In addition, Client shall be truthful with
Consultants in regard to any relevant or material information provided
by Client, verbally or otherwise which refers, relates, or otherwise
pertains to the Client's business, this Agreement or any other
relevant transaction. Breach of either of these conditions shall be
considered a material breach and will automatically grant Consultants
the right to terminate this Agreement and all moneys, and other forms
of compensation, paid or owing as of the date of termination by
Consultants shall be forfeited without further notice.
Upon execution of this Agreement, Client agrees to fully cooperate
with Consultants in carrying out the purposes of this Agreement, keep
Consultants informed of any developments of importance pertaining to
Client's business and abide by this Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, Consultants will
perform the following services for Client:
2.1 ADVICE AND COUNSEL. Consultants will provide advice and counsel
regarding Client's strategic business plans, strategy and negotiations
with potential business strategic partnering, corporate planning and
or other general business consulting needs as expressed by Client.
2.2 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE.
Consultants will participate and assist Client in the due diligence
process, where possible, on all proposed business transactions
affecting Client of which Consultants is notified in writing in
advance, including conducting investigation of and providing advice on
the business and financial implications of the proposed
transaction(s).
2.3 ADDITIONAL DUTIES. Client and Consultants shall mutually agree, in
writing, for any additional duties that Consultants may provide to
Client for compensation paid or payable by Client under this
Agreement. Although there is no requirement to do so, such additional
agreement(s) may be attached hereto and made a part hereof by written
amendments to be listed as "Exhibits" beginning with "Exhibit A" and
initialed by both parties.
2.4 STANDARD OF PERFORMANCE. Consultants shall devote such time and
efforts to the affairs of the Client as is reasonably necessary to
render the services contemplated by this Agreement. Any work or task
of Consultants provided for herein which requires Client to provide
certain information to assist Consultants in completion of the work
shall be excused (without effect upon any obligation of Client) until
such time as Client has fully provided all information and cooperation
necessary for Consultants to complete the work. The services of
Consultants shall not include the rendering of any legal opinions or
the performance of any work that is in the ordinary purview of a
certified public accountant, or other licensed professional.
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Consultants cannot guarantee results on behalf of Client, but shall
use commercially reasonable efforts in providing the services listed
above. If an interest is communicated to Consultants regarding
satisfying all or part of Client's business and corporate strategic
planning needs, Consultants shall notify Client and advise it as to
the source of such interest and any terms and conditions of such
interest.
3. COMPENSATION TO CONSULTANTS.
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration for
Consultants entering into this Agreement, Client agrees to cause
2,250,000 shares of its common stock, par value $.001 per share, to be
immediately issued in amounts of 750,000 shares to Xxxx Xxxxxxxxxx,
750,000 shares to Xxxxxxx Xxxxxx and 750,000 shares to Xxxxxxx
Xxxxxxx. In addition, Client shall cause 3,270,000 shares of its
common stock to be issued sixty days (60) from the date of this
Agreement in amounts of 1,090,000 shares to Xxxx Xxxxxxxxxx, 1,090,000
shares to Xxxxxxx Xxxxxx and 1,090,000 shares to Xxxxxxx Xxxxxxx. In
addition, Client shall cause 3,270,000 shares of its common stock to
be issued ninety days (90) from the date of this Agreement in amounts
of 1,090,000 shares to Xxxx Xxxxxxxxxx, 1,090,000 shares to Xxxxxxx
Xxxxxx and 1,090,000 shares to Xxxxxxx Xxxxxxx. When issued, said
shares shall be free trading shares, registered with the U.S.
Securities and Exchange Commission on its Form S-8 or similar
registration. The registration and issuance of said shares shall take
place by no later than 15 days following the execution and delivery of
this Agreement, and all costs in connection therewith shall be borne
by Client.
NOTE: CONSULTANTS SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED
FOR HEREIN IF PAYMENT IS NOT RECEIVED BY CONSULTANTS WITHIN 15 DAYS OF
MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION,
CONSULTANTS'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF
ANY PAYMENT OWING HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT.
FURTHERMORE, THE RECEIPT OF ANY FEES DUE TO CONSULTANTS UPON EXECUTION
OF THIS AGREEMENT ARE NOT CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY
DUTIES WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 EXPENSES. Client shall reimburse Consultants for reasonable expenses
incurred in performing its duties pursuant to this Agreement
(including printing, postage, express mail, photo reproduction,
travel, lodging, and long distance telephone and facsimile charges);
provided, however, that Consultants must receive prior written
approval from Client for any expenses over $ 500. Such reimbursement
shall be payable within seven days after Client's receipt of
Consultants invoice for same.
3.3 ADDITIONAL FEES. Client and Consultants shall mutually agree upon any
additional fees that Client may pay in the future for services
rendered by Consultants under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be
attached hereto and made a part hereof as Exhibits beginning with
Exhibit A.
4. INDEMNIFICATION. The Client agrees to indemnify and hold harmless
Consultants, each of their employees, agents, affiliates, other
licensees, and shareholders against any and all liability, loss and
costs, expenses or damages, including but not limited to, any and all
expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever or howsoever caused by reason of any injury (whether
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to body, property, personal or business character or reputation)
sustained by any person or to any person or property, arising out of
any act, failure to act, neglect, any untrue or alleged untrue
statement of a material fact or failure to state a material fact which
thereby makes a statement false or misleading, or any breach of any
material representation, warranty or covenant by Client or any of its
agents, employees, or other representatives. Consultants agrees to
indemnify and hold harmless the Client, each of its officers,
directors, employees, agents, and shareholders against any and all
liability, loss and costs, expenses or damages, including but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or howsoever caused
by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any
person or property, arising out of any act, failure to act, neglect,
any untrue or alleged untrue statement of a material fact or failure
to state a material fact which thereby makes a statement false or
misleading, or any breach of any material representation, warranty or
covenant by Consultants or any of its agents, employees, or other
representatives. Nothing herein is intended to nor shall it relieve
either party from liability for its own willful act, omission or
negligence. All remedies provided by law, or in equity shall be
cumulative and not in the alternative.
5. CONFIDENTIALITY.
5.1 Consultants and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests.
Consultants and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to the
information through Consultants and Client respectively, to first
enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
5.2 Consultants will not, either during their engagement by the Client
pursuant to this Agreement or at any time thereafter, disclose, use or
make known for their or another's benefit any confidential
information, knowledge, or data of the Client or any of its affiliates
in any way acquired or used by Consultants during its engagement by
the Client. Confidential information, knowledge or data of the Client
and its affiliates shall not include any information that is, or
becomes generally available to the public other than as a result of a
disclosure by Consultants or its representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
and supplemented only by written agreement of Consultants and Client.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either
party hereunder cannot be assigned without the express written consent
of the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with
the laws of the State of California, without regard to its conflict of
law doctrine. Client and Consultants agree that if any action is
instituted to enforce or interpret any provision of this Agreement,
the jurisdiction and venue shall be Irvine, Orange County, California.
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6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and costs, in addition to
any other relief to which that party may be entitled. This provision
shall be construed as applicable to the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid or unenforceable, that
part shall be severable from the remainder of the Agreement.
6.6 COUNTERPARTS. This Agreement may be executed in several counterparts
and it shall not be necessary for each party to execute each of such
counterparts, but when all of the parties have executed and delivered
one of such counterparts, the counterparts, when taken together, shall
be deemed to constitute one and the same instrument, enforceable
against each party in accordance with its terms.
6.7 FACSIMILE SIGNATURES. The Parties hereto agree that this Agreement may
be executed by facsimile signatures and such signatures shall be
deemed originals. The parties further agree that within ten days
following the execution of this Agreement, they shall exchange
original signature pages.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN
CLIENT, Consultants OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL
REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY
CUSTOMER OR OTHER PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH
OR AS A RESULT OF THIS AGREEMENT, SHALL BE RESOLVED THROUGH
ARBITRATION RATHER THAN THROUGH LITIGATION. WITH RESPECT TO THE
ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY ACKNOWLEDGE AND
AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO
SEEK MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY
LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE
ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY
PARTY;
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F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO
THE AMERICAN ARBITRATION ASSOCIATION, IN IRVINE, ORANGE COUNTY,
CALIFORNIA WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST
TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL
TAKE PLACE IN IRVINE, ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT
TO RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING
ARBITRATION OR SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF
ANY ARBITRATION FORUM LOCATED IN IRVINE, ORANGE COUNTY,
CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM
THE LOSING PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES
INCURRED IN CONNECTION WITH THE DEFENSE OF SUCH LEGAL PROCEEDING
OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO ARBITRATION AS PROVIDED
FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL
AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT
AND EXECUTION FOR COLLECTION; AND
L. ANY ARBITRATION PROCEEDING PURSUANT TO THIS SECTION SHALL BE HELD
BEFORE A PANEL OF THREE ARBITRATORS.
8. TERM/TERMINATION. This Agreement is an agreement for the term of
approximately twelve (12) months ending November 18, 2002. Either
party may terminate this Agreement immediately upon notice to the
other party for cause. For purposes of this Agreement, the term
"cause" shall include, but not be limited to, the following: a
material breach of or failure to perform any covenant or obligation in
this Agreement, disloyalty, dishonesty, neglect of duties,
unprofessional conduct, acts of moral turpitude, disappearance,
felonious conduct, or fraud. If this Agreement is terminated for
cause, a pro rata portion of compensation delivered by either party to
the other shall be returned based upon the amount of time remaining in
the term.
9. NON CIRCUMVENTION. In and for valuable consideration, Client hereby
agrees that Consultants may introduce (whether by written, oral, data,
or other form of communication) Client to one or more opportunities,
including, without limitation, natural persons, corporations, limited
liability companies, partnerships, unincorporated businesses, sole
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proprietorships and similar entities (hereinafter an "Opportunity" or
"Opportunities"). Client further acknowledges and agrees that the
identity of the subject Opportunities, and all other information
concerning an Opportunity (including without limitation, all mailing
information, phone and fax numbers, email addresses and other contact
information) introduced hereunder are the property of Consultants, and
shall be treated as confidential and proprietary information by
Client, it affiliates, officers, directors, shareholders, employees,
agents, representatives, successors and assigns. Client shall not use
such information, except in the context of any arrangement with
Consultants in which Consultants is directly and actively involved,
and never without Consultants' prior written approval. Client further
agrees that neither it nor its employees, affiliates or assigns, shall
enter into, or otherwise arrange (either for it/him/herself, or any
other person or entity) any business relationship, contact any person
regarding such Opportunity, either directly or indirectly, or any of
its affiliates, or accept any compensation or advantage in relation to
such Opportunity except as directly though Consultants, without the
prior written approval of Consultants. Consultants are relying on
Client's assent to these terms and their intent to be bound by the
terms by evidence of their signature. Without Client's signed assent
to these terms, Consultants would not introduce any Opportunity or
disclose any confidential information to Client as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
DIMENSIONAL VISIONS INCORPORATED (DVUI)
Print Name: Xxxx X. XxXxxxxxx
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Sign Name: /s/ Xxxx X. XxXxxxxxx
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Title: Chairman and C.E.O.
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Date: 11/19/2001
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Address: 0000 X. Xxxxxx Xxx. X-000 Xxxxxxx XX 00000
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CONSULTANTS
Print Name: Xxxx Xxxxxxxxxx
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Sign Name: /s/ Xxxx Xxxxxxxxxx
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Date: 11/20/01
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Print Name: Xxxxxxx X. Xxxxxx
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Sign Name: /s/ Xxxxxxx X. Xxxxxx
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Date: 11/20/01
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Print Name: Xxxxxxx Xxxxxxx
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Sign Name: /s/ Xxxxxxx Xxxxxxx
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Date: 11/20/01
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