ADVISORY SERVICES AGREEMENT - Piter Korompis
Exhibit
10.1
This
Advisory Services Agreement (the “Services Agreement”) is made and entered into
September 24, 2007 (the “Effective Date ”), by and between (i) Piter
Korompis, whose principal business address is an individual c/o Austindo Foods,
Pty, Xxxxx 0, 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx (the
“Consultant”) and (ii) VoIP, Inc., a Texas corporation, whose principal place of
business is 151 South Xxxxxx Road, Suite 3000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
(the “Company”). Consultant and Company may hereinafter be referred to
individually as a “party” or collectively as the “parties.”
WHEREAS,
the
Company requires the Services as defined and set forth herein;
WHEREAS,
Consultant is qualified to provide the Company with the Services and is desirous
to perform such Services for the Company; and
WHEREAS,
the
Company wishes to induce Consultant to provide the Services and wishes to
contract with the Consultant regarding the same and compensate Consultant in
accordance with the terms herein;
NOW,
THEREFORE,
in
consideration of the mutual covenants contained in this Services Agreement,
and
for good and valuable consideration, the receipt of which is hereby
acknowledged, it is agreed as follows:
1. APPOINTMENT.
The
Company hereby engages Consultant and Consultant agrees to render the Services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
The
term
of this Services Agreement shall begin as of the date of this Services
Agreement, and shall terminate 120 days thereafter, or earlier in accordance
with Section 9.
3. SERVICES.
During
the term of this Services Agreement, Consultant shall provide the Company with
the following “Services.” However, the Services shall be limited to making
recommendations and offering advice to the Company's Officers, Directors and
other key Company personnel. As an offsite advisor, Consultant will rely upon
the Company's management to, in the Company's sole discretion, accept or reject
its recommendations. Under no circumstances, even in the event that Consultant
is to perform onsite analysis, shall Consultant be responsible for making any
decisions on behalf of the Company.
a. Advise
internal management, with particular focus on strategic planning, organizational
and corporate structure, and overall business analysis with the ultimate goal
of
preparing the company for capital market investor due diligence;
b. General
corporate advice including but not limited to strategic planning, management
advisory services, business development, and other consulting or advisory
services which the Company reasonably requests that the Consultant provide
to
the Company.
c. Consultant
agrees to provide the Services on a timely basis via: meetings with Company
representatives which may include other professionals; conferences calls with
Company representatives and other professionals; and/or written correspondence
and documentation. Consultant cannot guarantee the results on behalf of the
Company, but shall pursue all avenues that it deems reasonable through its
network of contacts.
d. It
is
further agreed that the Consultant will not engage in capital raising or stock
promotion activities on behalf of the Company during the term of the Services
Agreement.
4. COMPENSATION. In
connection with this Services Agreement, The Company shall pay Consultant the
following fees:
a. Cash.
(i)
Within five days of the effectiveness of this Services Agreement (the “Payment
Date”) the Company shall pay Consultant a cash fee equal to
$490,000.00.
b. Options.
By or
before the Payment Date, Consultant shall be granted an option to purchase
700,000 of the Company’s common shares (the “Option Shares”) for $1.20 per
share. The Option Shares shall be registered in an appropriate registration
statement, and shall be delivered free of any restrictive legend.
All
compensation delivered and paid to Consultant pursuant to this Services
Agreement shall be deemed completely earned, due, payable and non-assessable
as
of the date the compensation is tendered to Consultant by the Company or the
Company's transfer agent. Once compensation is tendered to Consultant, there
shall be no refunds or diminishment of the same regardless of any
event.
5. REPRESENTATIONS
AND WARRANTIES OF COMPANY.
The
Company hereby represents, warrants and agrees as follows:
a. This
Services Agreement has been authorized, executed and delivered by the Company
and, when executed by the Consultant will constitute the valid and binding
agreement of the Company enforceable against the Company in accordance with
its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
or
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
b. The
Company is validly organized, existing and with active status under the laws
the
State of Texas.
c. The
securities to be issued to Consultant, if any, have all been authorized for
issuance and when issued, delivered and tendered to the Consultant by the
Company will be validly issued, fully paid and non-assessable.
6. STATUS
OF WORK PRODUCT AND OTHER PROPERTY.
Upon
expiration of this Agreement and/or termination of this Services Agreement
(or
at any time upon request by the Company), Consultant will immediately return
to
the Company all Company property (including but not limited to all documents,
electronic files/records, keys, records, computer disks, or other tangible
or
intangible things that may or may not relate to or otherwise constitute
confidential information or trade secrets (as defined by applicable law) that
Consultant created, used, possessed, or maintained while in the employ of the
Company, from whatever source. This provision does not apply to purely personal
documents of Consultant, but does apply to business calendars, Rolodexes,
customer lists, contact sheets, computer programs, disks, and their contents,
and like information that may contain some personal matters of
Consultant.
7. INDEMNIFICATION.
(a) The
Company agrees to indemnify the Consultant and hold it harmless against any
losses, claims, damages or liabilities incurred by the Consultant, in connection
with, or relating in any manner, directly or indirectly, to the Consultant
rendering the Services in accordance with the Services Agreement, unless it
is
determined by a court of competent jurisdiction that such losses, claims,
damages or liabilities arose out of the Consultant's breach of this Services
Agreement, sole negligence, gross negligence, willful misconduct, dishonesty,
fraud or violation of any applicable law. Additionally, the Company agrees
to
reimburse the Consultant immediately for any and all expenses, including,
without limitation, attorney fees, incurred by the Consultant in connection
with
investigating, preparing to defend or defending, or otherwise being involved
in,
any lawsuits, claims or other proceedings arising out of or in connection with
or relating in any manner, directly or indirectly, to the rendering of any
Services by the Consultant in accordance with the Services Agreement (as
defendant, nonparty, or in any other capacity other than as a plaintiff,
including, without limitation, as a party in an interpleader action). The
Company further agrees that the indemnification and reimbursement commitments
set forth in this paragraph shall extend to any controlling person, strategic
alliance, partner, member, shareholder, director, officer, employee, agent
or
subcontractor of the Consultant and their heirs, legal representatives,
successors and assigns. The provisions set forth in this Section shall survive
any termination of this Services Agreement.
(b)
Consultant
agree to indemnify, hold harmless and defend the Company, its directors,
officers, and affiliates (each an “Indemnified Party”) from and against any and
all claims, suits, judgments, fines, cost, damages, demands, actions, expenses
or liabilities of any nature which are threatened or brought against any
Indemnified Party by any person arising out of the acts or omissions of
Consultant or any of its agents or affiliates or any breach of any agreement,
representation or warranty of Consultant contained herein including, but not
limited to, any violation of any provision of the Securities Act, the Exchange
Act or any rule or regulation promulgated there under, or any applicable state
securities or blue sky laws.
8. COMPLIANCE
WITH SECURITIES LAWS.
The
Company understands that any and all Compensation outlined in this Services
Agreement shall be paid solely and exclusively as consideration for the
aforementioned consulting efforts made by Consultant on behalf of the Company
as
an independent contractor. The parties performing the services outlined in
this
Services Agreement are natural persons and shall only provide advisory services
internally to the Company. Consultant's engagement does not involve the
marketing of any Company securities.
9. MISCELLANEOUS.
a. Termination
and Renewal:
This
Services Agreement may be terminated by Company only upon written notice to
Consultant and Consultant's failure to cure said material breach within 45
days
from receipt of said notice.
b. Modification:
This
Services Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof. This Agreement may be amended only in
writing signed by both parties.
c. Notices:
Any
notice required or permitted to be given hereunder shall be in writing and
shall
be mailed or otherwise delivered in person to the parties at the addresses
set
forth above.
d. Waiver:
Any
waiver by either party of a breach of any provision of this Services Agreement
shall not operate as or be construed to be a waiver of any other breach of
that
provision or of any breach of any other provision of this Services Agreement.
The failure of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions will not be considered a waiver or deprive
that party of the right thereafter to insist upon adherence to that term of
any
other term of this Services Agreement.
e.
Severability:
If any
provision of this Services Agreement is invalid, illegal, or unenforceable,
the
balance of this Services Agreement shall remain in effect. If any provision
is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances. If any compensation provision
is deemed unenforceable or illegal, then in the case of the delivery of common
stock to the Consultant, Consultant shall be entitled to receive a cash benefit
equal to the value of the common stock that would have been tendered had such
a
provision not been illegal or unenforceable.
f. Arbitration:
Any
dispute or other disagreement arising from or out of this Services Agreement
shall be submitted to arbitration under the rules of the American Arbitration
Association and the decision of the arbiter(s) shall be enforceable in any
court
having jurisdiction thereof. Arbitration shall occur only in Orange County,
FL.
The interpretation and the enforcement of this Services Agreement shall be
governed by Florida Law as applied to residents of the State of Florida relating
to contracts executed in and to be performed solely within the State of
Florida.
g. Governing
Law:
The
subject matter of this Services Agreement shall be governed by and construed
in
accordance with the laws of the State of Florida (without reference to its
choice of law principles), and to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding
may
be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION
AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF ORANGE,
FLORIDA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH,
OR BY
REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS SERVICES
AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS
CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS SERVICES
AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY
ISSUES SO TRIABLE. If it becomes necessary for any party to institute legal
action to enforce the terms and conditions of this Services Agreement, the
prevailing party shall be awarded reasonable attorneys fees, expenses and
costs.
h.
Specific Performance:
The
Company and the Consultant shall have the right to demand specific performance
of the terms, and each of them, of this Services Agreement.
i.
Execution of the Services Agreement:
The
Company, the party executing this Services Agreement on behalf of the Company,
and the Consultant, have the requisite corporate power and authority to enter
into and carry out the terms and conditions of this Services Agreement, as
well
as all transactions contemplated hereunder. All corporate proceedings have
been
taken and all corporate authorizations and approvals have been secured which
are
necessary to authorize the execution, delivery and performance by the Company
and the Consultant of this Services Agreement. This Services Agreement has
been
duly and validly executed and delivered by the Company and the Consultant and
constitutes a valid and binding obligation, enforceable in accordance with
the
respective terms herein. Upon delivery of this Services Agreement, this Services
Agreement will constitute the valid and binding obligations of Company, and
will
be enforceable in accordance with their respective terms. Delivery may take
place via facsimile transmission.
j. Joint
Drafting.
This
Services Agreement shall be deemed to have been drafted jointly by the Parties
hereto, and no inference or interpretation against any one party shall be made
solely by virtue of such party allegedly having been the draftsperson of this
Services Agreement. The parties have each conducted sufficient and appropriate
due diligence with respect to the facts and circumstances surrounding and
related to this Services Agreement. The parties expressly disclaim all reliance
upon, and prospectively waive any fraud, misrepresentation, negligence or other
claim based on information supplied by the other party, in any way relating
to
the subject matter of this Services Agreement.
k. Acknowledgments
and Assent.
The
parties acknowledge that they have been given at least ten (10) days to consider
this Services Agreement and that they were advised to consult with an
independent attorney prior to signing this Services Agreement and that they
have
in fact consulted with counsel of their own choosing prior to executing this
Services Agreement. The parties may revoke this Services Agreement for a period
of three (3) days after signing this Services Agreement, and the Services
Agreement shall not be effective or enforceable until the expiration of this
three (3) day revocation period. The parties agree that they have read this
Services Agreement and understand the content herein, and freely and voluntarily
assent to all of the terms herein.
l. Accredited
Investor.
Consultant acknowledges that he is an “accredited investor” (as defined in Rule
501 of Regulation D), and such Consultant has such experience in business and
financial matters that he is capable of evaluating the merits and risks of
an
investment in the Company's securities as provide for in the Services Agreement
(the “Securities”), as amended. Such Consultant is not required to be registered
as a broker-dealer under Section 15 of the Exchange Act and such Purchaser
is
not a broker-dealer. The Consultant acknowledges that an investment in the
Securities is speculative and involves a high degree of risk.
m. Material
Non-Public Information. Consultant
acknowledges that the Company is a publicly traded company. As such, the
Consultant agrees not to use any material non-public information about the
Company in connection with the purchase or sale of the securities of the
Company.
IN
WITNESS WHEREOF, this Services Agreement has been executed by the parties as
of
the date first above written.
COMPANY
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CONSULTANT
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VOIP,
INC.
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Piter
Korompis
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/s/
Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
By:
Xxxxxxx X. Xxxxxxx
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/s/
Piter
Korompis
Piter
Korompis
An:
Individual
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Its:
Chief Executive Officer
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A
FACSIMILE COPY OF THIS SERVICES AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT
AS AN
ORIGINAL OF THE SAME.