EXHIBIT 10.2
CONSULTING AGREEMENT
Agreement made and entered into as of the 5th day of January 1999, and
effective November 10, 1998, by and between Diverse Capital Corp. a Florida
corporation whose mailing address is X.X. Xxx 000000 Xxxxx, Xxxxxxx 00000 (the
"Company"), and Xxxx Capital, Corp., a Delaware corporation having offices at
00000 Xxxxxxxxx Xxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to secure the services of the Consultant
to provide assistance with respect to corporate finance, evaluations of possible
business partners, introductions to broker/dealers for market making and
financing, and the Consultant desires to provide such services to the Company,
subject to and in accordance with the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, and for other valuable consideration,
the receipt of which is hereby acknowledged, it is hereby agreed as follows:
1. RETENTION. The Company hereby retains the Consultant and the
Consultant hereby accepts such retention by Company, for the
period and upon the terms and conditions set forth in this
Agreement.
2. DUTIES
(a) The Consultant shall serve the Company generally as a
consultant to assist the Company with regard to corporate
finance, evaluations of possible business partners,
mergers and acquisitions and such other matters relating
to the above as may be requested by the Company from time
to time. The Consultant will seek to find business
partners/acquisitions suitable for the Company, but it
will be the Company that will structure and negotiate the
financing of such transactions.
(b) The Consultant throughout the Term (as hereinafter
defined in Paragraph 3), shall devote its best efforts to
the performance of its duties hereunder in a manner which
will faithfully and diligently further the business
interests of the Company. It is anticipated that over the
Term the Consultant will devote such time to the
performance of its duties hereunder as is reasonably
requested by the Company from time to time.
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3. TERM.This Agreement shall be in effect for a term (the "Term") of
five (5) years commencing as of the date hereof. Thereafter, this
Agreement may be extended by mutual written agreement of the
parties.
4. COMPENSATION.
a) SIGNING BONUS. Company shall issue to consultant One
Hundred Fifty Thousand (150,000) shares of the Company's
common stock, par value $.001 for entering into this
Agreement. The stock will be issued on or before March 31,
1999.
b) MONTHLY RETAINER. The Company will pay to the consultant
eight thousand ($8,000) dollars per month, due and payable in
two equal payments of $4,000 on the 1st and 15th of each
month.
c) OPTIONS. As compensation for services to be rendered by the
Consultant during the Term, the Company is issuing
simultaneously with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $1.00 per share. The Option Shares will be exercisable for
a period commencing from the effective date first written
above and terminating on the fifth anniversary of the date
hereof. Additionally, the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $1.50 per share. The Option Shares will be exercisable for
a period commencing from January 15, 1999 and terminating on
January 15, 2004, and the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $2.00 per share. The Option Shares will be exercisable for
a period commencing from January 15, 2000 and terminating on
January 15, 2005, and the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $2.50 per share. The Option Shares will be exercisable for
a period commencing from January 15, 2001 and terminating on
January 15, 2006, and the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the
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"Options") to purchase 250,000 shares (the "Option Shares") of
the Company's common stock, par value $0.001 per share (the
"Common Stock"), for an exercise price of $3.00 per share. The
Option Shares will be exercisable for a period commencing from
January 15, 2002 and terminating on January 15, 2007. Further,
all of the Option Shares shall contain cashless exercise and
no dilution provisions, as well as piggyback registration
rights.
Example:
EXERCISE DATE SHARES EXERCISE PRICE
------------- ------ --------------
January 5, 1999 125,000 $1.00
January 15, 1999 125,000 $1.50
January 15, 2000 125,000 $2.00
January 15, 2001 125,000 $2.50
January 15, 2002 250,000 $3.00
d) FINDERS FEE. In addition to the Options and Option Shares,
and as further compensation for services rendered by
Consultant, the Company agrees to pay to the Consultant,
simultaneously with the closing of any acquisition,
merger, reverse-merger and/or equity or debt financing
introduced to the Company by the Consultant, excluding
Orlando Digital Telephone, and Blazoon Systems,
Incorporated, a two (2%) percent fee, payable in cash or
stock at the Company's election, on the total value of the
acquisition, merger or financing.
5. EXPENSES
a) REIMBURSEMENT FOR OUT-OF-POCKET EXPENSES. The Company
shall reimburse the Consultant for all reasonable expenses
incurred during the Term which are directly related to the
performance of its services hereunder. All expenses in
excess of $200, must be pre approved by an executive
officer of the Company. The Consultant shall be reimbursed
at such times and with such frequency as is the custom of
the Company with regard to reimbursement of employees for
expenses. For such purposes, the Consultant shall submit
to the Company periodic reports of such expenses,
including a statement of the related services performed by
the Consultant to which such expenses relate.
b) UNACCOUNTED EXPENSES. The Consultant shall be eligible for
reimbursement of $2,500.00 per month in Unaccounted
Expenses.
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6. AUTHORITY TO BIND THE COMPANY. Nothing herein shall imply that the
Consultant is either an employee or agent of the Company, except
to such an extent as might be agreed upon in writing for a
specified purpose. Except as expressly agreed, the Consultant
shall not have the authority to obligate or commit the Company in
any manner whatsoever.
7. COMPANY PROPERTY. All advertising, sales, marketing and other
materials or articles or information, including without limitation
data processing reports, sales analyses, invoices, price lists or
information, or any other materials or data of any kind furnished
to the Consultant by the Company or developed by the Consultant
for the Company and at the Company's direction or for the
Company's use or otherwise in connection with the Consultant's
services hereunder, are and shall remain the sole and confidential
property of the Company, if the Company requests the return of
such materials at any time during or after the Term, the
Consultant shall immediately deliver the same to Company.
8. NON-COMPETITION, TRADE SECRETS.
a) During the Term as long as this Agreement is in effect and for
a period of two (2) years thereafter, the Consultant shall not
directly or indirectly induce or attempt to influence any employee
of the Company to terminate his employment with the Company or
solicit or divert any business or customer or supplier from the
Company.
b) During the Term and at all times thereafter, the Consultant
shall not use for its benefit, or disclose, communicate or divulge
to, or use for the direct or indirect benefit of any person, firm,
association or company other than the Company, any material
referred to in Paragraph 7 above or any information regarding the
business methods, business policies, procedures, techniques, trade
secrets, or other knowledge or processes of or developed by the
Company or any names and addresses of the Company's customers or
clients or any data on or relating to past, present or prospective
customers or clients of the Company or any other confidential
information relating to or dealing with the business operations or
activities of the Company, made known to the Consultant or learned
or acquired by the Consultant while retained by the Company,
provided that this provision shall not be construed to restrict
the use or disclosure of any information which (i) is generally
publicly known at the time of its disclosure to, or use by, the
Consultant or (ii) is lawfully received by the Consultant from a
third party not bound in a confidential relationship to the
Company or any subsidiary or affiliate thereof.
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c) Any and all writings, inventions, improvements, processes,
procedures and/or techniques which the Consultant may make,
conceive, discover or develop, either solely or jointly with any
person or persons, at any time during the Term, whether during
working hours or at any other time and whether at the request or
upon the suggestion of the Company or otherwise, which relate to
or are useful in connection with any business now or hereafter
carried on including developments or expansions of its present
fields of Operations, and are directly and specifically related to
Consultant's duties arising under this Agreement, and that are
reasonably related to a legitimate business interest of the
Company, shall be the sole and exclusive property of the Company.
The Consultant shall promptly make full disclosure to the Company
of all such writings, inventions, improvements, processes,
procedures and techniques and otherwise aid and assist the Company
so that the Company can prepare and present applications for
copyright or letters of patents therefore, can secure such
copyright or letter of patent whenever possible, as well as
reissues, renewals, and extension thereof, and can obtain the
record title to such copyright or patents so that the Company
shall be the sole and absolute owner thereof in all countries in
which it may desire to have copyright or patent protection. The
Consultant shall not be entitled to any additional or special
compensation or reimbursement regarding any and all such writings,
inventions, improvements, processes, procedures and techniques,
unless agreed upon in writing by the parties.
d) The Consultant acknowledges that the restrictions contained in
the foregoing subparagraphs (a), (b) and (c), in view of the
nature of the business in which the Company is engaged, are
reasonable and necessary in order to protect the legitimate
interests of the Company and that any violation thereof would
result in irreparable injuries to the Company, and the Consultant
therefore acknowledges that, in the event of its violation of any
of these restrictions, the Company shall be entitled to obtain
from any court of competent jurisdiction preliminary and permanent
injunctive relief as well as damages and an equitable accounting
of all earnings, profits and other benefits arising form such
violation, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled.
e) If the period of time or the area specified in subparagraph (a)
above should be adjudged unreasonable in any proceeding, then the
period of time shall be reduced by such number of months or the
area shall be reduced by the elimination of such portion thereof
or both so that such restrictions may be enforced in such areas
and for such time as adjudged to be reasonable. If the Consultant
violates any of the restrictions contained in the forgoing
subparagraph (a), the restrictive period shall not run in favor of
the Consultant from the time of the commencement of any such
violation until such time as such violation shall be cured by the
Consultant to
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the satisfaction of the Company.
9. INDULGENCES. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of
any right, remedy, power or privilege with respect to any
occurrence. No waiver shall be effective unless it is in writing
and is signed by the party asserted to have granted such waiver.
10. ASSIGNMENT. Neither party may assign its rights or obligations
under the Agreement without the written consent of the other
party, except that the Company may assign this Agreement and all
rights and obligations hereunder to, and may require the
assumption hereof, by any corporation or any other business entity
which succeeds to all or substantially all the business of the
Company through merger, consolidation or corporate reorganization
or by acquisition of all or substantially all of the assets of the
Company.
11. NOTICE. All notices, requests, demands and other communications
required or permitted under this Agreement will be in writing and
will be deemed to have been duly given, made and received when
personally delivered, or three (3) days after deposited in the
United States mails, certified mail return receipt requested, or
one (1) day after send by a reputable overnight courier service,
addressed as set forth below:
IF TO THE COMPANY: IF TO THE CONSULTANT:
Diverse Capital Corp. Xxxx Capital Corp.
P.O. Box 172574 00000 Xxxxxxxxx Xxx Xxxxx
Xxxxx, XX 00000 Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, President Attn: Xxxx Xxxxxxxxxx-Xxxxx
12. CONTROLLING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida,
notwithstanding any conflict-of-law doctrine of such state or
jurisdiction to the contrary.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties, may not be altered or modified, except in
writing signed by the party to be charged thereby, and supersedes
any and all previous agreements between the parties.
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14. EXECUTION AND COUNTERPARTS. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed
and delivered, will be deemed to be an original and all of which
taken together will be considered one and the same Agreement.
15. ARBITRATION. Any dispute, controversy or claim arising out of or
in connection with this Settlement Agreement shall be determined
and settled by arbitration in the County of Hillsborough, State of
Florida, conducted by the American Arbitration Association in
accordance with its then existing rules, regulations, practices
and procedures. The arbitration proceedings shall be conducted
before a single neutral arbitrator selected by the Association in
accordance with its then existing rules, regulations, practices
and procedures. Any decision rendered by the arbitrator shall be
final, conclusive and binding upon the parties to the arbitration
and may be enforced by the judgment and order of a court of proper
jurisdiction in the State of Florida for Hillsborough County and
the parties hereto hereby waive any objection to such jurisdiction
or venue in any such proceeding commenced in such court. In any
proceeding between the parties hereto arising out of or in
connection with this Agreement, the prevailing party shall be
entitled to recover its reasonable legal fees and expenses from
the losing party.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
COMPANY: CONSULTANT:
DIVERSE CAPITAL CORP. XXXX CAPITAL CORP.
By: By:
----------------------------------- ---------------------------------
Xxxx X. Xxxx, President Xxxx Xxxxxxxxxx-Xxxxx, President
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