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Exhibit 10.7
AMENDED
AGREEMENT
This Agreement is entered into by and between EMB Corporation, a Hawaii
corporation ("Company"), and Hospitality Group Inc.("Consultant"), a Nevada
corporation. The effective date of this agreement is April 1, 1998. This
Agreement is hereby amended by the parties as of May 1, 1998.
RECITALS
Company wishes to obtain the consulting services of Consultant to assist Company
in connection with developing consumer financial assistance centers, and
Consultant has negotiated the terms of such an agreement with Company and has
agreed to the terms as set forth hereafter, and as agreed and set forth more
particularly by amended attachment hereto from time to time.
AGREEMENT
The parties hereby agree as follows:
1. Term of Agreement
Company hereby hires Consultant and Consultant accepts such employment for a
term of three years commencing April 1, 1998, and terminating March 31, 2001,
unless sooner terminated as hereinafter provided.
1.1. General Provisions
1.1.1 Survival of Agreement. This Agreement shall not
be terminated by a restructuring of the company or of the
Consultant. If either of the parties restructures but remains
in the business, the contract shall survive.
1.1.2 Legal Representation. Each party acknowledges
that they were advised that they were entitled to separate
counsel and they have either employed such counsel or
voluntarily waived their right to consult with counsel.
1.1.3 Notices. All notices and other communications
provided for or permitted hereunder shall be in writing and
shall be made by hand delivery, first class mail, telex or
telecopier, addressed as follows:
PARTY ADDRESS
EMB Corporation ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Hospitality Group Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; three (3) business days after
deposit in any United States Post Office in the Continental United States,
postage prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged, if telecopied.
1.1.4 Attorneys' Fees. In the event that a dispute
arises with respect to this Agreement, the party prevailing in
such dispute shall be entitled to recover all expenses,
including, without limitation, reasonable attorneys' fees and
expenses, incurred in ascertaining such party's rights or in
preparing to enforce, or in enforcing, such party's rights
under this Agreement, whether or not it was necessary for such
party to institute suit.
1.1.5 Complete Agreement of the Parties. This is the
complete agreement of the parties and it supersedes any
agreement that has been made prior to this agreement.
1.1.6 Assignment. This Agreement is of a personal
nature and may not be assigned.
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1.1.7 Binding. This Agreement shall be binding both
of the parties hereto. 1.1.8 Number and Gender. Whenever the
singular number is used in this Agreement and when required by
the context, the same shall include the plural.. The masculine
gender shall include the feminine and neuter genders, and the
word "person" shall include a corporation, firm, partnership,
or other form of association.
1.1.9 Governing Law. The parties hereby expressly
acknowledge and agree that this Agreement is entered into in
the State of Nevada and, to the extent permitted by law, this
Agreement shall be construed, and enforced in accordance with
the laws of the State of Nevada.
1.1.10 Failure to Object Not a Waiver. The failure of
a party to object to, or to take affirmative action with
respect to, any conduct of the other which is in violation of
the terms of this Agreement shall not be construed as a waiver
of the violation or breach or of any future violation, breach,
or wrongful conduct until 180 since the wrongful act or
omission to act has passed.
1.1.11 Unenforceable Terms. Any provision hereof
prohibited or unenforceable under any applicable law of any
jurisdiction shall as to such jurisdiction be ineffective
without affecting any other provision of this Agreement. To
the full extent, however, that the provisions of such
applicable law may be waived, they are hereby waived to the
end that this Agreement be deemed to be a valid and binding
agreement enforceable in accordance with its terms.
1.1.12 Execution In Counterparts. This Agreement may
be executed in several counterparts and when so executed shall
constitute shall constitute one agreement binding on all the
parties, notwithstanding that all the parties are not
signatory to the original and same counterpart.
1.1.13 Further Assurance. From time to time each
party shall execute and deliver such further instruments and
shall take such other action as any other party may reasonably
request in order to discharge and perform their obligations
and agreements hereunder and to give effect to the intentions
expressed in this Agreement.
1.1.14 Incorporation By Reference. All exhibits
referred to in this Agreement are incorporated herein in their
entirety by such reference.
1.1.15 Cross-References. All cross-references in
this Agreement, unless specifically directed to another
agreement or document, refer to provisions in this Agreement,
and shall not be deemed to be references to any overall
transaction or to any other agreements or documents.
1.1.16 Miscellaneous Provisions. The various headings
and numbers herein and the grouping of provisions of this
Agreement into separate divisions are for the purpose of
convenience only and shall not be considered a part hereof.
The language in all parts of this Agreement shall in all cases
be construed in accordance to its fair meaning as if prepared
by all parties to the Agreement and not strictly for or
against any of the parties.
2. Services of Consultant
Consultant agrees to provide to Company, the following advice and
consulting services:
2.1 At the Company's request from time to time review its
programs and plans for developing consumer financial
assistance centers and provide Company with the benefit of
Consultant's experience and perspectives.
2.2 Actively contact potential and actual interested parties
and present the Company and its programs in the most favorable
light to such parties in soliciting their participation in the
activities of the Company in developing such centers.
2.3 Analyze the Company's present goals and projected programs
for financial centers, cash flow requirements and budgets; and
through personal contacts develop and recommend sources,
methods, schedules, and formats to obtain the assistance and
necessary staffing and facility resources necessary for
Company operations.
Consultant shall personally provide such advice and services to Company. the
consultant may with the written consent of the Company also provide up to fifty
(50%) percent of the advice through a consulting Agent, acceptable to company.
The term "Consulting Agent" may be used herein to refer to such officer,
employee. or subcontractor of Consultant.
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3. Necessary Services
3.1 Performance of Duties. Consultant agrees that he shall and any
Consulting Agent shall perform at all times faithfully, industriously,
and to the best of their ability, experience, and talents all of the
duties that may reasonably be assigned to them hereunder and, shall
devote such time to the performance of such duties as may be necessary
therefor.
4. Compensation
In consideration for the services required of Consultant hereunder,
Company agrees to compensate Consultant as follows:
4.1 Retainer Stock. At the commencement of this contract, the Company
shall compensate Consultant with a retainer of $250,000.00 in the form
of shares of the Company's common stock, and shall deliver to
Consultant such number of shares valued at the average trading bid
price for each share calculated over the first calendar quarter of
1998. All such shares shall be registered with respect to resale
pursuant to Regulation S-8 promulgated by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, and
Company shall deliver such shares to Consultant at such times and in
such one or more portions as Consultant shall specify by written notice
to Company. Each such delivery shall be made within five (5) days after
Company's receipt of Consultant's written notice requesting such
delivery. AMENDMENT: Consultant agrees that the first 100,000 shares
are fully earned ninety (90) days after execution hereof , and the
balance of the shares, not less than 200,000, shall be earned on a
pro-rata basis over the three year term of the agreement at 8,333
shares per month commencing with the start of the second year.
4.2 Guarantee of Value. As a guarantee of value of the compensation set
forth in the preceding paragraph, Company shall provide a separate
Financial Guarantee that the above mentioned retainer in the form of
shares shall be have a value of not less than $250,000.00 in the
aggregate during the initial period of this Agreement; and that at the
option of Consultant, Company shall make up the difference between that
actual value derived from such aggregate shares and the sum of
$250,000.00.
4.3 Expense Reimbursement. Company shall reimburse Consultant for any
out-of-pocket expenses incurred in connection with the negotiation and
execution of this Agreement and the performance of services required of
Consultant hereunder.
5. Independent Contractor
In performing services and duties hereunder, Consultant and any person
acting on Consultant's behalf shall do so as independent contractors and are
not, and are not to be deemed, employees or agents of Company or any other
person acting on behalf of Company. Consultant shall be responsible for meeting
any legal requirements imposed on Consultant or any person acting on his behalf
as a result of this Agreement, including but not limited to the filing of income
tax returns and the payment of taxes; and Consultant agrees to indemnify Company
for the failure to do so, if Company is required to make any such payment
otherwise due by Consultant or any such person acting on Consultant's behalf.
6. Remedy for Breach
Consultant acknowledges that the services to be rendered by him
hereunder are of a special, unique, and extraordinary character which gives this
Agreement a peculiar value to Company, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that a breach by
Consultant of this Agreement shall cause Company irreparable injury. Therefore,
Consultant expressly acknowledges that this Agreement may be enforced against
him by injunction and other equitable remedies, without bond. Such relief shall
not be exclusive, but shall be in addition to any other rights or remedies
Company may have for such breach.
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Company acknowledges that the services to be rendered to it hereunder are of a
special, unique, and extraordinary character which gives this Agreement a
peculiar value to consultant, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that a breach by
Company of this Agreement shall cause Consultant irreparable injury. Therefore,
company expressly acknowledges that this Agreement may be enforced against it by
injunction and other equitable remedies, without bond. Such relief shall not be
exclusive, but shall be in addition to any other rights or remedies Consultant
may have for such breach.
7. Termination
7.1 Causes for Termination. This Agreement shall terminate immediately
upon the occurrence of any one of the following events:
7.1.1. The expiration of the term hereof; 7.1.2 The written
agreement of the parties;
7.1.3. The occurrence of circumstances that make it impossible
for the business of Company to be continued;
7.1.4. The occurrence of circumstances that make it impossible
for the business of consultant to be continued;
7.1.5. Consultant's breach of his duties hereunder, unless
waived by Company or cured by Consultant within 30 days after
Company's having given written notice thereof to Consultant;
7.1.6. Company's breach of its duties hereunder, unless waived
by Consultant or cured by Company within 30 days after
Consultant's having given written notice thereof to Company
7.2 Compensation upon Termination. Unless otherwise mutually agreed in
writing by the parties, the termination of this Agreement due to any
cause other than that specified in subsection 7.1.4 shall not relieve
Company of its obligation to make any payment of money or any delivery
of shares or securities which would have been required, or could have
been required by Consultant, pursuant to Sections 4.1, 4.2, and 4.3, if
this Agreement had not been so terminated.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above, together with the amendment contained herein as of May 1, 1998.
COMPANY:
EMB Corporation
By:
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Title:
CONSULTANT:
Hospitality Group Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: President