Exhibit 10.7
AMENDED AND RESTATED
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of April 19, 1999 by and between
INTERNATIONAL BARTER CORP., a Nevada corporation, with its principal place of
business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
or, following its name change, ▇▇▇▇▇▇▇.▇▇▇, Inc. (hereinafter together with all
of its affiliates referred to collectively as the "Company"), and ASTRA ADVISORS
LLC, with offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Consultant"). This Agreement supersedes the
Agreement between International Barter Corp. and Liad Meidar dated October 1,
1998.
WHEREAS, the Company wishes to retain the Consultant and the Consultant
wishes to become a consultant to the Company, on the terms and conditions set
forth herein; and
WHEREAS the execution of this Agreement, has been approved by the Board of
Directors of the Company;
NOW, THEREFORE, the parties hereto agree as follows:
1. Term. The Company hereby retains the Consultant, and the Consultant
hereby accepts such retainer, for an initial term commencing as of the date
hereof and ending on the second anniversary of such date, unless sooner
terminated in accordance with the provisions of Section 4 or Section 5 (the
"Initial Term"); with such retainer to continue in accordance with the terms of
this Agreement from year to year thereafter (subject to termination as
aforesaid) unless written notice of non-renewal is given to Consultant prior to
ninety (90) days before the expiration of the Initial Term or any continuation
term (said Initial Term and any continuation thereof being hereinafter referred
to as the "Term").
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2. Services. The Consultant agrees to perform for the Company the following
services:
(a) to provide general consulting services to the Company in
connection with the development of new business ventures;
(b) to participate in efforts to raise capital for the Company, but
only to assist in presentations and not to source funds;
(c) to assist in developing a business plan for the Company and to
advise the Company with respect to its capital structure;
(d) to seek potential acquisition and investment opportunities for the
Company ("Target Companies");
(e) to perform a financial and strategic review of the Company and to
assist the Company in formulating its future strategy;
(f) to assist the Company in the performance of due diligence for a
Transaction (as hereinafter defined) involving a Target Company;
(g) to provide general consulting services on such matters as may be
requested by the Board of Directors of the Company; and
(h) to develop online marketing strategies for the Company.
The Consultant, through its agents, employees, managers, members or
affiliates, agrees to devote approximately fifteen hundred (1,500) hours per
twelve month period of the Term (a "Year") to the performance of Consultant
services. Consultant shall be free to pursue other ventures and is not expected
to devote full time efforts to this engagement. Consultant shall be solely
responsible for the amount of time spent and the periods during which the time
is expended.
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3. Compensation.
3.1 Retainer. The Company shall pay the Consultant during the Term a
retainer (the "Quarterly Retainer"), of $25,000 per quarter, payable on or
before July 1, 1999 and the first business day of each three month period next
following July 1, 1999. Such retainer shall be an advance payment for consulting
services to be rendered during the ensuing three months following payment. This
Agreement shall run for a term to expire December 31, 2001.
3.2 Additional Remuneration. (a) In the event that (i) any Transaction
is consummated during the Term or at any time within one year after the Term or
(ii) any agreement is entered into during the Term or during such one-year
period which subsequently results in a consummated Transaction, then, upon the
closing of each and every such Transaction, an additional fee (the "Transaction
Fee") shall be payable to the Consultant in an amount equal to 3.0% of the
Consideration (as hereinafter defined) paid in such Transaction. Such
Transaction Fee shall be payable in cash and, at Consultant's sole option, up to
50% of such fee may be payable in duly authorized, fully paid and non-assessable
shares of common stock ("Common Stock") $.001 par value per share or any other
equivalent voting common stock issued by the Company in lieu of the Common
Stock. The number of shares of Common Stock issuable to the Consultant with
respect to any consummated Transaction shall be determined by a fraction the
numerator of which shall be the dollar amount attributable to the Common Stock
portion of the Transaction Fee and the denominator of which shall be the Fair
Market Value (as hereinafter defined) of one share of Common Stock, calculated
in accordance with paragraph (c) of this section with respect to the calculation
of Fair Market Value for non-cash consideration.
(b) Subject to the immediately succeeding paragraph, "Consideration"
means the total proceeds and other consideration paid and to be paid or
contributed and to be
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contributed, directly or indirectly, in connection with a Transaction (which
consideration shall be deemed to include amounts paid or to be paid into escrow)
by the company including, without limitation: (i) cash; (ii) notes, securities
and other property (including all options, warrants or other instruments or
arrangements convertible into or exercisable for any of the foregoing) at the
Fair Market Value thereof; (iii) all interest bearing liabilities of any Target
Company not specifically excluded from the Transaction by agreement of the
Company and of any Target Company; (iv) payments to be made in installments; (v)
amounts paid or payable under consulting, supply, service, distribution,
licensing agreements, equipment or real property lease agreements, agreements
not to compete or similar arrangements.
(c) The Fair Market Value of non-cash consideration consisting of
securities issued by the Company (including any notes, options, warrants or
other instruments or arrangements convertible into, or exercisable for, any of
the foregoing) shall be determined based upon (i) the 20 trading day average
closing sale price for such securities on the registered national securities
exchange, NASDAQ, or other securities market providing the primary market for
such securities, (the "Determination Period"), (ii) if such securities are not
so traded on any day during the Determination Period, the price of such
securities with respect to such day shall be the mean between the high closing
bid and low closing asked prices as reported by the primary market for the
securities calculated in the same manner as above, or (iii) if such securities
are not so traded or reported, Fair Market Value shall be determined by
agreement between the Company and Consultant. In each case, the Determination
Period shall end on the day next preceding the closing of the relevant
Transaction. The Fair Market Value of (i) any non-cash Consideration other than
securities and (ii) any Consideration consisting of a contingent payment shall
in each case be determined by agreement by the Company and
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Consultant. If all or any portion of Consideration is to be paid over time, then
that portion of the Transaction Fee attributable thereto shall be payable as and
when such payments are made. No fee payable to any other financial adviser
either by the Company or any other entity shall reduce or otherwise affect the
fees payable hereunder to the Consultant.
(d) For purposes of this Agreement, the term "Transaction" shall mean,
whether in one or a series of transactions, (i) any merger, consolidation,
reorganization, recapitalization, leveraged buy-out, restructuring or other
business combination involving any one or more Target Companies, (ii) the
acquisition, directly or indirectly, through public or private purchases or
otherwise of all or any portion of securities, assets, liabilities, property
and/or business of any one or more Target Companies, (iii) the formation of a
joint venture or partnership for the purpose of combining all or any portion of
the securities, assets, liabilities, properties and/or business of Company and
any Target Company, and (iv) any management, consulting, supply, service,
distribution, licensing or similar arrangement involving the Company and any one
or more of the Target Companies entered into in relation to a Transaction.
3.3 Independent Contractor Status. The Consultant acknowledges and
agrees that, during the Term, the relationship between the Consultant and the
Company is that of an independent contractor and, accordingly, the Consultant's
employees, managers, agents, members or affiliates shall not be permitted to
participate in any group life, hospitalization or disability insurance plans,
health programs, pension plans or similar benefits (collectively, "Benefits
Programs") that may be available to employees of the Company generally unless
Consultant or it's employees, managers, agents, members or affiliates pay the
costs incurred for their share of such Benefits Programs; provided, however, the
Consultant shall participate in the Company's 1998 Stock Option Plan and any
other option plans sponsored by the Company.
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Nothing in this Agreement shall be construed as establishing the place and time
of performance of Consultant's services.
3.4 Expenses. The Company shall pay or reimburse the Consultant for
all reasonable out-of-pocket expenses actually incurred or paid by the
Consultant during the Term in the performance of the Consultant's services under
this Agreement; provided, however, Consultant shall bear the rental costs of its
office.
4. Normal Termination or Termination Upon Death or Disability. This
Agreement shall terminate by its terms on December 31, 2001, at which time all
undistributed consideration payable to Consultant shall be paid. If the
Consultant's President, Liad Meidar, dies during the Term, this Agreement shall
terminate as of the date of ▇▇. ▇▇▇▇▇▇'▇ death. If the Consultant by virtue of
ill health or other disability is unable to perform one thousand (1000) hours of
service per year for any consecutive twelve month period, the Company shall have
the right to terminate this Agreement upon notice in writing to the Consultant.
Upon such termination, the Consultant shall be entitled to receive any retainer
amounts received and any other benefits earned and accrued prior to the date of
termination and reimbursement for expenses incurred prior to the date of
termination. No provision of this Agreement shall limit any rights under any
Benefits Programs of the Company in which the Consultant or it's employees,
managers, agents, members or affiliates have participated in accordance with
Section 3.3, if any, for which such persons shall be eligible at the time of
such death or disability.
5. Termination for Cause. If the Consultant's President, Liad Meidar, (i)
is convicted of a felony or any crime involving the Company (other than pursuant
to actions taken at the direction or with the approval of the Company's Board of
Directors), (ii) if found by determination of the Board of Directors of the
Company to have engaged in (A) fraud,
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(B) misappropriation or (C) embezzlement in the performance of services
hereunder, the Company may, at any time within 30 days of the occurrence of any
of the events described in clauses (i), (ii) and (iii) above, by written notice
to the Consultant, terminate this Agreement. The Consultant shall have no right
to receive any compensation or benefit hereunder on and after the effective date
of the notice provided in the preceding sentence other than salary and other
benefits earned and accrued prior to the date of termination and reimbursement
for expenses incurred prior to the date of termination.
6. Stock Options. Consultant shall have the right to participate in the
Company's 1998 Stock Option Plan and any other Company Stock Option Plan (the
"Plan"). The Company shall issue options to Consultant as set forth in
accordance with Exhibit A hereto. The shares of Common Stock subject to such
options will represent the percentage of shares of common stock outstanding on a
fully diluted basis as set forth in Exhibit A. Such options granted shall be
immediately fully vested and shall have no minimum or maximum exercise date.
7. Tag-Along Rights. Consultant shall have tag-along rights with respect to
all stock which has been granted as compensation or otherwise pursuant to this
Agreement and with respect to all stock options, whether exercised or
unexercised.
(a) Grant of Tag-Along Right. If any Shareholder or group of
Shareholders holding in excess of twenty-five percent (25%) of the Corporation's
stock (the "Selling Majority") shall receive a purchase offer from a third-party
acquirer (the "Acquirer") and the above options are not exercised in full, then
Consultant shall have a right of co-sale with respect to any shares that the
Selling Majority proposes to sell to the Acquirer (the "Tag-Along Right"). Such
rights shall also apply not only to a sale but also any other transaction
involving an exchange of securities involving a transfer by the Selling Majority
and another company. The
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Selling Majority shall give the Consultant fifteen (15) days' advance written
notice of their intentions.
(b) Exercise of Tag-Along Right. Consultant may exercise the Tag-Along
Right by delivering a written request to the Selling Majority, no later than the
fifteenth (15th) day after the date on the Consultant is notified of a pending
sale. The written request shall constitute the Consultant's election to cause
the Acquirer to purchase all or a portion of the remaining Consultant's shares
and options at the same price per share and upon the same terms and conditions
as contained in the Purchase Offer.
(c) Anti-Dilution Provision. The following anti-dilution provision
shall apply during the term of this Agreement and the term of the Covenant Not
To Compete set forth in Section 9.11, herein, following any termination of this
Agreement. In the event of any recapitalization, sale, exchange or other
transaction involving the securities of the Company, the Company agrees that
Consultant's relative percentage interest in Company, taking into consideration
stock and options (whether exercised or not) (herein referred to as,
"Consultant's Options) shall not be diluted without prior written consent. In
the event of a breach of this provision, Company agrees to issue such additional
shares of common capital stock or options to purchase common capital stock
pursuant to the schedule attached as Exhibit A and held outright by Consultant
to bring the relative ownership interest of Consultant to the same percentage
interest owned prior to such dilution event. In other words, if prior to any
event involving the capitalization of Company, Consultant owns, directly or
indirectly, by way of stock or options, exercised or unexercised, a capital
interest equal to ten percent (10%) of the capital stock issued and outstanding,
then after any such event involving the capitalization of the Company, the
Company, or its affiliates, successors or assigns, shall take all steps
necessary to distribute to
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Consultant such stock and options so that Consultant shall continue to own ten
percent (10%) of the capital stock of the Company following such event.
If the outstanding shares of stock of the class then subject to the
Consultant's Options are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities or other forms
of property (including cash) or rights, as a result of one or more
reorganizations, recapitalizations, spin-offs, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities or other forms of property
(including cash) or rights for which the Consultant's Options may thereafter be
exercised, all without any change in the aggregate exercise price applicable to
the unexercised portions of the Consultant's Options, but with a corresponding
adjustment in the exercise price per share or other unit. Such adjustments shall
be made by or under authority of the Company's board of directors whose
determinations as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to the Consultant's Options are
changed into or exchanged for property (including cash), rights or securities
not of the Company's issue, or any combination thereof, or upon a sale of
substantially all the property of the Company to, or the acquisition of stock
representing more than eighty percent (80%) of the voting power of the stock of
the Company then outstanding by, another corporation or person, the Company
shall undertake in writing in connection with such transaction for the
assumption of the Consultant's Options, or the substitution for the Consultant's
Options of an option covering the stock of a successor corporation or entity, or
a parent or a subsidiary thereof, with appropriate adjustments in
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accordance with the provisions herein as to the number and kind of shares
optioned and their exercise prices, in which event the Consultant's Options
shall continue in the manner and under the terms so provided.
8. Confidentiality.
(a) During the Restricted Period (defined, for purposes of this
Agreement as a term of two (2) years following the termination of this Agreement
for any reason and thereafter, the Consultant shall keep secret and retain in
strictest confidence, and shall not use for his benefit or the benefit of
others, except in connection with the business and affairs of the Company, all
confidential matters relating to the Company and its business learned by the
Consultant heretofore or hereafter directly or indirectly from the Company
including any information concerning the business, affairs, customers, clients,
sources of supply and customer lists of the Company (the "Confidential Company
Information") and shall not disclose them to anyone except with the Company's
express written consent and except for Confidential Company Information which
(i) is at the time of receipt publicly known, or thereafter becomes publicly
known, through no wrongful act of the Consultant or (ii) is received from a
third party not under an obligation to keep such information confidential and
without breach of this Agreement. These rights of the Company are in addition to
and without limitation to those rights and remedies available under common law
for protection of the types of such confidential information which constitute
"trade secrets" as construed under controlling law.
(b) During the Restricted Period, the Consultant shall not, without
the Company's prior written consent, directly or indirectly, knowingly solicit
or encourage to leave the employment of the Company, any employee of the Company
or hire any employee who has
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left the employment of the Company within one year of the termination of such
employee's employment with the Company.
(c) All memoranda, notes, lists, records and other documents (and all
copies thereof) constituting Confidential Company Information made or compiled
by the Consultant or made available to the Consultant concerning the Company
shall be the Company's property, shall be kept confidential in accordance with
the provisions of this Section 6.1 and shall be delivered to the Company at any
time on request.
9. Other Provisions.
9.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, five days after the date of deposit in the United States mails as
follows:
(i) If to the Company, to:
International Barter Corp. or ▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief Executive
Officer and President
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c/o International Barter Corp. or ▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii)If to the Consultant, to:
Liad Y. Meidar, President
Astra Advisors LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any such person may by notice given in accordance with this Section to the other
parties hereto designate another address or person for receipt by such person of
notices hereunder.
9.2 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
9.3 Waivers and Amendments. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived, only by a
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written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege nor
any single or partial exercise of any such right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege.
9.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington applicable to agreements
made and to be performed entirely within the State. In the event of a dispute
among the parties, venue shall lay in King County, Washington.
9.5 Assignment. This Agreement, and the Consultant's rights and
obligations hereunder, may be assigned by the Consultant to any corporation
majority owned by the Consultant provided that the Consultant remains solely
responsible for the performance of all of the services and compliance with all
of the provisions of this Agreement. Any assignment of this Agreement by
Consultant in violation of the terms hereof shall be null and void. In the event
of any sale, transfer or other disposition of all or substantially all of the
Company's assets or business, whether by merger, consolidation or otherwise, the
Company may assign this Agreement and its rights hereunder.
9.6 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors, permitted assigns,
heirs, executors and legal representatives.
9.7 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original but all
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such counterparts together shall constitute one and the same instrument. Each
counterpart may consist of two copies hereof each signed by one of the parties
hereto.
9.8 Headings. The headings in this Agreement are for reference only
and shall not affect the interpretation of this Agreement.
9.9 Indemnification. The Company agrees to indemnify the Consultant
and its affiliates and their respective members, directors, officers, employees,
agents and controlling persons (the Consultant and each such person being an
"Indemnified Party") from and against any and all losses, claims, damages and
liabilities, joint or several, (collectively "Losses") to which such Indemnified
Party may become subject under any applicable federal or state law, or
otherwise, and related to or arising out of any Transaction contemplated by this
Agreement or the engagement of Consultant pursuant to and the performance by
Consultant of the services contemplated by, this Agreement and will reimburse
any Indemnified Party for all reasonable expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
or on behalf of the Company.
The Company will not be liable under the foregoing indemnification
provision to the extent that any loss, claim damage, liability or expense is
found in a final judgment by a court to have resulted from the Consultant's bad
faith or gross negligence. The Company also agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company or its security holders or creditors related to or
arising out of the engagement of the Consultant pursuant to, or the performance
by the Consultant of the services
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contemplated by, this Agreement except to the extent that any loss, claim,
damage or liability is found in a final judgment by a court to have resulted
from the Consultant's bad faith or gross negligence. Such indemnification shall
include, without limitation, any action pursued by anyone under the federal
securities laws or under the securities laws of any state and any action pursued
with respect to compliance with requirements to conform computer operations to
the Year 2000 and beyond.
If the indemnification of an Indemnified Party provided for in this letter
agreement is for any reason held unenforceable, the Company agrees to contribute
to the losses, claims, damages and liabilities for which such indemnification is
held unenforceable (i) in such proportion as is appropriate to reflect the
relative benefits to the Company, on the one hand, and the Consultant, on the
other hand, of the Transaction as contemplated (whether or not the Transaction
is consummated) or (ii) if (but only if) the allocation provided for in clause
(i) is for any reason held unenforceable, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and the Consultant, on the other
hand, as well as any other relevant equitable considerations; provided, however,
that to the extent permitted by applicable law, in no event shall the
Indemnified Parties be required to contribute an aggregate amount in excess of
the aggregate fees actually paid to the Consultant under this Agreement.
The Company agrees that, without Consultant's prior written consent, it
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought under the indemnification provision of this
Agreement (whether or not the Consultant or any other Indemnified Party is an
actual or potential party to such claim, action or proceeding), unless such
settlement,
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compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising out of such claim, action or proceeding.
In the event that an Indemnified Party is requested or required to appear
as a witness in any action brought by or on behalf of or against the Company in
which such Indemnified Party is not named as a defendant the Company agrees to
reimburse Consultant for all reasonable out-of-pocket expenses incurred by it in
connection with such Indemnified Party's appearing and preparing to appear as
such a witness, including, without limitation, the fees and disbursements of its
legal counsel.
In the event of any action pursued by any third party for any reason
against the Indemnified Party, whether or not a lawsuit has been filed, Company
agrees to accept tender of defense and advance defense costs as they are
incurred. Indemnified Party shall have the right to approval any legal counsel
chosen to represent Indemnified Party.
9.10 Representations and Warranty. The undersigned parties, and each
of them, including the individuals signing this Agreement on behalf of the
parties, hereby represent and warrant that they have the full power and
authority to execute this Agreement on behalf of the respective parties without
any other authorization. In the case of International Barter Corporation, the
undersigned President represents that he has full authority of the Board of
Directors of such party and, to the extent necessary, the shareholders to offer
not only the stock and option grants but all other compensation contemplated in
this Agreement.
9.11 Covenant Not To Compete. Consultant recognizes and acknowledges
that the Company is placing its confidence and trust in Consultant. Accordingly,
Consultant covenants and agrees that neither it nor its principals, officers, or
members will not, during the term hereof and for a period of six (6) months
following any termination of this Agreement,
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either directly or indirectly, or otherwise through any corporation,
partnership, association, sole proprietorship or other entity:
(a) Own, manage, operate, control, serve as a consultant to, be
employed by, participate in, or be connected in any manner with the ownership,
management, operation or control of any business that competes, directly or
indirectly, with Company or any of Company's affiliates;
(b) Hire, offer to hire, entice away, or in any other manner persuade
or attempt to persuade any officer, employee or agent of Company or its
affiliates to alter or discontinue a relationship with Company or to do any act
inconsistent with the interests of Company or its affiliates;
(c) Solicit, divert, take away or in any customers or clients of
Company or its affiliates; (d) Solicit, divert, or in any other manner persuade
or attempt to persuade any supplier of Company or its affiliates to alter or
discontinue their relationship with Company or its affiliates.
For purposes of this Agreement, the term, "business" means, but is not
limited to: (i) the development, implementation, and provision of trade exchange
offering barter services to retail, professional, media, and corporate clients;
(ii) providing a centralized barter currency, centralized data processing,
standardized marketing and support materials, advertising, and ongoing training
and support to extend its client base in such business; (iii) offering trade
exchange services through the Internet; and (iv) marketing, promoting and
facilitating exchanges between its clients.
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For purposes of this Section 9.11, the term, "affiliates", means any person
or entity who: (i) is in direct or indirect control of Company (by virtue of
owning 25% or more of the outstanding voting securities of such person or
entity); or (ii) who has a direct or indirect contractual relationship with the
Company and such relationship is related to Company's business, as defined
herein.
Notwithstanding Consultant's obligations under this Section 9.11,
Consultant will be entitled to own, as a passive investor, up to five percent
(5%) of any publicly traded company without violating this provision.
Consultant and Company agree that this Section 9.11 does not impose an
undue hardship on Consultant and is not injurious to the public. They further
agree that this provision is necessary to protect the business of the Company
and its affiliates. The nature of Consultant's relationship with the Company is
such that Consultant shall have access to confidential information which is
valuable and confidential to the Company's business and therefore the Scope of
this Section 9.11 is reasonable in length of time and scope and adequate
consideration supports this covenant.
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IN WITNESS WHEREOF, the parties hereto have signed their names as of the
day and year first above written.
ASTRA ADVISORS LLC
By /s/ Liad Y. Meidar
---------------------------------------
Liad Y. Meidar, President
INTERNATIONAL BARTER CORP.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief
Executive Officer & President
19
Exhibit A
Options Granted to Consultant
For International Barter Corp. (▇▇▇▇▇▇▇.▇▇▇, Inc.) Common Capital Stock
Percentage Shares Outstanding based
on 6,050,000 shares of Common Stock
Strike Price Options outstanding
------------ ------- -----------
$ 4.00 50,000 0.8264%
$ 6.00 40,000 0.6612%
$ 8.00 60,000 0.9917%
$ 10.00 80,000 1.3222%
$ 12.00 160,000 2.6445%
$ 14.00 240,000 3.9669%
10.4129%