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CONSULTING AGREEMENT WITH AURA (PVT.) LTD.
EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective this 17th day of
December, 1998, between Aura (Pvt.) Ltd., with offices at 65 C 1, ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Consultant") and The Tracker Corporation of America, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Client").
RECITALS
WHEREAS, Client desires to retain Consultant to provide consultancy,
advisory, and introduction services, including setting up meetings with
financial institutions, expanding retail brokerage coverage, advising on company
presentations, expanding European shareholder exposure, increasing analyst
coverage, helping gain press/media exposure and related corporate activities;
WHEREAS, Client desires to retain Consultant to perform these services
for the period as specified below;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Client and Consultant
agree as follows:
1. ENGAGEMENT OF CONSULTANT
Client hereby retains Consultant to provide consultancy, advisory, and
introduction services, including setting up meetings with financial
institutions, expanding retail brokerage coverage, advising on company
presentations, expanding European shareholder exposure, increasing analyst
coverage, helping gain press/media exposure and related corporate activities.
All of the foregoing services collectively are referred to herein as the
"Consulting Services." Consultant accepts Client's engagement and agrees to
perform the consulting service set forth in this section.
2. COMPENSATION
Client shall pay Consultant two million (2,000,000) shares of Client's Common
Stock. Consultant is fully aware and understands that the value of Consultant's
compensation as defined by the Agreement is variable and may be altered by
natural market forces of Client's stock and that such an agreement is acceptable
to Consultant. The Client shall use its best efforts to register all Common
Stock and Options payable to Consultant under this Agreement pursuant to a
Regulation S-8 filing with the Securities and Exchange Commission, on a timely
basis.
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3. TERM OF AGREEMENT, EXTENSIONS AND RENEWALS
This Consulting Agreement and Consultant's obligation to continue providing
Consulting Services, as defined herein, shall remain in full force and effect
for one (1) year from the date of signing this Agreement. Client shall retain
the exclusive right to determine in its judgment whether any extension or
renewal shall be granted to Consultant.
4. TERMINATION OF AGREEMENT BY THE CLIENT
Despite anything to the contrary contained in this Agreement hereunder, Client
may terminate this Agreement and Consultant's consulting arrangement if in the
judgment of a third party, disinterested and duly appointed Mediator,
Consultant's actions or conduct would make it unreasonable to require Client to
retain Consultant. Said Mediator shall have been elected by mutual agreement of
both Client and Consultant. Such acts include, but are not limited to,
dishonesty, illegal activities, activities harmful to the reputation of the
Client, and/or activities which create civil or criminal liability for the
Client.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
In consideration for the Client entering into this Agreement, Consultant agrees
that the following items used in the Client's business are secret, confidential,
unique, and valuable, were developed by Client at great cost and over a long
period of time, and disclosure of any of the items to anyone other than Client's
officers, agents, or authorized employees will cause Client irreparable injury:
A. Nonpublic financial information, accounting information, plans of
operation, possible mergers or acquisitions prior to the public
announcement;
B. Customer lists, call lists, and other confidential customer data;
C. Memoranda, notes, records concerning the technical processes
conducted by Client;
D. Sketches, plans, drawings and other confidential research and
development data.
Neither party shall disclose or otherwise reveal to any third party without the
express written consent of the other party the specific terms or existence of
this Agreement, except where required by law.
6. DUE DILIGENCE
Client shall supply and deliver to Consultant information relating to its
business, as may be reasonably requested by Consultant, to enable Consultant to
make such investigation of Client and its business prospects. Client shall also
make available to Consultant names, addresses, and
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telephone numbers as Consultant may need to verify or substantiate any such
information provided.
7. BEST EFFORTS BASIS
Consultant agrees that it will at all times faithfully and to the best of its
experience, ability and talents, perform all the duties that may be required of
and from Consultant pursuant to the terms of this Agreement. Consultant does not
guarantee that its efforts will have any impact on Client's business or that any
subsequent financial improvement will result from Consultant's efforts.
8. CLIENT'S RIGHT TO APPROVE CONSULTANT'S ACTIONS
Client expressly retains the right to approve, in its sole discretion, each and
every transaction entered into by Consultant that involves Client as a party.
Consultant and Client mutually agree that Consultant is not authorized to enter
into agreements on behalf of Client.
9. EXPENSE
Client shall reimburse Consultant for all pre-approved expenses.
10. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
Consultant hereby represents and warrants to Client that:
A. Prior Experience. Consultant has extensive experience in the
areas of the services it is to perform hereunder and has
performed the services contemplated by this Agreement.
B. Information. No representation or warranty contained herein nor a
statement in any document, certificate or schedule furnished or to
be furnished pursuant to this Agreement by Consultant, or in
connection with the transaction contemplated hereby, contains or
contained any untrue statement of material fact.
C. Prior Consent to Marketing Publications. Consultant agrees to
provide Client with a facsimile copy or original transcript of
any publication, writing, sound recording or any other media
type (collectively referred to herein as "Media") created by
Consultant or any agent or assign of Consultant, where such Media
is needed to be used for marketing of Client or Client's
business. Consultant shall obtain Client's approval on the use of
any such Media prior to disseminating Media to any third parties.
11. CONSULTANT IS NOT AN AGENT OR EMPLOYER
Consultant's obligations under this Agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered to act as
the agent of Client or
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otherwise represent or bind Client. For purposes of this Agreement, Consultant
is an independent contractor. All final decisions with respect to acts of Client
or its affiliates, whether or not made pursuant to or in reliance on information
or advice furnished by Consultant hereunder, shall be those of Client or such
affiliates and Consultant shall under no circumstances be liable for any expense
incurred or loss suffered by Client as a consequence of such action or
decisions.
12. MISCELLANEOUS
A. Authority. The execution and performance of this Agreement has been
duly authorized by all requisite corporate action. This Agreement
constitutes a valid and binding obligation of the parties hereto.
B. Amendment. This Agreement may be amended or modified at any time and
in any manner but only by an instrument in writing executed by the
parties hereto.
C. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and
remedies provided by law. No delay or failure on the part of either
party in the exercise of any right or remedy arising from a breach
of this Agreement shall operate as a waiver of any subsequent right
or remedy arising from a subsequent breach of this Agreement. The
consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or
occurrence.
D. Assignment. Neither party to this Agreement may not assign any right
or obligation created hereunder without the prior written consent of
the other;
E. Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party,
when deposited in the United States mails for transmittal be
certified or registered mail, postage prepaid or when deposited with
a public telegraph company for transmittal or when sent by facsimile
transmission, charges prepaid, to the addresses set forth above, or
to such other person or address designated by the parties to receive
notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any heading and
the text of this Agreement, the text shall control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties with
respect to the transaction contemplated by the Agreement. It may be
executed in any number of counterparts but the aggregate of the
counterparts together constitute only one and the same instrument.
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H. Effect of Partial Invalidity. In the event that any one or more of
the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
constructed as if it never contained any such invalid, illegal or
unenforceable provisions.
I. Controlling Law. The validity, interpretation and performance of
this Agreement shall be controlled by and construed under the laws
of the State of Georgia.
J. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fees from the other party. The
attorney's fees may be ordered by the court in the trial of any
action described in this paragraph or may be enforced in a separate
action brought for determining attorney's fees.
K. Time is of the Essence. Time is of the essence for each and every
provision hereof this Agreement and of each and every provision of
this Agreement.
L. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute
each other and further documents and take such other and further
actions as may be necessary or convenient to effect the transactions
described herein.
M. Further Actions. At any time and from time to time, each party
agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
N. Indemnification.
(a) The Client shall indemnify and hold harmless the Consultant,
from and against any and all losses, claims, liabilities, expenses
and damages, joint or several (including any and all investigative,
legal and other expenses reasonably incurred in connection with, and
any amount paid in settlement of, any action suit or proceeding or
any claim asserted) to which it, or any of them may become subject
under the Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i)
any untrue statement or alleged untrue statement of any material
fact contained in (A) any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement or
supplement to the Registration Statement or the Prospectus and (B)
any application or other document, or any amendment or supplement
thereto, executed by the Client based upon written information
furnished by or on behalf of the Client filed in any jurisdiction in
order to qualify the Shares under the
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securities or Blue Sky laws thereof or filed with the Commission or
any securities association or securities exchange (each, an
"Application") or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or any supplement to the Registration Statement or the
Prospectus or any Application a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided
however that such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of the Consultant to the
extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission of a material fact
contained in such Preliminary Prospectus that was corrected in the
Prospectus (or any amendment or supplement thereto), unless such
failure to deliver the Prospectus (as amended or supplemented) was
the result of noncompliance by the Client with its agreement to
deliver such amended Prospectus to the Consultant. This indemnity
agreement will be in addition to any liability which the Client may
otherwise have. The Client will not, without the prior written
consent of the Consultant (which consent will not be unreasonably
withheld), settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought
hereunder (whether or not the Consultant is a party to each claim,
action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Consultant from all
liability arising out of such claim, action, suit or proceeding.
(b) The Consultant shall indemnify and hold harmless the Client,
and its directors, officers, associates, affiliates, employees and
agents, and each person, if any, controlling the Client or any of
its affiliates, within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "Act") or Section 20 of the Exchange
Act of 1935, as amended (the "Exchange Act"), from and against any
and all losses, claims, liabilities, expenses and damages, joint or
several (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid
in settlement of , any action, suit or proceeding or any claim
asserted) to which it, or any of them, may become subject under the
Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on any statement or
alleged statement made by the Consultant which is not based upon
information furnished to the Consultant by the Company.
(c) A party that proposes to assert the right to be indemnified
under this Section will promptly after receipt of notice of
commencement of any action against such party in respect of which a
claim is to be made against an indemnifying party or parties under
this Section, notify such indemnifying party of the commencement of
such action, enclosing a copy of all papers served, but the omission
so to notify the indemnifying party will not relieve it from any
liability that is may have to any indemnified party under the
foregoing provisions of this Section unless, and
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only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the
indemnified party, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided
below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with
the defenses. The indemnified party will have the right to employ
its own counsel in any such action, but the fees, expenses, and
other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it
that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the
indemnifying party shall not in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of ore than one
separate firm admitted to practice in such jurisdiction at any one
time for such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred.
(d) The Client will not, without the prior written consent of the
Consultant (which consent will not be unreasonably withheld), settle
or compromise or consent tot he entry of any judgment in any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the
Consultant is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an
unconditional release of the Consultant from all liability arising
out of such claim, action, suit, or proceeding. An indemnifying
party will not be liable for any settlement or any action or claim
effected without its written consent (which consent will not be
unreasonably withheld).
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(e) The Consultant will not, without the prior written consent of
the Client (which consent will not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment in any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Client
is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release
of the Client from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party will not be liable for any
settlement or any action or claim effected without its written
consent (which consent will not be unreasonably withheld).
O. No Third Party Beneficiary.
Nothing in this Agreement, expressed or implied, is intended to
confer upon any person, other than the parties hereto and their
successors, any rights or remedies under or by reason of this
Agreement, unless this Agreement specifically states such intent.
P. Facsimile Counterparts.
If a party signs this Agreement and transmits an electronic
facsimile of the signature page to the other party, the party who
receives the transmission may rely upon the electronic facsimile as
a signed original of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 17th day of December, 1998.
Client:
The Tracker Corporation of America
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
Consultant:
Aura (Pvt.) Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
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