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EXHIBIT 10.2
CONSULTING AGREEMENT BETWEEN
UC'NWIN SYSTEMS CORPORATION AND
MARK H. ELLERT, DATED JULY 15, 1996
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CONSULTANT AGREEMENT
This Consultant Agreement is effective as of 15th day of July, 1996
by and between UC'NWIN Systems Corporation of 5601 North Powerline Road, Suite
404, Ft Lauderdale, Florida 33309 ("UC'NWIN") and Mark H. Ellert of 10
Edgewater Drive, Coral Gables, Florida 33133 ("Consultant").
RECITALS
WHEREAS, Consultant has been working with UC'NWIN without a written
Consultant agreement up to the date of this Agreement. Consultant and UC'NWIN
have agreed to finalize the terms of Consultants agreement and UC'NWIN and
reduce those terms to writing in this Agreement.
WHEREAS, Consultant is one of the founders of Interlink Asset Group,
and has acquired outstanding and special skills and abilities and an extensive
background in and knowledge of UC'NWIN's business and the hotel industry as
they relate together.
WHEREAS, UC'NWIN desires assurance of the continued association and
services of Consultant in order to retain his experience, skills, abilities,
background, and knowledge, and is therefore willing to engage his services on
the terms and conditions set forth below. UC'NWM does acknowledge that the
Consultant is an independent contractor and is free to engage in other
businesses.
WHEREAS, Consultant desires to continue consulting for UC'NWIN and is
willing to do so on those terms and conditions set forth herein.
NOW THEREFORE, in consideration of the above recitals and the mutual
promises and conditions in this Agreement and other good and valuable
considerations, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
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1. CONSULTANT. UC'NWIN shall contract with Consultant in such
capacity or capacities UC'NWIN's Board of Directors may from time to time
prescribe.
2. CONSULTANT'S DUTIES.
2.1 Duties at UC'NWIN: Consultant shall, from time to
time, act as the hotel industry Consultant for UC'NWIN. Consultant shall
possess the power and authority to direct UC'NWIN in the hotel industry,
subject to either the authority of UC'NWIN's Board of Directors or the
President. Consultant shall assist in the establishment of methods by which
UC'NWIN will utilize the hotel industry as a means of income production for
UC'NWIN.
3. TERM OF AGREEMENT. Subject to earlier termination as provided
in this Agreement, Consultant shall be employed for a term beginning July 15,
1996 and ending July 15, 1997.
4. COMPENSATION. UC'NWIN shall pay compensation to Consultant in
the following amounts and on the following terms:
4.1 Initial Payment. As consideration and inducement for
Consultant to become employed by UC'NWIN. UC'NWIN shall pay Consultant (i) a
one time payment of 450,000 shares of unrestricted stock, ("the Shares"), which
sum shall be payable upon execution of this Agreement by both parties and (ii)
options to purchase 450,000 shares of Common Stock which options shall have an
exercise price of $2.50 per share and shall have a term of 3 years, ("the
Options"). The corporation shall register the Shares and the Shares of the
Common Stock upon the exercise of the Options (the "Underlying Shares"), under
the Securities Act of 1933, as amended, on Form S-8 within thirty (30) days of
the execution of this agreement. The Shares and the Options shall be issued to
the Consultant on the first business day after the registration statement is
effective.
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4.2 Additional Compensation. For all services rendered
by Consultant in any capacity during the term of this Agreement, UC'WIN shall
pay Consultant additional compensation as agreed upon by Consultant and
UC'NWIN, dependent upon the time Consultant allocates to the business, and
subject to a written confirmation of the services and each subsequent business
transaction which Consultant causes. In the event there is no written
confirmation of subsequent activity, then in that event, it will be presumed
that the compensation for that service is covered by the initial payment as set
forth in paragraph 4. 1.
5. EXPENSE REIMBURSEMENT. During the agreement term, UC'NWIN
shall reimburse Consultant for reasonable out-of-pocket expenses incurred in
connection with UC'NWIN's business, including travel expenses, food, and
lodging when carrying out business outside of Dade and Broward Counties,
Florida, ("out of town expenditures"), subject to prior written approval of
such expenditures, and if no such prior written approval is executed, then in
that event it shall be presumed that such "out of town" expenditures are
compensated by way of the initial payment as set forth in paragraph 5.1 above.
6. TERMINATION BY UC'NWIN. UC'NWIN may terminate this Agreement,
without cause and without penalty, by giving Consultant fifteen (I 5) days
prior written notice of resignation.
7. TERMINATION BY -CONSULTANT. Consultant may terminate this
Agreement, without cause and without penalty, by giving UC'NWIN fifteen (I 5)
days prior written notice of resignation.
8. NOTICE OF COMPELLED. DISCLOSURE. If at anytime Consultant
becomes legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand, or similar process or otherwise) to
disclose any of the Confidential Information, Consultant shall provide UC'NWIN
with prompt, prior written notice of such requirement so that UC'NWIN may seek
a protective order or other appropriate remedy and/or waive compliance with the
terms of this Agreement. Consultant shall not oppose action by UC'NWIN to
obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information.
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8.1 Assurance of Compliance. Consultant agrees to
represent to UC'NWIN in writing, at the time that UC'NWIN so requests, but no
more frequently than every six months, that Consultant has complied to the best
of its knowledge with the provisions of this section, or any other section of
this Agreement.
9. MISCELLANEOUS:
9.1 Authority to Execute. The parties herein represent
that they have the authority to execute this Agreement.
9.2 Severability. If any term, provision, covenant, or
condition of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the rest of this Agreement shall remain in
full force and effect.
9.3 Successors, This Agreement shall be binding on and
inure to the benefit of the respective successors, assigns and personal
representatives of the parties, except to the extent of any contrary provision
in this Agreement.
9.4 Assignment. This Agreement may not be assigned by
either party without the written consent of the other party.
9.5 Singular, Plural and Gender interpretation. Whenever
used herein, the singular number shall include the plural, and the plural
number shall include the singular. Also, as used herein, the masculine,
feminine or neuter gender shall each include the others whenever the context so
indicates.
9.6 Captions. The subject headings of the paragraphs of
this Agreement are included for purposes or conveniences only, and shall not
effect the construction or interpretation of any of its provisions.
9.7 Entire Agreement. This Agreement contains the entire
agreement of the parties relating to the rights granted and the obligations
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assumed in this instrument and supersedes any oral or prior written agreements
between the parties. Any oral representations or modifications concerning this
instrument shall be of no force or effect unless contained in a subsequent
written modification signed by the party to be charged.
9.8 Arbitration. Any controversy or claim arising out of,
or relating to this Agreement or the making, performance or interpretation
thereof, shall be submitted to a panel of three (3) arbitrators. The
arbitration shall comply with and be governed by the provisions of the American
Arbitration Association. The panel of arbitrators shall be composed of two (2)
members chosen by Consultant and UC'NWIN respectively and one (1) member chosen
by the arbitrators previously selected. The findings of such arbitrators shall
be conclusive and binding on the parties hereto. The cost of arbitration shall
be borne by the losing party or in such proportions as the arbitrator shall
conclusively decide.
9.9 No Waiver. No failure by either Consultant or UC'NWIN
to insist upon the strict performance by the other of any covenant, agreement,
term or condition of this Agreement or to exercise the right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach
or of any such covenant, agreement, term or condition. No waiver of any breach
shall affect or alter this Agreement, but each and every covenant, condition,
agreement and term of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent breach.
9.10 Time of the Essence. Time is of the essence of this
Agreement, and each provision hereof.
9.11 Counterparts. The parties may execute this Agreement
in tow (2) or more counterparts, which shall, in the aggregate, be signed by
both parties, and each counterpart shall be deemed an original instrument as to
each party who has signed by it.
9.12 Attorney's Fees and Costs. In the event that suit be
brought hereon, or any attorney be employed or expenses be incurred to compel
performance, the parties agree that the prevailing party therein be entitled to
reasonable attorney's fees.
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9.13 Governing Law. The formation, construction and
performance of this Agreement shall be construed in accordance with the laws of
the State of Florida.
9.14 Notice. Any notice, request, demand or other
communication required or permitted hereunder or required by law shall be in
writing and shall be effective upon delivery of the same in person to the
intended addressee, or upon deposit of the same with an overnight courier
service (such as Federal Express) for delivery to the intended addressee at its
address shown herein, or upon deposit of the same in the United states mail,
postage prepaid, certified or registered mail, return receipt requested, sent
to the intended addressee at its address shown herein. The address of any
party to this Agreement may be changed by written notice of such other address
given in accordance herewith and actually received by the other parties at
least ten (IO) days in advance of the date upon which such change of address
shall be effective.
IN WITNESS WHEREOF, the parties have entered into this
Agreement on the date first above written.
CONSULTANT:
/s/ Mark H. Ellert
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Mark H. Ellert
Date: 7-9-96
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UC'NWIN Systems Corporation:
/s/ John Neilson
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John Neilson
President
Date: July 19th, 1996
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