CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of February 23,
2001 between InterSpace Enterprises ("InterSpace"), a Colorado corporation, and
Steven Antebi (the "Consultant").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purpose. InterSpace hereby engages Consultant as an independent consultant
(and not as an agent, employee, partner or joint venturer)
during the term specified hereinafter to render consulting advice to
InterSpace upon the terms and conditions as set forth herein.
2. Term. This Agreement commenced effective as of February 23, 2001 through a
period ending on April 30, 2001 (the "Term"), provided that InterSpace may
terminate this Agreement at any time for any reason upon 30 days' prior
written notice to the Consultant; provided further that the provisions of
Sections 4 and 11-17 inclusive will survive termination of this Agreement.
3. Duties of Consultant.
(a) During the Term, Consultant will provide InterSpace with such
consulting advice as is reasonably requested by InterSpace with
respect to financial planning and the development of a business plan
as is reasonably requested by InterSpace. In performance of these
duties, Consultant will provide InterSpace with the benefits of its
reasonable judgment and efforts. Consultant's duties will include, but
will not necessarily be limited to the following:
(i) Advice concerning strategic issues, including alliance
partnerships and joint ventures;
(ii) Advice regarding the implementation of InterSpace's goals and
plans; and
(iii)Advice regarding the existing and possible alternative financial
structures for InterSpace;
(iv) Advice concerning short and long range financial planning;
(v) Advice regarding the formulation of business and financing goals
and plans;
(vi) Use of Consultant's reasonable best endeavors to comply with all
reasonable requests of InterSpace in relation to the performance
of the duties of the Consultant hereunder.
(b) In connection with rendering its advice hereunder, Consultant and its
employees and agents will be given reasonable access to InterSpace's
officers, premises and records.
(c) InterSpace acknowledges that Consultant's advice pursuant hereto does
not and will not constitute any guarantee or other assurance as to the
ability of InterSpace to accomplish whether in whole or in part any
specific goals or plans of InterSpace.
(d) InterSpace acknowledges that Consultant retains the right to provide
consulting advice to other parties. Nothing herein contained will be
construed to limit or restrict Consultant in conducting such business
with respect to others, or in rendering advice to others or conducting
any other business. During the Term the Consultant will not, however,
provide consulting advice in favor of any other parties engaged in the
same business as InterSpace without prior written consent of
InterSpace, other than to affiliates of InterSpace.
4. Compensation. In consideration for Consultant agreeing to provide and
providing the consulting services to be rendered pursuant to this
Agreement, InterSpace agrees to pay Consultant $540,000 by tendering to
Consultant 3,600,000 shares of common stock of InterSpace (the "shares").
The shares will be issued to Consultant upon execution of this Agreement
The shares will be promptly registered for resale under the Securities
Act of 1933, as amended on Form S-8, but in no event later than two weeks
following the date hereof.
5. Expenses. InterSpace will pay or promptly reimburse Consultant for the
out-of-pocket expenses, including expenses for travel, lodging, and
meals, which (a) are incurred by Consultant in connection with the
performance of services under this Agreement, (b) InterSpace either (i)
authorizes in advance and confirms in writing or (ii) subsequently
determines, in its sole discretion, to be reasonable under the
circumstances, (c) are identified in an invoice submitted to InterSpace,
and (d) are supported by receipts for individual expense items of
Twenty-Five Dollars ($25) or more.
6. Proprietary Information. Consultant agrees that, except as appropriate to
carry out its duties under this Agreement or as required by law (in the
opinion of Consultant's counsel), it will not use or disclose, without
InterSpace's prior consent, any information furnished or disclosed
(whether before or after the date hereof) to Consultant by InterSpace or
its employees, agents or representatives, including without limitation
any of InterSpace's trade secrets or other proprietary information or
information concerning InterSpace's current and any future proposed
operations, services or products; provided that Consultant's obligations
of nonuse and nondisclosure under this provision will not be deemed to
restrict the use and/or disclosure of information that (a) is or becomes
publicly known or within the public domain without a breach of this
agreement, (b) Consultant can establish was known to it prior to its
receipt thereof, or (c) has been or is subsequently disclosed to
Consultant by a third person who is not under an obligation of confidence
to InterSpace or any of its affiliates.
7. Representations and Warranties of InterSpace. InterSpace represents and
warrants to Consultant as follows:
(a) InterSpace is a corporation duly incorporated, validly existing,
and in good standin under the laws of the State of Colorado and
has all corporate power and authority, and all corporate
authorizations, necessary to enable it to enter into this
Agreement and carry out the transactions that are the subject of
this Agreement.
(b) This Agreement is a valid and binding agreement of InterSpace,
enforceable against InterSpace in accordance with its terms.
(c) When issued and registered as provided in this Agreement, the
Shares will be duly and validly issued, fully paid and
nonassessable, free and clear of any liens or encumbrances, and
will be free of restrictions on transfer.
(d) When issued as provided in this Agreement, the Shares will have
been registered with the Securities and Exchange Commission and
qualified in the State of Colorado under the Colorado Corporate
Securities Laws of 1968, as amended, or exempt from such
qualification.
8. Representations and Warranties of InterSpace. The Consultant represents
and warrants to InterSpace that this Agreement is a valid and binding
agreement of the Consultant, enforceable against the Consultant in
accordance with its terms.
9. Assignment. This Agreement and the rights hereunder may not be assigned
by either party (except by operation of law) without prior written
consent of the other party, but, subject to the foregoing limitation,
this Agreement will be binding upon and inure to the benefit of the
respective successors, assigns and legal representatives of the parties.
10. Notices and Other Communications. Any notice or other communication
required or permitted to be given under this Agreement must be in writing
and will be deemed effective when delivered in person or transmitted by a
facsimile process (with a prompt written confirmation) or, if outside the
hours of 9:00 a.m. to 5:00 p.m. on any business day in the jurisdiction
of the addressee, will be deemed to be given at 9:00 a.m. on the next
business day, or on the third business day after the day on which mailed
from within the United States of America, to the following addresses (or
to any other address subsequently specified by the person to whom the
notice or other communication is sent):
If to the Consultant:
Steven Antebi
c/o Fontenelle LLC
345 North Maple Drive, Suite 358
Beverly Hills, Colorado 90210
Facsimile Number: (310) 476-1338
If to the Company:
InterSpace Enterprises
7825 Fay Avenue, Suite 200
La Jolla, CA 92037
Attention: Daniel P. Murphy, President and Chief Executive
Officer
Facsimile Number: (858) 454-2679
With a copy (not constituting notice) to:
Aaron A. Grunfeld, Esq.
Resch Polster Alpert & Berger LLP
10390 Santa Monica Boulevard
Los Angeles, Colorado 90025
Facsimile Number: (310) 552-3209
For the purposes of this Agreement, "business day" will refer to a day
in which trading banks are open for business.
11. Captions. The headings of the sections of this Agreement are intended
solely for convenience of reference and are not intended and will not be
deemed for any purpose whatever to modify or explain or place any
construction upon any of the provisions of this Agreement.
12. Attorneys' Fees. In the event any party hereto will institute an action
to enforce any rights hereunder, the prevailing party in such action will
be entitled, in addition to any other relief granted, to reasonable
attorneys' fees and costs.
13. Entire Agreement. This Agreement, together with the Warrant, constitute
the entire agreement between the parties hereto pertaining to the
consulting relationship of the parties and supersede all prior and
contemporaneous agreements and understandings of the parties, and there
are no representations, warranties or other agreements between the
parties in connection with the subject matter hereof except as
specifically set forth herein. No supplement, modification, amendment,
waiver or termination of this Agreement will be binding unless executed
in writing by the parties hereto. No waiver of any of the provisions of
this Agreement will be deemed or will constitute a waiver of any
provision hereof (whether or not similar), nor will waiver constitute a
continuing waiver.
14. Indemnification by InterSpace and the Consultant.
(a) Consultant hereby agrees to indemnify and save InterSpace and hold
InterSpace harmless in respect of all causes of actions,
liabilities, costs, charges and expenses, loss and damage
(including consequential loss) suffered or incurred by InterSpace
(including legal fees) arising from any negligent act or omission
of the Consultant or its employees, servants and agents and /or
arising from any material breach by Consultant or any of its
employees, servants and agents of any of the terms and conditions
imposed on the Consultant pursuant to this Agreement.
(b) InterSpace hereby agrees to indemnify and save Consultant and hold
Consultant harmless in respect of all causes of actions,
liabilities, costs, charges and expenses, loss and damage
(including consequential loss) suffered or incurred by the
Consultant (including legal fees) arising from any willful or
grossly negligent act or omission of InterSpace or its employees,
servants and agents and/or arising from material breach by
InterSpace or any of its employees, servants and agents of any of
the terms and conditions imposed on InterSpace pursuant to this
Agreement.
(c) No party will be liable to any other party hereunder for any claim
covered by insurance, except to the extent that the liability of
such party exceeds the amount of such insurance coverage. Nothing
in this clause (c) will be construed to reduce insurance coverage
to which any party may otherwise be entitled.
15. Severability. If any provision or portion of a provision of this
Agreement is held to be invalid, illegal or unenforceable under
applicable law, that provision or portion will be excluded from this
Agreement, but only to the extent of such prohibition or
unenforceability, and the balance of the Agreement will be interpreted as
if that provision or portion were so excluded, and will be enforceable in
accordance with its terms.
16. Governing Law. This Agreement will be governed by, and construed under,
the laws of the State of California as applied to agreements among
Colorado residents entered into and to be performed entirely within
California.
17. Counterparts. This Agreement may be executed in counterparts. All of such
counterparts will constitute one and the same agreement. InterSpace and
Consultant agree that facsimile signatures of this Agreement will be
deemed a valid and binding execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this day and year first above written.
Company: InterSpace Enterprises
By: /s/ Daniel Murphy
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Name: Daniel P. Murphy
Title: President and Chief
Executive Officer
Consultant:
/s/ Steven Antebi
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Steven Antebi