EXHIBIT 10
AMENDED CONSULTING AGREEMENT
This Amended Consulting Agreement (the "Agreement") is executed this 1st
day of September, 2000 and effective the 1st day of March, 2000, by and between
FDN, Inc., a Colorado corporation (the "Company") and Kevin Welch, (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. Company hereby engages Consultant as an independent consultant
(and not as an agent) who will provide the services during the term specified
hereinafter to render consulting advice to Company upon the terms and conditions
as set forth herein.
2. Term. This Agreement shall be effective for a period of fifteen (15)
months, commencing on March 1, 2000.
3. Duties of Consultant.
(a) During the term of this Agreement, Consultant will provide Company
with such consulting advice with respect to financial planning, capital
structure issues and the evaluation of financing alternatives as is
reasonably requested by Company. In performances of these duties,
Consultant shall provide Company with the benefits of its reasonable
judgment and efforts. Consultant's duties shall include, but will not be
limited to, the following:
(i) Advice regarding the existing and possible alternative financial
structures for the Company;
(ii) Advice regarding the formulation of financing goals and public
offerings;
(iii)Advice concerning strategic issues, including target acquisitions,
alliance partnerships and joint ventures;
(iv) Advice concerning short and long range financial planning;
(v) Advice regarding the implementation of the Company's goal and plans;
(vi) Advice regarding capital market management.
(vii)To use its reasonable best endeavors to comply with all reasonable
requests of the Company in relation to the performance of the duties
of Consultant hereunder.
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1. In connection with rendering its advice hereunder, Consultant, and
its president, employees and agents shall be given reasonable access to
Company's officers, premises, and records.
2. Company acknowledges that Consultant retains the right to provide
consulting advice to other parties. Nothing herein contained shall 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.
3. Compensation. In consideration for Consultant agreeing to provide
the consulting services to be rendered pursuant to this Agreement, the
Company agrees to issue to Consultant compensation as follows:
(a) Upon execution of this agreement, the Company shall pay
Consultant ten thousand dollars ($10,000) and issue to Consultant five
hundred thousand (500,000) restricted common shares.
(b) Company shall issue consultant a three (3) year option to
acquire five hundred thousand (500,000) common shares of the Company
at an exercise price of three and one/third cents ($0.0333) per share.
Said option shares will be registered with the Securities and Exchange
Commission under Form S-8. Said option shares shall vest one twelfth
(1/12) on the first (1st) of each month during initial twelve (12)
months of the term of this agreement until the entire five hundred
thousand (500,000) common shares have vested on February 1, 2001. To
exercise vested option shares, Consultant will issue written notice to
the Company of the intent to exercise options along with a checks made
payable to the Company for the vested option shares in the sum of
Sixteen Thousand Six Hundred Sixty Six Dollars ($16,666.00).
5. Expenses. Company shall reimburse consultant for reasonable
out-of-pocket expenses incurred by Consultant in connection with the
services rendered by Consultant pursuant to this Agreement, provided such
expenses are approved in advance by the Company.
6. Proprietary Information. Consultant acknowledges and agrees that he
is in a fiduciary relationship with Company and agrees that he will not
sell or use in any manner not authorized in writing by Company, or disclose
any information provided to Consultant by the Company or its employees,
agents, or representatives, including without limitation any of the
Company's trade secrets, technical information, agreements, or other
proprietary information or information concerning the company's current and
any future proposed operations, services, or products, regardless of
whether such information was obtained prior to, during, or after the
engagement of Consultant by the Company pursuant to this Agreement, unless
Consultant is authorized to do so in writing by the Company and/or Company
releases such information to the public via public announcements or
announcements on recognized stock exchanges.
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7. Representation and Warranties of the Company and Consultant. Each
party hereto represents and warrants to the other party hereto as follows:
1. The execution and delivery of this Agreement, the issuance of
shares pursuant hereto and the consummation of the transaction
contemplated hereby (i ) are within the corporate power and authority
of such party, (ii) do not require the approval or consent of any
stockholders or such party, (iii) have been duly authorized by all
necessary corporate action on the part of such party.
8. Termination. The consulting period will continue in accordance with
Section 2 of this Agreement. The Agreement may also be terminated or
extended with the written mutual consent of both parties.
9. Arbitration. Any and all controversies or claims arising out of or
relating to this Agreement shall be settled by binding arbitration in Los
Angeles County in accordance with the rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) may be
entered by any court having jurisdiction thereof. The parties shall be
entitled to discovery in accordance with the provisions of California law
which, by this reference, is made applicable to this Agreement. Nothing
herein shall prohibit either party from seeking injunctive relief in a
court of law while the arbitration is pending.
10. 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, buy, subject to the foregoing limitation, this
Agreement shall be binding upon and inure to the benefit of the respective
successors, assigns, and legal representatives of the parties.
11. Notice. Any notice or other communications between the parties
hereto shall be sufficiently given if sent by certified registered mail,
postage repaid, or by telecopy, if to Company addressed to 2290 Lee Road,
Winter Park, Florida, 32789, or if to Consultant addressed to 2385
Roscomare Rd., Los Angeles, CA 90077, or to such other address as hereafter
designated in writing by one party to the other. Such notice or other
communications shall , if sent by telecopy, be deemed to be given upon
receipt of the confirmation of its proper transmission and if outside the
hours of 9:00 a.m. to 5:00 p.m. on any business day in the jurisdiction of
the addressee, shall be deemed given at 9:00 a.m. on the next business day.
Notices sent by certified or registered mail or prepaid postage shall be
deemed to be received three (3) business days after the date of forwarding
the same. For the purpose of this Agreement, "business day" shall refer to
a day in which trading banks are open for business.
12. Captions. The heading of the sections of this Agreement are
intended solely for convenience of reference and are not intended and shall
not be deemed for any purpose whatsoever to modify or explain or place any
constriction upon any of the provisions of the Agreement.
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13. Attorney's Fees. In the event any party hereto shall institute an
action, including arbitration pursuant to Section 9 of this Agreement, to
enforce any rights hereunder, the prevailing party in such action shall be
entitled, in addition to any other relief granted, to reasonable attorney's
fees and costs.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of
the parties, and there are not representations, warranties, or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth herein.
15. Compliance with Laws. The Consultant shall be solely responsible
to ensure that all activities done by the Consultant or by the Company
pursuant to the written instructions of the Consultant, and all information
disseminated, transactions entered into and the manner of their
dissemination and conduct by the Consultant or by the Company pursuant to
the written instructions of the Consultant, comply with all applicable law.
16. Severability. Any portion of the indemnification and/or
confidentiality provisions herein which may be prohibited or unenforceable
in any applicable jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability, but
shall not invalidate the remaining portions of such provisions or other
provisions hereof of affect any such provisions or portions thereof in any
other jurisdiction.
17. Governing Law. The parties hereto hereby agree that this Agreement
shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
day and year first above written.
CONSULTANT COMPANY
/s/ Kevin Welch /s/ Scott Matthews
- --------------- By: --------------------
Kevin Welch Scott Matthews
Executive Vice President
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