INDEPENDENT CONTRACTOR AGREEMENT
This independent contractor engagement agreement ("Agreement") dated
the 20th day of April, 2001 by and between Jaime Luis Perez Marquez
("Consultant"), whose address is Universo 800, Col. Jardines del
Bosque, Guadalajara, Jal., 44520, Mexico, and Lexington Barron
Technologies, Inc. (Company), a Colorado corporation whose address is
102 S. Tejon Street Avenue, Suite 1100, Colorado Springs, CO 80933.
WHEREAS, Consultant assists companies with Capital Formation,
Technology Consulting, Human Resource Management Services and Investor
Relations; and,
WHEREAS, Company wishes to engage the services of Consultant;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the parties hereto agree as follows:
1. Consultant will assist the Company in connection with its
business endeavors in the fields of business plan creation and
review, strategy consulting, and other such services that are
mutually agreed upon by both parties from time to time. This
Agreement does not constitute a commitment nor an undertaking on
the part of Consultant to internally ensure the successful
procurement of financing. As consultants to the Company,
Consultant will assist with the following:
(a) Business Plan Creation: Within 30 days from when Consultant
receives the necessary information about the Company - which
shall include the current business plan, revenue estimates,
capital structure, incorporation dates and any other
information requested by Consultant - Consultant shall
provide the Company with a business plan (hereafter "BP") and
any relevant sales pieces to utilize in investor
presentations. Such documentation is subject to approval by
the Company's legal representation before being utilized to
obtain investor capital.
(b) Capital Formation Assistance: Consultant agrees to assist the
Company with investor presentations and any other related
consulting services as needed for a period of 60 days after
delivery of the Company's BP. Consultant will act only as
consultants and it is the responsibility of the Company and
its legal representation to obtain funding from the sale of
equity or debt instruments.
(c) Strategic Relationship Development: Consultant will make
recommendations as to parties to use for legal and accounting
work that meets United States Securities and Exchange
Commission (hereafter "SEC") requirements and standards.
Consultant will also negotiate on behalf of the Company any
such terms of payment to legal and accounting parties.
2. The retention by the Company of Consultant as heretofore
described shall be for a period of not less than two months from
the date hereof in order to provide Consultant a reasonable
opportunity to perform its services (as outlined above).
Following this two month period, this Agreement will
automatically renew on a month-to-month basis unless terminated
by either party upon 30 day advanced written notice.
3. Any parties introduced to the Company by Consultant, even if
declining participation hereby, shall be deemed a "Protected
Party" and thereafter the Company shall not directly deal with
the Protected Party without the prior written consent of
Consultant.
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4. In connection with Consultant's activities on the Company's
behalf, the Company will cooperate with Consultant and will
furnish Consultant with all information and data concerning the
Company (the "Information"), which Consultant deems appropriate
and will provide Consultant with access to the Company's
officers, directors, employees, independent accountants, and
legal counsel. The Company represents and warrants that all
Information made available to Consultant by the Company will, at
all times during the period of engagement of Consultant
hereunder, be complete and correct in all material respects and
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances under which such statements are made. The Company
further represents and warrants that any projections provided by
it to Consultant will have been prepared in good faith and will
be based upon assumptions, which, in light of the circumstances
under which they are made, are reasonable. The Company
acknowledges and agrees that, in rendering its services
hereunder, Consultant may be using and relying on the Information
without independent verification thereof by Consultant or
independent appraisal by Consultant of any of the Company's
assets. Consultant does not assume responsibility for any
information regarding the Company. Any recommendations rendered
by Consultant pursuant to this Agreement may not be disclosed
publicly without our prior written consent.
5. In consideration of its services pursuant to this Agreement,
Consultant shall be entitled to receive, and the Company agrees
to pay Consultant, consulting fees according to the attached
Schedule A, which may change from time to time with ample notice
provided to the Company before any changes that may effect the
course or charges for services rendered by Consultant.
6. In addition to the consideration paid as described in Paragraph 5
above, Consultant agrees that it will charge the Company for any
added expenses only if such expenses are pre-approved by the
Company. The Company agrees to promptly reimburse Consultant,
upon request, for all such pre-approved expenses incurred by
Consultant (which may include fees and disbursements of counsel,
and of other consultants and advisors retained by Consultant) in
connection with the matters contemplated by this Agreement.
7. Either party hereto may terminate this Agreement at any time upon
30 days' prior written notice, following the initial engagement
period as stated in Paragraph 2 without liability or continuing
obligation, except as set forth in the following sentence.
Neither termination of this Agreement nor completion of the
assignment contemplated hereby shall affect: (i) any compensation
earned by Consultant up to the date of termination or completion,
as the case may be, (ii) the reimbursement of expenses incurred
by Consultant up to the date of termination or completion, as the
case may be, (iii) the provisions of Paragraphs 5 through 8 of
this Agreement and (iv) the attached Indemnification Provisions
which are incorporated herein, all of which shall remain
operative and in full force and effect.
8. Should this Agreement be terminated by either party as described
in Paragraph 2 and Paragraph 7, Consultant will keep one-twenty-
fourth (1/24) of the equity position (including warrants) for
each month that Consultant was retained. Consultant agrees that
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such equity holdings will not fully vest until after two (2)
years from the date of its issuance. In the case of termination,
Consultant agrees to return its stock certificates minus the
equity (including warrants) that are to be kept as described
above in this paragraph.
9. The Company agrees to indemnify and hold harmless Consultant
against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses, and
disbursements (and any and all actions, suits, proceedings, and
investigations in respect thereof and any and all legal and other
costs, expenses, and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise),
including, without limitation the costs, expenses, and
disbursements, as and when incurred, of investigating, preparing,
or defending any such action, suit, proceeding, or investigation
(whether or not in connection with litigation in which Consultant
is a party), directly or indirectly, caused by, relating to,
based upon, arising out of, or in connection with Consultant's
acting for the Company, including, without limitation, any act or
omission by Consultant in connection with its acceptance of or
the performance or non-performance of its obligations under this
Agreement; provided, however, such indemnity shall not apply to
any portion of any such loss, claim, damage, obligation, penalty,
judgment, award, liability, cost, expense, or disbursement to the
extent it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the willful misconduct of Consultant.
The Company also agrees that Consultant shall not have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with the
engagement of Consultant, except to the extent that any such
liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted
primarily and directly from Consultant's willful misconduct.
These indemnification provisions shall be in addition to any
liability which the Company may otherwise have to Consultant or
the persons indemnified below in this sentence and shall extend
to the following: Consultant, its affiliated entities, directors,
officers, employees, legal counsel, agents, and controlling
persons (within the meaning of the federal securities laws). All
references to Consultant in these indemnification provisions
shall be understood to include any and all of the foregoing.
If any action, suit, proceeding, or investigation is commenced,
as to which Consultant proposes to demand indemnification, it
shall notify the Company with reasonable promptness; provided,
however, that any failure by Consultant to notify the Company
shall not relieve the Company from its obligations hereunder.
Consultant shall have the right to retain counsel of its own
choice to represent it, and the Company shall pay the fees,
expenses, and disbursements of such counsel; and such counsel
shall, to extent consistent with its professional
responsibilities, cooperate with the Company and any counsel
designated by the Company. The Company shall be liable for any
settlement of any claim against Consultant made with the
Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the prior
written consent of Consultant, settle or compromise any claim, or
permit a default or consent to the entry of any judgment in
respect thereof, unless such settlement, compromise, or consent
includes, as an unconditional term thereof, the giving by the
claimant to Consultant of an unconditional release from all
liability in respect of such claim.
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10. The Company understands that to the extent Consultant utilizes
any third parties that these third parties constitute the
proprietary intellectual property of Consultant. Such contacts,
partners and related information represent a substantial value to
Consultant that Consultant uses to offer services to clients and
retain a competitive advantage in the marketplace. Therefore the
Company aggress to work with Consultant, and agrees not to
circumvent in any manner, directly or indirectly, Consultant with
regard to any third parties, clients or contacts that have been
identified by Consultant, or Consultant's clients or contacts.
All contacts, discussions and resources with all identified third
parties or partners of Consultant shall be conducted by, through
or in conjunction with Consultant. Written confirmation
identifying an introduction will be provided by Consultant.
Company agrees that electronic mail may be used for this purpose.
The Company agrees that this non-circumvention clause will remain
in effect for a period of not less than 18 months following the
termination of this agreement by either party.
11. The validity and interpretation of this Agreement shall be
governed by the laws of the State of Colorado applicable to
agreements made and to be fully performed therein. The Company
irrevocably submits to the jurisdiction of any court of the State
of Colorado for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated hereby, which is brought
by or against the Company and (i) hereby irrevocably agrees that
all claims in respect of any such suit, action, or proceeding may
be heard and determined in any such court and (ii) to the extent
that the Company has acquired, or hereafter may acquire, any
immunity from jurisdiction of any such court or from any legal
process therein, the Company hereby waives, to the fullest extent
permitted by law, such immunity. The Company hereby waives, and
agrees not to assert in any such suit, action, or proceeding, in
each case, to the fullest extent permitted by applicable law, any
claim that (a) the Company is not personally subject to the
jurisdiction of any such court, (b) the Company is immune from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution, or
otherwise) with respect to the Company's property or (c) any such
suit, action, or proceeding is brought in an inconvenient forum.
12. The benefits of this Agreement shall inure to the respective
successors and assigns of the parties hereto and of the
indemnified parties hereunder and their successors and assigns
and representatives, and the obligations and liabilities assumed
in this Agreement shall be binding upon their respective
successors and assignees.
13. For the convenience of the parties hereto, any number of
counterparts of this Agreement may be executed by the parties
hereto. Each such counterpart shall be, and shall be deemed to
be, an original instrument, but all such counterparts taken
together shall constitute one and the same Agreement. This
Agreement may not be modified or amended except in writing signed
by the parties hereto.
14. Services provided by Consultant to and on behalf of the Company
in connection with this Agreement will be suspended forthwith in
the event of nonpayment of fees or expenses.
15. Consultant hereby represents and warrants as follows:
(a) Consultant is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of
Colorado, and has the corporate power and is duly authorized
to carry on its businesses where and as now conducted and to
own, lease, and operate its assets as it now does.
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(b) The execution, delivery, and performance by Consultant of
and the consummation of the transactions contemplated in this
Agreement have been duly and validly authorized by the Board
of Directors of Consultant, and Consultant represents and
warrants that it has the right, power, legal capacity, and
authority to enter into and perform its obligations under this
Agreement, and that no consent or approval of, notice to, or
filing with any governmental authority having jurisdiction
over any aspect of the business or assets of Consultant, and
no consent or approval of or notice to any other person or
entity is required in connection with the execution and
delivery by Consultant of or the consummation by Consultant of
the transactions contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement
by Consultant and the consummation of the transactions
contemplated hereby and thereby, do not and will not result in
or constitute (i) a breach of any term or provision of this
Agreement; (ii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of the Articles of Incorporation or Bylaws of
Consultant; (iii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of any lease, license, promissory note, security
agreement, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which
Consultant is a party or by which it or any of its assets are
bound; (iv) an event that would permit anyone to terminate or
rescind any agreement or to accelerate the maturity of any
indebtedness or other obligations of Consultant; or (v) the
creation or imposition of any lien, charge, or encumbrance on
any of the assets of Consultant.
16. The Company hereby represents and warrants as follows:
(a) Company is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of
Colorado, and has the corporate power and is duly authorized
to carry on its businesses where and as now conducted and to
own, lease, and operate its assets as it now does.
(b) The execution, delivery, and performance by Company of and
the consummation of the transactions contemplated in this
Agreement have been duly and validly authorized by the Board
of Directors of Company, and Company represents and warrants
that it has the right, power, legal capacity, and authority to
enter into and perform its obligations under this Agreement,
and that no consent or approval of, notice to, or filing with
any governmental authority having jurisdiction over any aspect
of the business or assets of Company, and no consent or
approval of or notice to any other person or entity is
required in connection with the execution and delivery by
Company of or the consummation by Company of the transactions
contemplated in this Agreement.
(c) The execution, delivery, and performance of this Agreement
by Company and the consummation of the transactions
contemplated hereby and thereby, do not and will not result in
or constitute (i) a breach of any term or provision of this
Agreement; (ii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of the Articles of Incorporation or Bylaws of
Company; (iii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a
default, breach, or violation of any of the terms, conditions,
or provisions of any lease, license, promissory note, security
agreement, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Company
is a party or by which it or any of its assets are bound; (iv)
an event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of Company; or (v) the creation or
imposition of any lien, charge, or encumbrance on any of the
assets of Company.
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17. In its performance hereunder, Consultant and its agents shall be
an independent contractor. Consultant shall complete the
services required hereunder according its own means and methods
of work, shall be in the exclusive charge and control of
Consultant and shall not be subject to the control or supervision
of the Company, except as to the results of the work. Company
acknowledges that nothing in this Agreement shall be construed to
require Consultant to provide services to Company at any specific
time, or in any specific place or manner. Payments to Consultant
hereunder shall not be subject to withholding taxes or other
employment taxes as required with respect to compensation paid to
an employee.
All notices and writings, required or given pursuant to this
Agreement, shall be signed by the party relying thereon to be sent by
prepaid postal mail rates or by facsimile transmission, to a location
or number set forth below:
Lexington Barron Technologies, Inc. Jaime Luis Perez Marquez
- ------------------------------------ -------------------------
A) Lexington Barron Technologies, Inc. B) Jaime Luis Perez Marquez
102 S. Tejon Street Avenue, Suite 1100 Universo 800, Col.
Colorado Springs, CO 80933 Jardines del Bosque
Tel: (719) 381-1728 Guadalajar, Jal. 44520
Fax: (435) 203-9028 Mexico
Email: Tel: (303) 265-9815
Fax: (303) 265-9815
Email:
In witness whereof the parties have set their hands and seals as of
the date first written above.
Lexington Barron Technologies, Inc. Jaime Luis Perez Marquez
- ------------------------------------ -------------------------
By: Phillip W. Kilgore By: Jaime Luis Perez Marquez
Signature: /s/ Phillip W. Kilgore Signature: Jaime Luis Perez Marquez
----------------------- -------------------------
Title: Chief Executive Officer Title: Independent Contractor
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SCHEDULE A
A. Service Fee. The Company will engage Consultant for the services
described in this Agreement. The service fee charged to the
Company for this service is $15,000.00 (fifteen thousand dollars)
and is payable in any mixture of the following forms at
Consultant's discretion:
(i) By Company check made payable to: Jaime Luis Perez Marquez;
(ii) Money order or cashier's check;
(iii) Stock-based compensation
The Company agrees to pay one thousand one hundred dollars
($1,500.00), which is equivalent to ten percent (10%) of the
total fee, as an up front payment. The Company agrees to make
such payment within ten (10) days of the signing of this
Agreement.
After forty-five days of the signing of this agreement, the
Company agrees to pay the remainder of this fee, or $13,500.00.
B. Private Placements, Public Offerings, Reviews, Fees and Warrants
as follows: (i) Consultant shall receive ten percent (10%) of the
proceeds raised as a result of its capital formation assistance
as described in this Agreement; (ii) Consultant shall receive
ten percent (10%) of any funds it helps raise in a public
offering and shall receive such payment in the form of common
stock.
C. Jaime Luis Perez Marquez deliverables: Consultant's efforts and
services will focus on the following areas:
(i) Market research
(ii) Business Plan creation
(iii) Capital formation consulting
(iv) Developing strategic relationships as appropriate and required
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