CORPORATE CONSULTING AGREEMENT
This Agreement ("Agreement") dated October 26, 2004 is by and between FTS Group,
Inc. (the "Company"), a Nevada corporation located at 1049c Oxford Valley Rd.,
Levitown, PA 19057 and Theodore J. Smith, Jr. (the "Consultant"), a
Massachusetts resident located at 312 Stuart St, Boston, MA 02116.
WHEREAS, the Company is a publicly traded company engaged in the business of the
retail cellular telecommunication stores.
WHEREAS, Consultant has experience, knowledge and skills with public companies.
WHEREAS, the Company desires to obtain the benefits of Consultant's experience
and know-how in connection with the operation of the Business, and accordingly,
the Company has offered to engage Consultant to render consulting and advisory
services to the Company on the terms and conditions hereinafter set forth;
WHEREAS, Consultant desires to accept such engagement upon such terms and
conditions hereinafter set forth.
NOWTHEREFORE in consideration of the foregoing, the parties agree as follows:
SECTION 1. SERVICES RENDERED
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Consultant shall (i) advise the Company with respect to operations, business
strategy, capital structure and other matters pertaining to the Business as
shall be specified from time to time by the Company's President and/or such
other officer(s) as the Company's Board of Directors shall designate to have
principal responsibility for the operation of the Business and (ii) assist in
reviewing material transactions.
SECTION 2. COMPENSATION
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For services rendered under Section 1, Consultant shall be paid the following,
by the Company:
(a) CONSULTING FEES. In consideration for the availability of Consultant during
the term hereunder and the services rendered pursuant to this Agreement,
promptly upon execution of this Agreement, the Company will issue to Consultant
as payment 1,500,000 (one-million five hundred thousand) fully paid and
non-assessable shares of Common Stock of the Company (the "Shares").
(b) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Consultant for those
reasonable and necessary out-of-pocket expenses which have been approved by the
President of the Company prior to their incurrence and which have been incurred
by Consultant in connection with the rendering of services hereunder. Any
reimbursement to be made by the Company pursuant to this Section shall be made
following submission to the Company by Consultant of reasonable documentation of
the expenses incurred.
(c) REGISTRATION. The Shares issued hereunder shall be promptly registered under
an S-8 Registration Statement.
SECTION 3. RELATIONSHIP OF PARTIES
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This Agreement shall not constitute an employer-employee relationship. It
is the intention of each party that Consultant shall be an independent
contractor and not an employee of the Company. The Company shall not withhold
any amounts therefrom as U.S. federal or state income tax withholding, or as
employee contribution to Social Security or any other employer withholding
applicable under state or federal law.
SECTION 4. TERM
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The term of this Agreement shall be twelve months commencing on the date
and year first above written.
SECTION 5. Reserved
SECTION 6. TERMINATION
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This Agreement may be terminated by either party with or without cause with
thirty days prior written notice given by the terminating party. Termination of
the Agreement does not relieve the Company of its obligation to remunerate
Consultant pursuant to this Agreement, and the Shares issued to Consultant upon
execution of this Agreement shall be non-refundable. Upon termination, any
outstanding remuneration due Consultant for services rendered shall be paid
within 3 (three) business days following termination.
SECTION 7. INDEMNIFICATION
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(a) In consideration of Consultant' execution and delivery of the this
Agreement, the Company shall defend, protect, indemnify and hold harmless
Consultant and all of its officers, directors, employees and direct or indirect
investors and any of the foregoing person's agents or other representatives
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "CONSULTANT
INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "CONSULTANT INDEMNIFIED
LIABILITIES'), incurred by any Indemnitee as a result of, or arising out of, or
relating to (i) any misrepresentation or breach of any representation or
warranty made by the Company in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby (ii) any breach of any
covenant, agreement or obligation of the Company contained in this Agreement or
any other certificate, instrument or document contemplated hereby or thereby,
(iii) any cause of action, suit or claim brought or made against such Indemnitee
by a third party and arising out of or resulting from the execution, delivery,
performance or enforcement of this Agreement or any other certificate,
instrument or document contemplated hereby or thereby. To the extent that the
foregoing undertaking by the Company may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of
each of the Consultant Indemnified Liabilities which is permissible under
applicable law. The indemnity provisions contained herein shall be in addition
to any cause of action or similar rights Consultant may have, and any
liabilities Consultant may be subject to.
(b) In consideration of the Company's execution and delivery of the
this Agreement, Consultant shall defend, protect, indemnify and hold harmless
the Company and all of its subsidiaries, shareholders, officers, directors and
employees and any of the foregoing person's agents or other representatives
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "COMPANY
INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Company Indemnitee is a
party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the "COMPANY INDEMNIFIED
LIABILITIES'), incurred by any the Company Indemnitee as a result of, or arising
out of, or relating to (i) any misrepresentation or breach of any representation
or warranty made by Consultant in the Agreement or any other certificate,
instrument or document contemplated hereby or thereby, (ii) any breach of any
covenant, agreement or obligation of Consultant contained in the Agreement or
any other certificate, instrument or document contemplated hereby or thereby,
(iii) any cause of action, suit or claim brought or made against such Company
Indemnitee by a third party and arising out of or resulting from the
Consultant's gross negligence or willful misconduct. To the extent that the
foregoing undertaking by Consultant may be unenforceable for any reason,
Consultant shall make the maximum contribution to the payment and satisfaction
of each of the Company Indemnified Liabilities which is permissible under
applicable law. The indemnity provisions contained herein shall be in addition
to any cause of action or similar rights the Company may have, and any
liabilities the Company may be subject to.
(c) Indemnification Procedure. Any party entitled to indemnification
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under this Section (an "INDEMNIFIED PARTY") will give written notice to the
indemnifying party of any matters giving rise to a claim for indemnification;
provided, that the failure of any party entitled to indemnification hereunder to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any action,
proceeding or claim is brought against an indemnified party in respect of which
indemnification is sought hereunder, the indemnifying party shall be entitled to
participate in and, unless in the reasonable judgment of counsel to the
indemnified party a conflict of interest between it and the indemnifying party
may exist with respect to such action, proceeding or claim, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party.
In the event that the indemnifying party advises an indemnified party that it
will contest such a claim for indemnification hereunder, or fails, within thirty
(30) days of receipt of any indemnification notice to notify, in writing, such
person of its election to defend, settle or compromise, at its sole cost and
expense, any action, proceeding or claim (or discontinues its defense at any
time after it commences such defense), then the indemnified party may, at its
option, defend, settle or otherwise compromise or pay such action or claim. In
any event, unless and until the indemnifying party elects in writing to assume
and does so assume the defense of any such claim, proceeding or action, the
indemnified party's costs and expenses arising out of the defense, settlement or
compromise of any such action, claim or proceeding shall be losses subject to
indemnification hereunder. The indemnified party shall cooperate fully with the
indemnifying party in connection with any settlement negotiations or defense of
any such action or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the indemnified party
which relates to such action or claim. The indemnifying party shall keep the
indemnified party fully apprised at all times as to the status of the defense or
any settlement negotiations with respect thereto. If the indemnifying party
elects to defend any such action or claim, then the indemnified party shall be
entitled to participate in such defense with counsel of its choice at its sole
cost and expense. The indemnifying party shall not be liable for any settlement
of any action, claim or proceeding effected without its prior written consent.
Notwithstanding anything in this Section to the contrary, the indemnifying party
shall not, without the indemnified party's prior written consent, settle or
compromise any claim or consent to entry of any judgment in respect thereof
which imposes any future obligation on the indemnified party or which does not
include, as an unconditional term thereof, the giving by the claimant or the
plaintiff to the indemnified party of a release from all liability in respect of
such claim. The indemnification required by this Section shall be made by
periodic payments of the amount thereof during the course of investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred, within ten (10) Business Days of written notice thereof to the
indemnifying party so long as the indemnified party irrevocably agrees to refund
such moneys if it is ultimately determined by a court of competent jurisdiction
that such party was not entitled to indemnification. The indemnity agreements
contained herein shall be in addition to (a) any cause of action or similar
rights of the indemnified party against the indemnifying party or others, and
(b) any liabilities the indemnifying party may be subject to.
SECTION 8. GOVERNING LAW
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This Agreement shall be governed by the laws of the state of Massachusetts,
without regard to the conflict of law rules of such state. Any controversy,
claim or dispute arising out of this Agreement, shall settled by binding
arbitration in the County of Suffolk, MA in accordance with the rules of the
American Arbitration Association there in effect, except that the parties
thereto shall have any right to discovery as would permitted by the Federal
Rules of Civil Procedure. The prevailing Party shall be entitled to
reimbursement of actual costs and attorney's fees from the arbitration and the
decision of the Arbitrator(s) shall be final.
SECTION 9 ASSIGNABILITY.
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This Agreement and the rights and obligations of the parties hereto shall
bind and inure to the benefit of Consultant and its legal representatives and
heirs and the Company and any successor or successors of the Company by
reorganization, merger, or consolidation and any assignee of all or
substantially all of its business and properties, but, except as to any such
legal representatives or heirs of Consultant or successor or assignee of the
Company, neither this Agreement nor any rights or benefits hereunder may be
assigned by the Company or the Consultant. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 10. ENTIRE AGREEMENT
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This Agreement constitutes the entire agreement of the Company and the
Consultant as to the subject matter hereof, superseding all prior written and
prior or contemporaneous oral understanding or agreements, including any
previous agreements, or understandings with respect to the subject matter
covered in this Agreement. This Agreement may not be modified or amended, nor
may any right be waived, except by a writing which expressly refers to this
Agreement, states that it is intended to be a modification, amendment, or waiver
and is signed by both parties in the case of a modification or amendment or by
the party granting the waiver. No course of conduct or dealing between the
parties and no custom or trade usage shall be relied upon to vary the terms of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
FTS Group, Inc.
/s/ Scott Gallagher
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By: Scott Gallagher
President
Consultant
/s/ Ted Smith
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By: Theodore J. Smith, Jr.