Consulting Agreement - Netgateway Inc. and Glashow Associates LLC
[LETTERHEAD OF GLASHOW ASSOCIATES]
CONSULTING AGREEMENT dated of December 24, 1998 between NETGATEWAY, Inc. A
Nevada Corporation with executive offices located at 300 Oceangate, Long Beach,
California 90802 (the "Company"), and GLASHOW ASSOCIATES, LLC with executive
offices located at 1224 West 61st Street, Kansas City, MO 64113 (the
"Consultant").
WITNESSETH
WHEREAS, the Consultant, through its affiliates and principals, has extensive
experience in its areas of expertise, including, without limitation, marketing,
finance, strategic planning and other business matters; and
WHEREAS, the Company desires to retain the services of the Consultant to render
strategic advice with respect to the development of the Company, and the
Consultant wishes to render such services to the Company, on the terms and
conditions, and subject to the qualifications, set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual promises and
covenants hereinafter set forth, and subject to the conditions contained herein,
the parties hereto agree as follows:
I. Terms of Service.
Section 1.01 Duties. The Consultant will advise the Company's
management, employees, and agents with respect to the Company's field of
interest and business, and strategic and commercial matters related to the
Consultant's areas of expertise. Upon reasonable notice to the Consultant, the
Company will have access to the Consultant at reasonable times in order to
discuss matters related to the Company's business. The services to be provided
by the Consultant pursuant to the terms, hereof, whether such services are
performed verbally or in writing, shall be reasonable in terms of hours per
month. If no such services are requested, the consulting fees provided for
herein shall still be paid.
Section 1.02 Term; Termination. The term (the "Term") of this
Agreement shall be 12 months, commencing on the date hereof. In the event the
Company shall terminate this Agreement for any reason, the parties hereto agree
that the Consultant shall be entitled to the amounts otherwise due hereunder
notwithstanding each termination.
Section 1.03 Compensation. As compensation of the services to be
performed under the terms of this agreement, consultant shall be entitled to
receive and the company agrees to pay the following compensation.
o The Company shall issue 100,000 shares of stock upon signing of this
agreement as previous compensation. Consultant shall have "piggy back"
registration rights without cost to Consultant.
o In the event the consultant introduces the company to a qualified investor
who is willing to make an investment on terms acceptable to the company
the consultant shall be entitled to receive five percent (5%) of the gross
proceeds received, provided, however, that no more than a total of 10%
shall be paid on any such transaction, and this 5% fee shall be adjusted
as needed.
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In the event the Consultant arranges a change of control or sale of the company
within 12 months of the signing of this agreement the Consultant will receive a
fee equal to one percent (1%) of the total value of the transaction. Consultant
may elect to take said compensation in the form of stock and/or cash.
All stock warrants or any other monies due shall vest immediately upon sale,
acquisition or change of control of the company.
Section 1.04 Expenses. If the Company requests the Consultant to
provide any specific services hereunder that cause the Consultant to incur
expenses, the Company shall reimburse the Consultant for all reasonable expenses
upon presentation of expense vouchers or statements or such other supporting
information as the Company require. The company agrees to incur the costs of a
due diligence trip to be made by Bob Ciri the first week of January 1999.
Section 1.05 Sale of Company. If the Company is sold, acquired, or
there is a change in control this agreement shall be considered as if terminated
by the Company and all action described herein and related to the previous
sections shall go into effect upon consummation of any of these actions. The
company shall compensate the consultant as described within 30 days of said
action. In the event any of these actions are taken within six months of
termination of this contract all compensation described herein shall be
considered due the consultant.
II. Miscellaneous.
Section 2.01 No Violation of Other Agreements. Each of the parties hereto
represents and warrants that execution, delivery, or performance of this
Agreement does not conflict with or violate the terms of, any other agreement to
which it is a party or by which it is bound.
Section 2.02 Independent Contractor; Limitation of Liability.
(a) The Consultant is an independent contractor to the Company, and
nothing herein shall be deemed to constitute the Consultant or
its agents as an employee of the Company.
(b) The Company acknowledges that it remains solely responsible for the
conduct and operation of its business and that the Consultant makes
no representation or warranty and assumes no liability with respect
to the outcome or result of any particular course of action or
operation of the Company's business.
Section 2.03 Notices. Any notice provided under this Agreement shall be in
writing and shall be deemed to have been effectively given when delivered
personally, sent by private express mail service (such as Federal Express), or
sent by registered or certified mail (return receipt requested) to the address
set forth in the introductory paragraph hereof (or to such other address as any
party has furnished in writing to the other parties in accordance with the
provisions of this Section 2.03).
Section 2.04 Assignment. Glashow may not assign its interest in this Agreement
or delegate its responsibilities hereunder without the prior written consent of
the other party.
Section 2.05 Severability. The invalidity or unenforceability of any particular
provision of this Agreement or portion thereof shall not affect the validity or
enforceability of any other provision thereof or portion thereof. If any
provision of this Agreement is adjudicated to be so broad as to be
unenforceable, it shall be interpreted to be only as broad as enforceable.
Section 2.06 Counterparts. Governing Law. This Agreement may be executed in any
number of counterparts each of which shall be deemed an original, but all of
which together shall constitute
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one and the same instrument. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Pennsylvania, without giving effect
to conflict of laws.
Section 2.07 Headings. The article and section headings in this Agreement are
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
Section 2.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
Section 2.09 Indemnification. The Company shall indemnify the consultant to the
extent permitted by law, against claims, liabilities, costs and expenses,
including legal fees, incurred by consultant as a result of activities
undertaken in good faith to promote the best interest of the company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
NETGATEWAY
By: /s/ Donald M. Cortiss, Jr.
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Name: Donald M. Cortiss, Jr.
Title: President
GLASHOW ASSOCIATES, LLC
By: /s/ Andrew J. Glashow
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Name: Andrew J. Glashow
Title: Managing Director