EXHIBIT 99.1
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), made effective as of August
29, 2002, will confirm the understanding between RUBY MINING and its affiliates
and/or subsidiaries (collective, the "Company") and XXXXX X. XXXXXXXX
("Consultant"), pursuant to which the Company has retained Consultant in
connection with (i) short and long term strategic planning; (ii) short term
crisis management; (iii) short and long term marketing; iv) meeting
with/selecting qualified companies for joint business ventures; (v) contracting
and interviewing qualified accounting firms and legal counsel; (vi) recruitment
selection of key executives and staff and (vii) identification/selection of
board members with all such services (the "Services") on the terms and subject
to the condition set forth herein.
1. Retention. The Company hereby retains Consultant to provide the
Services. Consultant shall devote time and effort, as Consultant deems necessary
to provide the Services.
2. Further Agreements. This Agreement does not constitute any agreement
express or implied, on the part of a Consultant or the Company or any commitment
by Consultant, or by the Company to engage Consultant to underwrite, purchase,
place or cause the placement of any securities or indebtedness or to advise the
Company or negotiate on behalf of the Company in connection with any sale of any
securities or its business or assets or in connection with any merger,
consolidation or similar transaction.
3. Compensation. Company will pay consultant for the services shares of
free trading stock.
4. Termination. The term of the Agreement shall be six (6) months.
5. Indemnity. The Company agrees to indemnify the Indemnified Persons (as
defined in Schedule as set for in Schedule A hereto, which Schedule A is
incorporated herein and made a part hereof).
6. Representations and Warranties of the Company. In addition to any
representations and warranties for which provision is made in any other
agreement between the Company and Consultant, the Company represents and
warrants to Consultant that at the commencement of the Services and at the time
of the provision of the Services during the term of this Agreement:
(a) The Company will furnish Consultant and its agents and counsel
with all information concerning the Company that Consultant and its agents
reasonably deem appropriate and agree to provide Consultant and its agents with
reasonable access to the Company's officers, directors, accountants, counsel,
consultants and other
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appropriate agents and representatives. The Company acknowledges the Consultant
and its agents may rely upon the completeness and accuracy of information and
data furnished to any of them by or on behalf of the Company and that the
Company will use its best efforts to ensure that such information will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
(b) All payments of compensation to Consultant shall not cause the
Company to violate any law or regulation applicable to the Company and that in
the event payment is in the form of securities or instruments convertible to
securities, each registration statement, preliminary and final prospectus
required to be filed or previously filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended, pertaining to any such securities or instruments convertible into
securities and each appendix, attachment, amendment, or supplement or any of the
foregoing and all related documents, including but not limited to each related
letter of transmittal will not and no other report filing, document, release or
communication mailed, delivered, published, or filed by or on behalf of the
Company will, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and
(c) This Agreement had been, and the Services contemplated hereby at
the time of the commencement and consummation thereof, shall be duly authorized
by the Company.
7. Certain Other Covenants of the Company. Other than to the Company's
representatives, the company agrees that no advice or recommendations rendered
or summarized, excerpted from or otherwise referred to without Consultant's
prior written consent. In addition, other than to the Company's representatives,
Consultant may not be otherwise referred to by the Company without Consultant's
prior written consent or unless required by law.
8. Survival of Certain Provisions. The compensation provisions contained in
paragraph 3 above, the indemnity contained in paragraph 8 hereof (including
Schedule B hereto) and the representations and warranties of the Company
contained in paragraph 6 hereof and this paragraph 8 shall remain operative and
in full force and effect regardless of (1) any investigation made by or on
behalf of Consultant, or by or on behalf of any Indemnified Person (as such is
defined in Schedule A hereto), and (ii) any termination or expiration of this
Agreement, and shall be binding upon, and shall, inure to the benefit of, any
successors, assigns, heirs and personal representatives of the Company,
Consultant, and any and all Indemnified Persons.
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9. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (i) to the
Company at 0000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and (ii) Xxxxx
X. Xxxxxxxx, X.X. Xxx 000000, Xxxxxxx, Xxxxxxx 00000.
10. Construction. This Agreement, including Schedule A hereto, incorporates
the entire understanding of the parties and supersedes all previous agreements
and shall be governed by, and constructed in accordance with, the laws of the
State of Florida as applied to contracts made and performed in such State. The
Company and Consultant each hereby irrevocably submits to the exclusive
jurisdiction of the Federal and Florida State courts located in Miami-Dade
County, Florida in connection with any suit, action, or proceeding related to
this Agreement or any of the matters contemplated hereby, irrevocably waives any
defense of lack of personal jurisdiction and irrevocably agrees that all claims
in respect of any such suit, action or proceeding may be heard and determined in
any such court. The Company and Consultant each irrevocably waives, to the
fullest extent it may effectively do so under applicable law, any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court had been brought in an
inconvenient forum. Each Indemnified Person (as defined in Schedule A to this
Agreement) is intended to be a third party beneficiary of the provisions of
paragraphs hereof and Schedule A. All obligations of the Company hereunder and
under Schedule A shall be joint and several obligations of the Company and its
affiliates and subsidiaries.
11. Severability. Any determination that any provision of this Agreement
(including any provision of Schedule A) may be, or is unenforceable shall not
affect the enforceability of the remainder of this Agreement (including Schedule
A).
12. Headings. The paragraph headings in this Agreement have been inserted
as a matter of convenience of reference and are not part of this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
14. Third Party Beneficiaries. This Agreement has been and is made solely
for the benefit of the Company and Consultant (including other Indemnified
Persons for purposes of paragraph 8 hereof and Schedule A only) and Schedule A
hereof and their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
15. Modification. This Agreement may not be modified or amended except in
writing, duly executed by the parties hereto.
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If the foregoing terms correctly set forth our agreement, please confirm
this by signing and returning to Consultant a duplicate copy of this letter.
Thereupon, this letter, as signed in counterpart, shall constitute our agreement
on the subject matter herein.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Confirmed and agreed to as
of the date first above written
_Ruby Mining Company
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Chairman & CEO
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Schedule A
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Indemnity
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This Schedule A is a part of an is incorporated into that certain
consulting agreement (the "Consulting Agreement:" and together with this
Schedule A, the "Agreement"), dated subsidiaries (collectively, the "Company")
and XXXXX X. XXXXXXXX ("Consultant"). Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Letter Agreement.
The Company agrees to indemnify and hold harmless Consultant, his
affiliates and their respective directors, officer, agents, and employees
(Consultant and each such entity or person are an "Indemnified Person") from and
against any losses, claims, damages, judgments, assessments, costs, and other
liabilities (collectively "Liabilities"), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel, at trial and on appeal (collectively,
"Expenses") as they are incurred in investigating, preparing, pursuing, or
defending any claim, action, proceeding or investigation, whether or not in
connection with pending or threatened litigation and whether or not any
Indemnified Person is a party (collectively, "Actions"), (i) caused by, arising
out of or in connection with the Company's breach of this Agreement including,
but not limited to the breach of any representation, warranty or term contained
in the Consulting Agreement, or services rendered or to be rendered by an
Indemnified Person pursuant to the Consulting Agreement. The Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith or willful, misconduct of an Indemnified Person in
connection with any of the Services referred to in the Consulting Agreement. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under this Agreement (including, without limitation, its rights under this
Schedule A) and the Consulting Agreement.
Upon receipt by an Indemnified Person of actual notice of an Action against
such Indemnified Person with respect to which indemnity may be sought under this
Agreement, such Indemnified person shall promptly notify the Company in writing;
provided that failure so to notify the Company shall not relieve the Company
from any liability which the Company may have on account of this indemnity or
otherwise, except to the extent the Company shall have been materially
prejudiced by such failure. The Company shall, if requested by Consultant or at
the Company's option, assume the defense of any such Acton including the
employment of counsel selected by the Company that is reasonably satisfactory to
Consultant. Notwithstanding the Company's option to assume a defense of an
Indemnified Person, any Indemnified Person shall have the right to employ
separate counsel in any such Action and participate I the defense thereof, with
the fees and expenses of such counsel being at the expense of the Company.
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The Company shall not be liable for any settlement of any Action effected
without its prior written consent (which shall not be unreasonably withheld). In
addition, the Company will not, without prior written consent of Consultant,
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification, or contribution may be sought hereunder (whether or not any
Indemnification Person is party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Undefined
Person from all Liabilities arising out of such Action.
The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the company
for or in connection with Services rendered or to be rendered by the Indemnified
Person pursuant to this Agreement, the transactions contemplated hereby or any
Indemnified Person's actions or inactions in connection with any such Services
except for Liabilities competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from the gross negligence bad
faith, or willful misconduct of an Indemnified Person in connection with such
Services.
The reimbursement and indemnity obligations of the Company set forth herein
shall apply to any modification of this Agreement and the Consulting Agreement
and shall remain in full force and effect regardless of any termination of, or
the completion of any Indemnified person's Services under or in connection with,
this Agreement and the Consulting Agreement.
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