Exhibit 2.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into as of this August 31, 2003
(the "Agreement"), by and between Kingdom Ventures, Inc., a Nevada corporation
(the "Company"), and Xx. Xxxxxxx X. Xxxxxxx, an individual, an individual
resident of the State of Virginia ("Consultant"). The Company and Consultant are
sometimes referred to herein collectively as the "Parties" and individually as a
"Party."
WITNESSETH:
WHEREAS, the Company desires that Consultant provide the Company with
consulting services relating to certain matters pertaining to the Company
Business (as herein defined); and
WHEREAS, Consultant wishes to provide the Company with consulting
services relating to such matters;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Parties hereto do
hereby agree as follows:
1. Consultant. The Company hereby engages Consultant to serve the Company in the
capacity of a consultant.
2. Consulting Services. The Consultant shall perform such services and expertise
beyond the scope of the Consultant's obligations under that certain Employment
Agreement (the "Employment Agreement") dated as of August 31, 2003 by and among
Consultant Company, and AACC Acquisition Corporation, Inc. ("AACC"), relating to
the development of additional businesses, expansion of existing businesses,
identification of potential acquisition targets, integration of new or existing
businesses into the Company, recruitment of directors and employees, and other
matters, consistent with the foregoing, from time to time identified by the
Board of Directors to the Consultant (the "Company Business").
3. Consulting Fee. The Company and Consultant agree that Consultant shall not be
required to devote a minimum number of hours in the performance of the
consulting services and that the consulting services required hereby are beyond
the scope and in addition to any obligations of the Consultant arising from any
other relationship between the Company and the Consultant. Consultant shall
provide services to the Company at such times and places as the Board of
Directors shall reasonably request. In consideration of the services to be
rendered hereunder by Consultant, the Company shall:
a. Immediately upon the execution of this Agreement by the
parties hereto, pay to the Consultant the sum of $100,000 in
immediately available funds; and
b. Pay to the Consultant the sum of $400,000 in eight (8)
payments of $50,000 each commencing on September 15, 2003 and
continuing on the 15th day of each month thereafter until and
including April 15, 2004; and
c. Pay to the Consultant the sum of $750,000 in forty-two (42)
payments of $17,857 each commencing on May 15, 2004 and
continuing on the 15th day of each month thereafter until and
including October 15, 2007.
4. Expenses. The Company will reimburse the Consultant for all expenses incurred
in connection with the rendering of services under this Agreement. Consultant
agrees that all expenses that he incurs must be evidenced by receipts or
vouchers and that he will comply with all reimbursement policies or procedures
of the Company. In the event that travel is required in any of the services
rendered by Consultant hereunder, the Company shall reimburse Consultant for air
and auto travel expenses, hotel accommodations, meals, taxis and/or rental cars
and such other related miscellaneous expenses, provided such expenses are
reasonable and evidenced by receipts or vouchers.
5. Term. The term of this Agreement shall commence on the execution date hereof
and end August 31, 2006 or, if earlier, the termination of the Employment
Agreement. Notwithstanding the termination of this Agreement, Section 3, and the
Company's payment obligation thereunder shall be absolute and not subject to any
claims, offsets or defenses, whether based upon any breach by Consultant of any
terms or conditions of this Agreement or otherwise, and Sections 9 through 18
shall continue to survive termination of this Agreement.
6. Notice. Any notice, request, consent or communication (collectively a
"Notice") under this Agreement shall be effective only if it is in writing and
(a) personally delivered or, (b) sent by certified or registered mail, return
receipt requested, postage prepaid or, (c) sent by nationally recognized
overnight delivery service, with delivery confirmed, or (d) telefaxed or
telecopied, with receipt confirmed, addressed as follows:
If to Consultant: Xx. Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Fax:
If to Company: Kingdom Ventures, Inc.
Attn: Xxxx Xxxxxxx
0000 Xxxxxxxxx Xxx
Xxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
or to such other address or addresses as shall be furnished in writing by any
Party to the other Party. A Notice shall be deemed to have been given as of the
date when (i) personally delivered, (ii) three days after when delivered during
business hours to said overnight delivery service, properly addressed and prior
to such delivery service's cut off time for next day delivery, or (iv) when
receipt of the telex or telecopy is confirmed, as the case may be, unless the
sending Party has actual knowledge that a Notice was not received by the
intended recipient.
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8. Additional Covenants and Agreements. In addition to his other obligations
under this Agreement, Consultant expressly agrees that he shall owe the same
obligations to the Company under this Agreement as he owes to AACC pursuant to
Section 3.01 and Section 3.05 of the Employment Agreement. The terms of Section
3.01 and Section 3.05 of the Employment Agreement are incorporated herein by
this reference as if fully set forth in this Agreement, save that the terms
"Employer," as used therein, shall mean herein, the Company. The Company
acknowledges and agrees that Consultant shall be free (a) to undertake, engage
in, and participate in, the Outside Activities (as defined in the Employment
Agreement) and (b) to utilize Employer Confidential Information in connection
with the Outside Activities, provided that Consultant complies with all of his
obligations under the Employment Agreement to AACC with respect to the Outside
Activities.
9. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Virginia. All disputes,
controversies or differences which may arise out of, in relation to, or in
connection with this Agreement or the breach thereof shall, unless settled by
mutual consultation in good faith, be finally settled in the state courts of
Virginia or federal courts of the Western District of Virginia. Each Party
reserves the right to pursue injunctive relief or other equitable remedies in a
court of competent jurisdiction in connection with any breach of the terms of
this Agreement.
10. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provisions shall be ineffective to the extent of such
provision or invalidity only, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11. Assignment. This Agreement may not be assigned by Consultant. Neither
Consultant, his spouse nor their estates shall have any right to encumber or
dispose of any right to receive payments hereunder, it being understood that
such payments and the right thereto are nonassignable and nontransferable. The
foregoing notwithstanding, in the event that Consultant dies or becomes disabled
during the term of this Agreement, all of the payments under Section 3 shall be
made to the Consultant's estate or personal representatives. The Company may
assign its rights, duties, and obligations under this Agreement to an affiliate,
provided that such affiliate expressly assumes of all of the Company's
obligations under this Agreement, including without limitation, the Company's
payment obligations pursuant to Section 3 above. The Company agrees to, and does
hereby, guarantee full payment of all payments owing to Consultant under this
Agreement, notwithstanding an assignment of this Agreement to an affiliate. In
the event of an assignment of this Agreement by the Company to an affiliate in
compliance with this Section 11, such affiliate shall be entitled to enforce all
of Company's rights, titles and interests herein, and, subject to the preceding
sentence of this Section 11, the Company shall be released from all duties and
obligations hereunder from and after the date of such assignment
12. Binding Effect. Subject to the provisions of Section 11 of this Agreement,
this Agreement shall be binding upon and inure to the benefit of the Parties
hereto, Consultant's heirs and personal representatives, and the successors and
assigns of the Company.
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13. Independent Contractor. Nothing herein shall be construed or deemed to
create a joint venture, contract of employment or partnership. It is agreed and
understood between the Parties hereto that Consultant is an independent
contractor and is not an employee of the Company hereunder. Consultant will be
solely responsible for payment of all taxes due or which may become due on
monies paid by the Company to Consultant hereunder, specifically including but
not limited to income tax (withholding) and FICA. Consultant shall not be
entitled to corporate benefits of the Company provided to its employees so long
as this Agreement remains in effect. Under no circumstances will either Party
act or attempt to act, or represent itself, as an agent of the other Party
without prior written authorization, or enter into any contract on behalf of the
other Party.
14. Headings. Section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
15. No Waiver. Failure by either Party hereto to enforce at any time or for any
period of time any provision or right hereunder shall not constitute a waiver of
such provision or of the right of such Party thereafter to enforce each and
every such provision.
16. Force Majeure. Either Party will be excused for delays in performance under
this Agreement if their inability to perform punctually is caused by force
majeure. Force majeure as used herein shall mean, cover and include the
following: acts of God, strikes, lock-outs, industrial disturbances, acts of the
public enemy, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, storms, floods, wash-outs, tornadoes, hurricanes,
windstorms, arrest and restraint of rulers and people, civil disturbances,
boycotts, explosions, breakage or accident to machinery or equipment, and any
other causes similar to those above, which are not within the reasonable control
of the Party claiming force majeure, and which by the exercise of due diligence
such Party is unable to overcome.
17. Drafting. Both Parties hereto acknowledge that each Party was actively
involved in the negotiation and drafting of this Agreement and that no law or
rule of construction shall be raised or used in which the provisions of this
Agreement shall be construed in favor or against either Party hereto because one
is deemed to be the author thereof.
18. No Violation of Applicable Laws. Consultant agrees not to engage in any
conduct which would constitute a violation of any Federal law of the United
States or any international law including but not limited to the Anti-Bribery
and Books and Records Provisions of The Foreign Corrupt Practices Act 15 U.S.C.
xx.xx. 78m, 78dd, and 78ff. Consultant further agrees that in the course of
fulfilling his duties under this Agreement, he will not to engage in any conduct
which would violate or contradict any state or local law.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written, to be effective as of the date first set forth
above.
COMPANY:
KINGDOM VENTURES, INC.
By: __________________________
Xxxx Xxxxxxx, President
CONSULTANT:
XX. XXXXXXX X. XXXXXXX
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