Exhibit 99.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
the 23rd day of May, 2003 by and between Xxxx Xxxxx (the "Consultant"), and
E-City Software, Inc. (the "Company" or "E-City" or the "Client"), whose
principal place of business is 0000 Xxxxx Xxx. Xxxxx, Xxxxx 000 Xxxxxxx, XX
00000.
WHEREAS, Consultant served as the CEO of E-City and is possessed of valuable
information related to its business history and future prospects and is prepared
to advise E-City concerning the same; and
WHEREAS, the Client deems it to be in its best interest to retain Consultant to
render to the Client such services; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to Client.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Consulting Services. The client hereby retains the Consultant as an
independent consultant to the Client to advise the Client as to business
strategy and the Consultant hereby accepts and agrees to such retention.
The services of Consultant shall not be Exclusive nor shall Consultant be
required to render any specific number of hours to the Client or its
projects.
2. Independent Contractor. Consultant agrees to perform his consulting duties
hereto as an independent contractor. Nothing contained herein shall be
considered to as creating an employer-employee relationship between the
parties to this Agreement. The Client shall not make social security,
worker's compensation or unemployment insurance payments on behalf of
Consultant.
3. Time, Place and Manner of Performance. The Consultant shall be available
for advice and counsel to the officers of the Client at such reasonable and
convenient times and places as may be mutually agreed upon. Except as
aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant
to any specific service, shall be determined at the sole discretion of the
Consultant.
4. Term of Agreement. The term of this Agreement shall be twelve (12) months,
commencing on the date of this Agreement, subject to prior termination as
hereinafter provided.
5. Compensation. In providing the foregoing services, except as agreed
otherwise by the Client, the Consultant shall be responsible for all costs
incurred by Consultant. Client shall pay Consultant for his services
hereunder as follows: to issue to Consultant 2,417,350 shares of common
stock purchase options at $0.01 per share, to be registered by the Client
on Form S-8 no later than 120 days from the date hereof. If Client shall
fail to so deliver, issue and register such shares, Consultant shall, in
addition to any other remedies available to him, be allowed to reclaim the
2,149,000 shares surrendered below with no additional notice or other
requirement.
6. Surrender of Existing Shares. The Consultant agrees to surrender 2,149,000
shares of common stock in his custody or control which shall become
property of the Client or its designee upon issuance of the above stock
options and effectiveness of the Form S-8, unless otherwise mutually agreed
to.
7. Other provisions.
(a) E-City pledges and promises that it will use all monies, approximately
$52,000 to be received by E-City from the Internal Revenue Service to be
used to pay corporate tax liability to Revenue Canada and to pay other tax
liability as directed by Consultant. Xxxxxxx X. Xxxxxxxx personally
guarantees that E-City will use all monies received from the IRS as
indicated above and agrees to have personal liability to Consultant for any
amounts of the above mentioned tax refund not utilized for the above
indicated purposes.
(b) E-City pledges that the options issued herein will not represent less than
%0.00338 of the issued and outstanding stock of the corporation during the
term of this agreement, including any options and rights to acquire stock.
In order to maintain this percentage, the company agrees to issue the
Consultant more options at the exercise price of $0.01 such that the
percentage ownership of the options is not less than %0.00338 less any
shares sold to adjust remaining percentages during the term of this
agreement.
(c) Consultant and Client shall have the right and discretion to terminate this
Agreement should the other party in performing their duties hereunder,
violate any law, ordinance, permit or regulation of any governmental
entity, except for violations which either singularly or in the aggregate
do not have or will not have a material adverse effect on the operations of
the Client.
(d) In the event of any termination hereunder all shares or funds paid to the
Consultant through the date of termination shall be fully earned and
non-refundable and the parties shall have no further responsibilities to
each other except that the Client shall be responsible to make any and all
payments if any, due to the Consultant through the date of the termination
and the Consultant shall be responsible to comply with the provisions of
section 7 hereof.
9. Work Product. It is agreed that all information and materials produced for
the Client shall be the property of the Consultant, free and clear of all
claims thereto by the Client, and the Client shall retain no claim of
authorship therein.
10. Confidentiality. The Consultant recognizes and acknowledges that it has and
will have access to certain confidential information of the Client and its
affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. The Consultant will not, during the term of
this Agreement, disclose, without the prior written consent or
authorization of the Client, any of such information to any person, for any
reason or purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of
the information is maintained in the hands of the person to whom the
information is to be disclosed or in compliance with the terms of a
judicial order or administrative process.
11. Conflict of Interest. The Consultant shall be free to perform services for
other persons. The Consultant will notify the Client of its performance of
consultant services for any other person, which could conflict with its
obligations under the Agreement. Upon receiving such notice, the Client may
terminate this Agreement or consent to the Consultant's outside consulting
activities; failure to terminate, this Agreement within seven (7) business
days of receipt of written notice of conflict shall constitute the Client's
ongoing consent to the Consultant's outside consulting services.
12. Disclaimer of Responsibility for Act of the Client. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. Consultant shall under no circumstances be liable
for any expense incurred or loss suffered by the Client as a consequence of
such decisions, made by the Client or any affiliates or subsidiaries of the
Client.
13. Indemnification.
(a) The client shall protect, defend, indemnify and hold Consultant and its
assigns and attorneys, accountants, employees, officers and director
harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character
resulting from, relating to or arising out of (a) the inaccuracy,
non-fulfillment or breach of any representation, warranty, covenant or
agreement made by the Client herein, or (b) negligent or willful
misconduct, occurring during the term thereof with respect to any of the
decisions made by the Client (c) a violation of state or federal law by the
Client.
(b) The Consultant shall protect, defend, indemnify and hold Client and its
assigns and attorneys, accountants, employees, officers and director
harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character
resulting from, relating to or arising out of (a) the inaccuracy,
non-fulfillment or breach of any representation, warranty, covenant or
agreement made by the Consultant herein, or (b) negligent or willful
misconduct, occurring during the term thereof with respect to any of the
decisions made by the Consultant (c) a violation of state or federal law by
the Consultant.
14. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail, or by Federal Express or other recognized overnight courier
to the principal office of each party.
15. Waiver of Breach. Any waiver by either party or a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by any party.
16. Assignment. This Agreement and the right and obligations of the Consultant
hereunder shall not be assignable without the written consent of the
Client.
17. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and under and
pursuant to the laws of the State of Nevada and that in any action, special
proceeding or other proceedings that may be brought arising out of, in
connection with or by reason of this Agreement, the law of the State of
Nevada shall be applicable and shall govern to the exclusion of the law of
any other forum, without regard to the jurisdiction on which any action or
special proceeding may be instituted.
18. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
19. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all
other or prior understandings, agreements and negotiations between the
parties.
20. Waiver and Modification. Any waiver, alteration, or modification of any of
the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, may waive any of its
rights hereunder without affecting a waiver with respect to any subsequent
occurrences or transactions hereof.
21. Binding Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The arbitration
shall be conducted in Las Vegas, Nevada.
22. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party. Such facsimile copies shall constitute enforceable original
documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, effective as of the date set forth above.
CONSULTANT:
/s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx
CLIENT:
E-City Software, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx DATE: May 23, 2003
-------------------
Xxxxxxx X. Xxxxxxxx, CEO
As to the personal guarantee contained in Section 7(a) only:
By: /s/ Xxxxxxx X. Xxxxxxxx DATE: May 23, 2003
-------------------
Xxxxxxx X. Xxxxxxxx, an individual
