CONSULTING AGREEMENT
This amended Consulting Agreement (the “Agreement”), is amended as of January 14, 2009 and is effective as of January 1, 2008 (the “Effective Date”) between AVT, Inc., a Nevada corporation, whose principal business offices are located at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (the “Company”)
and SWI Trading, Inc., a California corporation (the “Consultant”) whose principal business offices are located at 0000 Xxxxx Xxx Xxxx, Xxxxxx, XX 00000.
WHEREAS, the Company requires the Services (as defined herein) and as set forth herein;
WHEREAS, Consultant is qualified to provide the Company with the Services and is desirous to perform such Services for the Company; and
WHEREAS, the Company wishes to induce Consultant to provide the Services and wishes to contract with the Consultant regarding the same and compensate Consultant in accordance with the terms herein;
WHEREAS, this amended Agreement was drafted to replace a previous consulting agreement between the Company and Consultant and was to include stock compensation which was inadvertently omitted by the parties.
WHEREAS, the parties are entering into this amended Agreement stock compensation to the Consultant under Section 4 herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render the Services to the Company as a consultant upon the terms and conditions hereinafter set forth.
2. TERM.
Subject to Section 8(a), the term of this Consulting Agreement shall begin as of the date of the Effective Date, and shall continue one year thereafter (hereinafter, the “Term”). This Agreement shall automatically renew for addition 1 year terms, unless either party provides 30 day prior written notice.
3. SERVICES.
During the term of this Agreement, Consultant shall provide the Company with the following “Services.” The Services shall be limited to making recommendations and offering advice to the Company’s Officers, Directors and other key Company personnel. As offsite advisors, the Consultant will rely
upon the Company’s management to, in the Company’s sole discretion, accept or reject its recommendations. Under no circumstances, even in the event that Consultant is to perform onsite analysis, shall Consultant be responsible for making any decisions on behalf of the Company.
a. Company wishes for Consultant to specifically assist it in the reorganization of various debts on the Company’s balance sheet. Additionally and more generally, Company is desirous of Consultant to:
(i) Advise internal management, with particular focus on strategic planning, organizational and corporate structure, and overall business analysis with the ultimate goal of preparing the company for capital market investor
due diligence.
(ii) Advise internal management in regard to the size of any offering of the Company’s securities and the structure and terms of the offering in light of the current market environment and the Company’s existing
capital structure limitations;
(iii) Work with the Company to develop a long-term growth, capital structure and financing strategy;
(iv) Assist the Company with research and development;
(v) Assist the Company with technology development;
(vi) Loan acquisition services; and
(vii) Use of Consultant’s line of credit.
b. Consultant agrees to provide the Services on a timely basis via: meetings with Company representatives which may include other professionals; conferences calls with Company representatives and other professionals; and/or
written correspondence and documentation. Consultant cannot guarantee the results on behalf of the Company, but shall pursue all avenues that it deems reasonable through its network of contacts.
4. COMPENSATION. In
connection with this Agreement, the foregoing shall be referred to as “Compensation.” All Compensation due to be delivered and/or paid to Consultant pursuant to this Agreement shall be deemed completely earned, due, payable and non-assessable as of the date the Compensation is due to or vested in Consultant. Compensation shall consist of the following fees:
a. Consultant shall receive $11,620 per month; and
b. Consultant shall receive 100,000 restricted shares of the Company’s common stock on each of the following dates: March 31, 2008; June 30, 2008; September 30, 2008; and December 31, 2008.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company hereby represents, warrants and agrees as follows:
a. This Agreement has been authorized, executed and delivered by the Company and, when executed by the Consultant will constitute the valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles.
b. The financial statements, audited and unaudited (including the notes thereto) provided to Consultant, (the “Financial Statements”), will present fairly the financial position of the Company as of the dates indicated and the results of operations and cash flows
of the Company for the periods specified. Such Financial Statements will be prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as otherwise stated therein.
c. The Company is validly organized, existing and with active status under the laws the State of Nevada.
d. The securities to be issued to Consultant, if any, have all been authorized for issuance and when issued, delivered and tendered to the Consultant by the Company will be validly issued, fully paid and non-assessable.
e. Since date of the most recent of the Financial Statements, there has not been any (A) material adverse change in the business, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, (B) transaction that is material to the
Company, except transactions in the ordinary course of business, (C) obligation that is material to the Company, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business, (D) change that is material to the Company or in the common shares or outstanding indebtedness of the Company, or (E) dividend or distribution of any kind declared, paid, or made in respect of the common shares.
f. The Company shall be deemed to have been made a continuing representation of the accuracy of any and all facts, material information and data which it supplies to Consultant and acknowledges its awareness that Consultant will rely on such continuing representation in disseminating
such information and otherwise performing its advisory functions. Consultant in the absence of notice in writing from the Company, will rely on the continuing accuracy of material, information and data supplied by the Company. Consultant represents that he has knowledge of and is experienced in providing the aforementioned services.
6. INDEMNIFICATION. The
Company agrees to indemnify the Consultant and hold it harmless against any losses, claims, damages or liabilities incurred by the Consultant, in connection with, or relating in any manner, directly or indirectly, to the Consultant rendering the Services in accordance with the Agreement, unless it is determined by a court of competent jurisdiction that such losses, claims, damages or liabilities arose out of the Consultant’s breach of this Agreement, sole negligence, gross negligence, willful misconduct,
dishonesty, fraud or violation of any applicable law. Additionally, the Company agrees to reimburse the Consultant immediately for any and all expenses, including, without limitation, attorney fees, incurred by the Consultant in connection with investigating, preparing to defend or defending, or otherwise being involved in, any lawsuits, claims or other proceedings arising out of or in connection with or relating in any manner, directly or indirectly, to the rendering of any Services by the Consultant
in accordance with the Agreement (as defendant, nonparty, or in any other capacity other than as a plaintiff, including, without limitation, as a party in an interpleader action). The Company further agrees that the indemnification and reimbursement commitments set forth in this paragraph shall extend to any controlling person, strategic alliance, partner, member, shareholder, director, officer, employee, agent or subcontractor of the Consultant and their heirs, legal representatives, successors and
assigns. The provisions set forth in this Section shall survive any termination of this Agreement.
7. COMPLIANCE WITH SECURITIES LAWS. The Company understands that any and all compensation outlined in this Agreement shall
be paid solely and exclusively as consideration for the aforementioned consulting efforts made by Consultant on behalf of the Company as an independent contractor. The Parties to be performing the services outlined in this Agreement are natural persons. Consultant’s engagement does not involve the marketing of any Company securities nor is Consultant being hired to raise money for the Company.
8. MISCELLANEOUS.
a. Termination: This Agreement may be terminated by either Party for any reason at any time (hereinafter referred to as a “Termination”).
b. Modification: This Agreement sets forth the entire understanding of the Parties with respect to the subject matter hereof. This Agreement
may be amended only in writing signed by both Parties.
c. Notices: Any notice required or permitted to be given hereunder shall be in writing and shall be mailed or otherwise delivered in person to the Parties
at the addresses set forth above.
d. Waiver: Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Consulting Agreement on one or more occasions will not be considered a waiver or deprive that party of the right thereafter to insist upon adherence to that term of any other term of this Consulting Agreement.
e. Assignment: Compensation under this Agreement is assignable at the sole discretion of the Consultant.
f. Severability: If any provision of this Agreement is invalid, illegal, or unenforceable, the balance of this Consulting Agreement shall remain in
effect. If any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If any compensation provision is deemed unenforceable or illegal, then in the case of the delivery of common stock to the Consultant, Consultant shall be entitled to receive a cash benefit equal to the value of the common stock that would have been tendered had such a provision not been illegal or unenforceable.
g. Arbitration: Any dispute or other disagreement arising from or out of this Agreement shall be submitted to arbitration under the rules of the American
Arbitration Association and the decision of the arbiter(s) shall be enforceable in any court having jurisdiction thereof. Arbitration shall occur only in Orange County, California
h. Governing Law: The subject matter of this Agreement shall be governed by and construed in accordance with the laws of the State of California (without
reference to its choice of law principles), and to the exclusion of the law of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF ORANGE, CALIFORNIA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY
WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE. If it becomes necessary for any party to institute legal action to enforce the terms and conditions of this Agreement, the prevailing party shall be awarded reasonable attorneys fees, expenses and costs.
i. Specific Performance: The Company and the Consultant shall have the right to demand specific performance of the terms, and each of them, of this Agreement.
j. Execution of the Agreement: The Company, the party executing this Agreement on behalf of the Company, and the Consultant, have the requisite corporate
power and authority to enter into and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder. All corporate proceedings have been taken and all corporate authorizations and approvals have been secured which are necessary to authorize the execution, delivery and performance by the Company and the Consultant of this Agreement. This Agreement has been duly and validly executed and delivered by the Company and the Consultant and constitutes a valid and
binding obligation, enforceable in accordance with the respective terms herein. Upon delivery of this Agreement, this Agreement, and the other agreements and exhibits referred to herein, will constitute the valid and binding obligations of Company, and will be enforceable in accordance with their respective terms. Delivery may take place via facsimile transmission.
k. Joint Drafting and Reliance on Independent Counsel. This Agreement shall be deemed to have been drafted jointly by the Parties hereto, and no inference
or interpretation against any one party shall be made solely by virtue of such party allegedly having been the draftsperson of this Agreement. The Parties have each conducted sufficient and appropriate due diligence with respect to the facts and circumstances surrounding and related to this Agreement. The Parties expressly disclaim all reliance upon, and prospectively waive any fraud, misrepresentation, negligence or other claim based on information supplied by the other Party, in any way
relating to the subject matter of this Agreement.
l. Acknowledgments and Assent. The Parties acknowledge that they have been given at least ten (10) days to consider this Agreement and that they were
advised to consult with an independent attorney prior to signing this Agreement and that they have in fact consulted with counsel of their own choosing prior to executing this Agreement. The Parties my revoke this Agreement for a period of three (3) days after signing this Agreement, and the Agreement shall not be effective or enforceable until the expiration of this three (3) day revocation period. The Parties agree that they have read this Agreement and understand the content herein, and
freely and voluntarily assent to all of the terms herein.
SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the date first above written.
|
/s/ Xxxxxxx Xxxxxxx
_________________________________
By: Xxxxxxx Xxxxxxx
Its: Secretary |
SWI TRADING, INC.
/s/ Xxx Xxxxxxxxxxx
___________________________________
By:
Its: |
A FACSIMILE COPY OF THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AS AN ORIGINAL OF THE SAME.
