EXHIBIT 10.10
THIS DOCUMENT WHEN SIGNED CONSTITUTES A LEGALLY BINDING
CONTRACT WHICH REQUIRES ARBITRATION TO RESOLVE ANY DISPUTES
BETWEEN THE PARTIES.
MANAGEMENT CONSULTING AGREEMENT
This Management Consulting Agreement (the "Agreement) is made
and entered into effective the date it is signed by the last to sign as set
forth below by and between the following parties:
I.Siteworks, Inc., whose principal executive offices is 0000 X. Xxxxx
Xxx., Xxxx 0 X, Xxxxx, XX 00000, a Florida Corporation, hereinafter
referred to as the "Client" and whose stock symbol is Pink Sheet
"SRKS"; and, whose telephone number is (000) 000-0000.
II. Xxxxx Xxxx,, Stock Focus Capital .whose principal place of business
is 56 Xxxxx Avenue,Kitchener,Ontario,Canada,N2H6A5. Telephone Number
(000) 000-0000; Fax number (519) .........., hereinafter referred to as
the "Consultant":
WHEREAS, Client is a holding company whose business plan includes
fostering the growth and profitability of acquired businesses through
the application of financial resources and management expertise; and
WHEREAS, Consultant, and its affiliates, are in the business of
providing services for management consulting, business advisory,
shareholder information and public relations; and
WHEREAS, the Client deems it to be in its best interest to retain
Consultant to render to the Client such services as may be needed in
order to inform the public of the potential investment merit and
potential for the Client and its securities, thereby increasing
investor recognition, market liquidity and improve shareholder value
and market liquidity, and to assist Client in acquisitions, mergers
and/or financial transactions; and
WHEREAS, Consultant is ready, willing, and able to render such
consulting and advisory services to the Client as in hereinafter
described on the terms and conditions more fully set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in the 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 public relations and business consultant to
the Client and the Consultant hereby accepts and agrees to
such retention. The Consultant shall render to the Client such
services as set forth on Exhibit "A", attached hereto and by
reference incorporated herein.
It is acknowledged and agreed by the Client that Consultant
carries no professional licenses, other than any that may be
listed on Exhibit "A", and is not agreeing to act as a
market-marker or render legal advice or perform accounting
services, nor act as an investment advisor or broker-dealer
within the meaning of applicable state and federal securities
laws. It is further acknowledged and agreed by the Client that
the services to be provided to the Client hereunder are
presently not contemplated to be rendered in connection with
the offer and sale of Securities in a capital raising
transaction; although Client may request services of
Consultant therefore and have reached a basis for compensation
if such additional services are rendered. The services of
Consultant shall not be Exclusive nor shall Consultant be
required to render any specific number of hours or assign
specific personnel to the Client or its projects.
2. INDEPENDENT CONTRACTOR. Consultant agrees to perform its
consulting duties hereto as an independent contractor.
Nothing contained herein shall be considered as creating an
employer-employee relationship between the parties to this
Agreement. The Client shall not make social security,
workers' compensation, or unemployment insurance payments
on behalf of Consultant. The parties hereto acknowledge and
agree that Consultant cannot guarantee the results of
effectiveness of any of the services rendered or by
Consultant hereunder. Rather, Consultant shall conduct its
operations and provide its services in a professional
manner and in accordance with good industry practice.
Consultant will use its best efforts and does not promise
results.
3. TIME, PLACE, AND MANNER OF PERFORMANCE. The Consultant shall
be available for advice and counsel of the officers and
directors 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, both
subject to prior termination as hereinafter provided.
5. COMPENSATION AND EXPENSES. In full consideration of the
services to be provided for the Client by the Consultant as
fully set forth in Exhibit "A", the Client agrees to
compensate Consultant in the manner as set forth in Exhibit
"B. Consultant shall be solely responsible for all expenses
and disbursements anticipated to be made in connection with
its performance under this Agreement. Compensation is not
to be prorated over the term of this Agreement and is
non-refundable. Provided, if Consultant is terminated for
cause as provided below, then Compensation will be prorated
on a monthly basis, but Consultant may retain the unearned
shares if it pays to Client the agreed Exchange value of
the stock for this transaction set forth in Exhibit "B".
Consultant may have an obligation to pay a Referral Fee equal
to Ten Percent of the Compensation to a third party for
marketing and introduction of the parties hereto, but such
Referral Fee shall be paid solely by Consultant and Client
hereby waives any claim, demand, or cause of action against
the Referring Party for any action arising from any action or
omission by Consultant and Client agrees to pay such payment.
The name of the Referring Party shall be set forth on Exhibit
"A".
6. DUTIES AND OBLIGATIONS OF CLIENT.
(a) Client shall furnish to Consultant such current
information and data as necessary for Consultant to
understand and base its advise to the Client, and
shall provide such current information on a regular
basis, including at a minimum:
i. Financial Information:
Balance Sheet, Income Statement,
Cash Flow Analysis and Sales
Projections; Officers and Directors
Resumes or Curriculum Vitae; and,
ii. Shareholder Information:
Shareholder(s) List; Debenture or
Preferred Stock or Potion or Warrant
Agreements which may affect the
number of shares to be issued or
outstanding. Client hereby
authorizes Transfer Agent to deliver
to Consultant a copy of the
shareholder's list(s) and an
accounting for shares outstanding
per its books.
(b) Client shall furnish Consultant with full and
complete copies of all filings with all Federal and
State Securities Agencies, with full and complete
copies of all Shareholder Reports and Communications
whether or not prepared with assistance of
Consultant; with all data and information supplied
to any Analyst, Broker/Dealer, Market-Maker, or any
other member of the Financial Community, including
specifically most recently filed Form 10 or Form
15c2(11) or Offering documents (such as 504, 505, or
506) or Private Placement Documents. If Client is
not a fully reporting Company under the provisions
under the SEC, then it shall furnish a letter
opinion from its Securities Counsel that the Client
Stock is tradable or may be sold in the public
market.
(c) Client will notify Consultant of any private of
public offering of securities, including S-8 or
Regulation S or A at least five (5) days prior to
making such an offering during the term of this
Consulting Agreement.
(d) Client will notify Consultant in writing at least
Fifteen (15) days prior to any insider selling of
client's stock, if known to Client.
(e) Client will not cause to be effected a change or
split of the Client stock during the terms of the
Agreement without at least five (5) days prior
written notice to Consultant.
(f) Client shall be responsible for advising Consultant
of any information or facts that would affect the
accuracy of any prior data and information to
Consultant.
7. TERMINATION.
(a) Without cause, Consultant's relationship with the Client
hereunder may be terminated at any time by mutual written
agreement of the parties hereto.
(b) Without cause, this Agreement shall terminate upon the
dissolution, bankruptcy or insolvency of the Client.
(c) Without cause, and without excusing the Client's
obligations under Section 5 herein above. Consultant
shall have the right and discretion to terminate this
Agreement should the Client violate any law, ordinance,
permit or regulation of any government entity, except for
violations which either singularly or in aggregate do not
or will not have a material adverse effect on the
operations of the Client.
(d) Without cause, this Agreement may be terminated by either
party upon giving written notice to the other party if
the other party is in default hereunder such default is
not reasonably cured within fifteen (15) days after
written notice of such default.
(e) For cause(s) as set forth below, this Agreement may be
terminated by Client after giving written notice
specifically detailing all and any event(s) of default to
Consultant, if such specified event(s) of default is not
reasonably cured within fifteen (15) days after receipt
of written notice or such events of default(s):
(i) Any willful breach of duty by Consultant,
(ii) Any material breach by Consultant of the
obligations in Section 9,
(iii) Any material act or event that would inhibit
Consultant from fully performing its
responsibilities under this Agreement in
good faith.
8. 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.
9. CONFIDENTIALITY. The Consultant recognizes and acknowledges that
it has and will have access to certain confidential information to
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 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.
10. 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)
days of receipt of written notice of conflict shall constitute the
Client's ongoing consent to the Consultant's outside consulting
services.
11. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF THE CLIENT. The
obligations of Consultant described in the Agreement consist
solely of the furnishing of information and advice to the Client
in the form of services. In no event shall Consultant be required
by this Agreement to represent or make management decisions for
the Client. All final decisions with respect to acts and omissions
of the Client or any affiliates and subsidiaries, shall be those
of the Client or such affiliates and subsidiaries, and Consultant
shall under no circumstances be liable for any expense incurred or
loss suffered by the Client as a consequence of such acts or
omissions.
12. INDEMNIFICATION. The Client shall protect, defend, indemnify and
hold Consultant and its assigns and attorneys, accountants,
employees, officers, and directors 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 Client; or (b) any legal action,
including any counterclaim, based on any representation, warranty,
covenant or agreement made by the Client herein; or (c) negligence
or willful misconduct by the Client.
The Consultant shall protect, defend, and hold the Client and its
assigns and attorneys, accountants, employees, officers and
directors harmless from and against all losses, liabilities,
damages, judgments, claims, counterclaims, demands, actions,
proceedings, cost and expenses (including reasonable attorney's
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 except those based on information furnished by
the Client or its representatives: or (b) any legal action,
including any counterclaim, based on any representation, warranty,
covenant or agreement made by the Consultant herein which was not
based on information furnished by the Client; or (c) negligence or
willful misconduct by the Consultant.
13. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent
by:
(a) Registered or Certified Mail to the principal office of
the other party, postage prepaid with return receipt
requested deposited in a proper receptacle of the United
States Postal Service or its successors. Said notice shall
be addressed to the intended recipient. A written notice
sent in conformity with this provision shall be deemed
delivered as of the date shown "delivered" on the return
receipt; or
(b) Transmitted by Prepaid Telegram or by Telephone Facsimile
Transmission if receipt is acknowledged by the addressee
or its fax machine confirmation. Notice so transmitted by
telegram or facsimile transmission shall be effective only
if receipt of transmission is acknowledged by an
appropriate machine or written confirmation and such
notice shall be deemed effective on the next business day
after transmission, or
(c) Notice given in any other manner shall be effective only
if proven to have been received by the addressee.
For purposes of notice, the address of each party shall be
the address set forth above; provided, however, that each
party shall have the right to change his respective
address for notices hereunder to another location(s)
within the continental United States by giving 30 days'
written notice to the other party in the manner set forth
hereinabove.
14. WAIVER OF BREACH. Any waiver by either party of a breach of
any provision of this Agreement by the other party shall not
operate or by construed as a waiver of any subsequent breach
by any party.
15. ASSIGNMENT. This agreement and the rights and obligations of
the Consultant hereunder shall not be assignable without the
written consent of the Client, except that Consultant may
assign this Agreement or any rights received hereunder to
third party providers it may engage to render services
hereunder.
16. 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 Texas and
that in any action, special proceedings or other proceeding
that may be brought arising out of, in connection with or by
reason of this Agreement, the laws of the State of Texas 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.
17. 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.
18. ENTIRE AGREEMENT. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and
supersedes and replaces all prior understanding, agreements,
and negotiations between the parties.
19. WAIVER AND MODIFICATION. Any waiver, alteration, or
modification of any of the provisions of this Agreement shall
be valid only if made in writing signed by the parties hereto.
Each party hereto, may waive any of its rights hereunder
without affecting the waiver with respect to any subsequent
occurrences or transactions hereof.
20. BINDING ARBITRATION. The parties agree that any
controversy or cause of action between the parties hereto
involving any dispute or claim by, through or under, or the
construction or application of any terms, covenants, or
conditions of this agreement or matter arising incident
hereto, shall be submitted to arbitration on the written
request of one party served upon the other and such
arbitration shall comply with and be governed by the
provisions of the Texas Arbitration Act as it may be
amended; Provided, that Arbitration shall be conducted in
Xxxxxx County, Texas and be conducted under the auspices of
the American Arbitration Association ("AAA"). The TAA
Statutes shall apply, and the AAA procedural rules shall
apply if not in conflict with the FAA rules. All evidence
shall be subject to the Texas Rules of Civil Evidence, and
wither party may seek judicial issuance for third party
evidentiary matters or subpoenas. There will be three (3)
Arbiters, one to be selected by Client and one to be
selected by Consultant. The two selected Arbiters will
select a third Arbiter who will be an attorney and former
judge having been licensed for at least 5 years as an
attorney in Texas; and who shall be the administrator of
the panel. If a party does not designate an Arbiter within
10 days after written notice of the commencement of
Arbitration by the other party, then the AAA shall submit a
list of potential Arbiters and the requesting party shall
select at least three Arbiters from the list, who shall
serve as the sole Arbiters. Each party shall on written
demand of the other party, pay one-half of any Arbitration
costs or expenses, and such payments shall be awarded to
the prevailing party as determined by the Arbiters. A party
who fails to pay its one half of any Arbitration costs or
expenses within 10 business days after receipt of written
demand by requesting party shall be deemed to have
defaulted and the Arbiter's shall award all reasonable
relief requested to the non-defaulting party without having
evidence from the defaulting party.
21. 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: CLIENT:
COMPANY COMPANY
BY: _ss Xxxxx Gaal_____________ BY: ___________________________
_______________________________ _______________________________
Its' Authorized Officer Its' Authorized Officer
Signed Date: __________________ Signed Date: __________________
"EXHIBIT A"
Consultant shall provide services to Client as an independent
management consultant. Consultant shall make itself available to consult with
the board of directors, officers, employees and representatives and agents of
the Client at reasonable times, concerning matters pertaining to the overall
business and financial operations of the Client, as well as the organization of
the administrative staff of the Client, the fiscal policy of the Client, as well
as the organization of the problem of importance concerning the business affairs
of the Client. Consultant may, at the request of the Client, assist in the
preparation of written reports on financial, accounting, or marketing matters,
review final information, analyze markets and report to the Client's Chairman of
the Board of Directors or Chief Executive Officer or President or Vice President
or Treasurer on proposed investment opportunities, and develop short and long
term strategic business plans. In addition, Consultant shall provide liaison
services to the Client with respect to the Client's relationships with
unaffiliated third parties. Consultant does not undertake as part of this
Agreement to provide loans, investments or financing for the Client, although
such financial benefits may be made available to Client during the course of
Consultant's engagement. Consultant will not perform any activities that could
subject Consultant or Client to violations of Federal or applicable state
securities law. CONSULTANT IS NOT ENGAGED TO ACT AS AGENT, BROKER, UNDERWRITER,
OR MARKET MAKER FOR THE SECURITIES OF THE CLIENT.
Consultant shall not be required to commence work until the Ten (10)
business days after compensation is delivered, and/or until twenty-one (21) days
from the date of execution of this Agreement.
Consultant shall not be required to render any services under this
Agreement if trading is suspended in Client's stock by the SEC or the NASD, or
if the Client's stock is delisted from trading on the NASD Bulletin Board
trading system.
"EXHIBIT B"
Client shall compensate Consultant (and/or it's affiliates as set forth
below) for its services to be rendered hereunder, a fee equal to the
following.
A. Client will deliver to Consultant a total of $10,000
(ten Thousand Dollars) worth of Free Trading, ie,
non-restricted stock at the current bid price of 0.02 cents as
of April 6, 2004.
