EXHIBIT 4.5
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT (this "Agreement") is entered into as of
June 11, 2004 by and between ACS Holdings, Inc., a Nevada corporation (the
"Company"), and Xxxxxxxx Xxxxx (the "Consultant").
RECITALS
A. The Company desires to be assured of the association and services of
Consultant and to avail itself of Consultant's experience, skills, abilities,
knowledge and background and is therefore willing to engage Consultant upon the
terms and conditions set forth herein; and
B. Consultant agrees to be engaged and retained by the Company upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. Consulting Services. Consultant shall provide accounting advice and
services (the "Consulting Services") to the Company.
2. Term. The term of this Agreement shall commence as of the date hereof
and shall be effective a period of one year (the "Term"). This agreement may be
extended under the same terms by mutual agreement between Consultant and the
Company.
3. Direction, Control and Coordination. Consultant shall perform the
Consulting Services under the sole direction and with the approval of the
Company's Board of Directors or an officer of the Company to whom such direction
is delegated by resolution of the Board of Directors.
4. Dedication of Resources. Consultant shall devote such time, attention
and energy as is necessary to perform and discharge the duties and
responsibilities under this Agreement in an efficient, trustworthy and
professional manner.
5. Standard of Performance. Consultant shall use its best reasonable
efforts to perform its consulting services as an advisor to the Company in an
efficient, trustworthy and professional manner. Consultant shall perform his
consulting services to the sole satisfaction of, and in conjunction and
cooperation with, the Company.
6. Compensation. The Company shall pay to Consultant a total of four
million, one hundred sixty-six thousand, six hundred sixty-seven (4,166,667)
shares of common stock of the Company (the "Common Stock") in exchange for the
Consulting Services. The Shares shall not be offered, sold or issued until such
time as they are registered pursuant to Section 7 hereof. Proceeds from the sale
of the Shares shall be credited against amounts due and owing pursuant to the
Engagement Letter.
7. Registration of the Common Stock. Commencing on the date hereof, the
Company shall use its best efforts to promptly register the Common Stock
pursuant to the Securities Act of 1933, as amended, on Securities and Exchange
Commission ("SEC") Form S-8. Consultant hereby covenants that if he becomes a
director, officer, holder of ten percent (10%) of the equity and/or voting
securities of the Company, or is, or becomes an "affiliate" of the Company (for
the purposes of this Agreement, "affiliate" shall mean an affiliate of, or
person affiliated with, a specified person that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with, the person specified), he or she will not offer to sell or resell
the Common Shares registered on Form S-8, except pursuant to the provisions of
SEC Rule 144, pursuant to a reoffer prospectus in compliance with Form S-8 or
pursuant to such other registration statement acceptable to the Company in its
sole discretion.
8. Additional Covenants. Consultant covenants that it shall not engage in
any activities which are in connection with the offer or sale of securities of
the Company in a capital-raising transaction or directly or indirectly promote
or maintain a market for the Company's securities.
9. Confidential Information. Consultant recognizes and acknowledges that
by reason of performance of Consultant's services and duties to the Company
(both during the Term and before or after it) Consultant has had and will
continue to have access to confidential information of the Company and its
affiliates, including, without limitation, information and knowledge pertaining
to products and services offered, inventions, innovations, designs, ideas,
plans, trade secrets, proprietary information, advertising, distribution and
sales methods and systems, and relationships between the Company and its
affiliates and customers, clients, suppliers and others who have business
dealings with the Company and its affiliates ("Confidential Information").
Consultant acknowledges that such Confidential Information is a valuable and
unique asset and covenants that it will not, either during or for three (3)
years after the term of this Agreement, disclose any such Confidential
Information to any person for any reason whatsoever or use such Confidential
Information (except as its duties hereunder may require) without the prior
written authorization of the Company, unless such information is in the public
domain through no fault of the Consultant or except as may be required by law.
Upon the Company's request, the Consultant will return all tangible materials
containing Confidential Information to the Company.
10. Relationship. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the parties, and
may not be construed as an employment agreement. No officer, employee, agent,
servant, or independent contractor of Consultant nor its affiliates shall at any
time be deemed to be an employee, agent, servant, or broker of the Company for
any purpose whatsoever solely as a result of this Agreement, and Consultant
shall have no right or authority to assume or create any obligation or
liability, express or implied, on the Company's behalf, or to bind the Company
in any manner or thing whatsoever.
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11. Notices. Any notice required or desired to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered, sent by an overnight courier service, or sent by certified or
registered mail to the following addresses, or such other address as to which
one party may have notified the other in such manner:
If to the Company: ACS Holdings, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Consultant: Xxxxxxxx Xxxxx
00-X Xxxxxxx xx Xxxxxx
Xxxxxx, XX 00000
12. Applicable Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the State of
Washington.
13. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions of this Agreement.
14. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by such party. No waiver shall be valid unless
in writing and signed by an authorized officer of the Company or Consultant.
15. Assigns and Assignment. This Agreement shall extend to, inure to the
benefit of and be binding upon the parties hereto and their respective permitted
successors and assigns; provided, however, that this Agreement may not be
assigned or transferred, in whole or in part, by the Consultant except with the
prior written consent of the Company.
16. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to its subject matter. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
17. Counterparts. This Agreement may be executed by facsimile and in
counterparts each of which shall constitute an original document, and both of
which together shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
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The Company: ACS HOLDINGS, INC.
By:
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Name: Xxxxxx X. Xxxxx XX
Title: President and Chief Executive
Officer
The Consultant:
By:
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Name: Xxxxxxxx Xxxxx
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