Exhibit 10.1
CONSULTING SERVICES AGREEMENT
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This CONSULTING SERVICES AGREEMENT ("Agreement"), made effective this 10th
day of April, 2004, between Xxxxxx International Industries Inc. ("Company"), a
validly existing corporation with its principal office located at 000 Xxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000, and Xx. Xxxxxxx Xxxxxxxx
("Consultant), an individual whose office address is 0000 XX 0xx Xxxxxx, X-000,
Xxxxx, Xxxxxxx.
RECITALS
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I. Company desires to retain Consultant as a non-exclusive Business Advisor to
provide the services described in this Agreement; and
II. Consultant desires to provide such services to Company pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions as
set forth herein, and other valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties agree as follows:
AGREEMENTS
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1. Services: Consultant shall perform for Company the services described in
Exhibit "A" attached hereto and by this reference incorporated herein (the
"Services"), which shall be executed by both parties.
2. Payment for Services: Company agrees to pay Consultant for the Services in
accordance with the schedule contained in Exhibit "B" attached hereto and
by this reference incorporated herein, which shall be executed by both
parties.
3. Cooperation: During the term of this Agreement, the parties shall
communicate, cooperate, and provide each other with ready access to their
respective staff and resources as is necessary to provide the Services and
to otherwise effectuate the purposes of this Agreement.
4. Independent Contractor: Consultant is providing the Services to Company as
an independent contractor, and this Agreement does not create an
employer/employee relationship, nor does this Agreement create a
relationship of joint venturers, partners, associates or any other
relationship between the parties other than that of independent contractor.
Consultant shall be working from its own office, using its own equipment,
and shall have no right to utilize the offices or equipment of Company
unless specifically requested. Consultant shall have the right to retain,
and will be solely responsible for, its own employees, agents, and
representatives. All such persons will be retained by the Consultant at its
own risk, expense, and supervision, and Consultant shall have no right of
compensation or reimbursement from or against Company in connection with
such retention in the absence of a prior written agreement between the
parties. Consultant shall be solely responsible for payment of all taxes as
may be imposed on any income derived by Consultant hereunder and for any
and all other liabilities arising out of Consultant's independent status.
To the extent that Company pays any taxes or other sums on Consultant's
behalf for any reason, Consultant shall promptly indemnify or reimburse
Company for any and all such sums.
5. 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.
Consultant is a natural person. Any monies or other compensation
transferred to Company by Consultant herein is not made with the intent to
raise capital or to provide the Company with capital. Consultant has been
engaged to provide the Company with traditional business, management,
technical and operational consulting, and related business services.
Consultant's engagement does not involve the promotion or marketing of the
Company's securities (including it's common stock), nor does it involve
raising money for the Company.
6. Confidential Information: Consultant acknowledges that during the course of
performance of the Services referenced herein, he may come into possession
of Company's Confidential Information. For the purposes of this agreement,
"Confidential Information" shall mean any information, not generally known
in the trade or industry, which was obtained from Company, or which was
learned, discovered, developed, conceived, originated, or prepared during
or as a result of Consultant's performance hereunder on behalf of Company
and which falls within the following general categories: (i) information
relating to trade secrets; (ii) information relating to existing or
contemplated products, services, technology, designs, computer systems,
computer software and research, or developments; (iii) information relating
to business plans, sales or marketing methods, methods of doing business,
customer lists, customer usages and/or requirements, and supplier
information; (iv) information relating to proprietary computer software not
generally known to the public; and (v) any other confidential information
the parties may wish to protect by patent, copyright, or by keeping such
information secret and confidential.
Consultant understands and agrees that Confidential Information is vitally
important, is critical to the ongoing business of, and is of
immeasurable value to Company. Consultant hereby agrees to hold in the
strictest confidence and to not divulge to anyone, at any time during
or after the termination of this Agreement, any of Company's
Confidential Information, and to not use such information for
Consultant's personal benefit, for the direct or indirect benefit of
any other person, firm, corporation, or entity without the prior
written consent of the other party. Upon termination of this
Agreement, Consultant agrees to deliver to Company all computer disks,
notebooks, and any other data in relation thereto, containing,
embodying, or evidencing any of the Confidential Information or Trade
Secrets described herein.
Consultant acknowledges and agrees that Company will have no adequate
remedy at law if there is a breach or threatened breach of this
Section and, accordingly, that Company shall be entitled to an
injunction against such breach. Nothing herein shall be construed as a
waiver of any other legal or equitable remedies which may be available
to either party if the other party breaches this Section.
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7. Assignment of Work Product: Consultant is performing the Services for
Company at Company's request. Company shall have exclusive ownership of and
title to all products, developments, processes, and techniques that may
result from Consultant's performance hereunder.
8. Warranty: Consultant represents and warrants to Company that he has the
skill, experience, and expertise to perform the duties set forth herein,
and that such duties shall be performed in full compliance with all laws,
statutes, ordinances and rules that may apply to Consultant's performance
thereof. Consultant agrees, at his own expense, to indemnify, defend and
hold harmless Company, and its officers, directors, shareholders,
employees, agents, and representatives against all liability, demands,
claims, costs, penalties, suits, or settlements brought against Company in
any forum whatsoever, if such matters arise from or are related to (i) any
untruth, inaccuracy, misrepresentation, or breach of any of Consultant's
warranties or representations set forth in this Agreement; (ii) any active
or passive negligence on the part of Consultant in the performance of its
duties as set forth herein, and (iii) any failure by Consultant to comply
with all laws, statutes, ordinances, and rules that apply to the
performance of Consultant's duties.
9. Assignment: This Agreement shall be binding upon, and inure to the benefit
of Company, its successors, and assigns. However, Consultant's duties are
personal and may not be delegated by Consultant without Company's express
prior written consent.
10. Term and Termination: This Consulting Services Agreement is for the term of
one year from the date of this Agreement, unless terminated during the
first 90 days after the execution of this Agreement (the "Trial Period").
The Company may terminate this Agreement during the Trial Period without
any further obligation to Consultant.
11. General Provisions:
(a) Notices: Any notice or communication required under this Agreement to
be made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by
registered mail with confirmed receipt (postage prepaid), or delivered
by overnight courier to the address of the party as set forth above.
(b) Titles and Captions: All article and section titles or captions in
this Agreement are for convenience only. They shall not be deemed a
part of this Agreement, and in no way define, limit, extend, or
describe the scope or intent of any of its provisions.
(c) Amendments: No supplement, modification, or amendment of any term,
provision, or condition of this Agreement shall be binding or
enforceable unless executed in writing by the party against whom
enforcement is sought as to such supplementary or modified or amended
term or condition.
(d) Entire Agreement and Waiver: This Agreement constitutes the entire
agreement between the parties hereto, and supersedes all prior and
contemporaneous agreements, arrangements, negotiations, and
understandings between the parties hereto relating to the subject
matter hereof. There are no other understandings, statements, promises
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or inducements, oral or otherwise, contrary to the terms of this
Agreement. No representations, warranties, covenants, or conditions,
express or implied, whether by statute or otherwise, other than as set
forth herein have been made by any party hereto. No waiver of any
term, provision, or condition of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or
shall constitute, a waiver of any other provision hereof, whether or
not similar, nor shall any such waiver constitute a continuing waiver,
and no waiver shall be binding unless executed by the party making
such waiver.
(e) Third Parties: Nothing in this Agreement (whether express or implied)
is intended to confer upon any person other than the parties hereto
and their respective successors and permitted assigns, any rights or
remedies under or by reason of this Agreement, nor is anything in this
Agreement intended to relieve or discharge the liability of any other
party hereto, nor shall any provision hereof give any entity any right
to subrogation against or action over against any party.
(f) Counterparts: This Agreement may be executed in one or more
counterparts, each of which together shall constitute one and the same
instrument.
(g) Invalidity of Provisions: If any provisions of this Agreement is or
becomes wholly or partly invalid, illegal, or unenforceable: (i) the
validity, legality, and enforceability of the remaining provisions
shall continue in force unaffected, and (ii) the parties shall meet as
soon as possible and negotiate in good faith upon a replacement
provision that is legally valid and that as nearly as possible
achieves the objectives of the Agreement and produces an equivalent
economic effect, which replacement provision shall apply as of the
date that the replaced provision had become invalid, illegal, or
unenforceable.
(h) Force Majeure: Any prevention, delay, or stoppage due to causes beyond
the parties' control, including, but not limited to, acts of God,
public enemies, war, civil disorder, fire, flood, explosion, labor
disputes or strikes, or any acts or orders of any governmental
authority, inability to obtain supplies or materials (including,
without limitation, computer hardware), shall excuse the performance
of that party of its obligations hereunder for a period equal to any
such prevention, delay, or stoppage.
(i) Governing Law/Arbitration: This Agreement shall be construed and
governed in accordance with the laws of the State of New York, U.S.A.
without regard to any conflicts of law rules. Any controversy or claim
arising out of or relating to this Agreement shall be determined by
arbitration in accordance with the International Arbitration Rules of
the American Arbitration Association. The number of arbitrators shall
be one (1) and the place of arbitration New York, and the language of
the arbitration shall be in English. The arbitrator's award shall be
specifically enforceable in any court of appropriate jurisdiction and
shall be deemed final for all purposes. In any arbitration or legal
action brought to enforce the provisions hereof, the prevailing party
in such action shall be entitled to have its reasonable attorney's
fees, arbitration costs, and litigation expenses paid by the
non-prevailing party.
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(j) Survivability: The provisions of Paragraphs 5, 6, and 7 shall survive
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the day
and year written above.
Xxxxxx Financial Corporation Xxxxxxx Xxxxxxxx
By: ____/S_______________________ By:__/S___________________________
Name:__Mitchell Segal____________
Title:___President ________________
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EXHIBIT "A"
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Services
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Consultant shall provide Company with the following Advisory services:
1. Review of Current Business Operations.
2. Interviews with Key Management and Board of Directors.
3. Review of Business Plan and advice concerning the Company's business
initiatives.
4. Industry Research.
5. Strategic Relationship introductions with distribution channels for
the Company's product.
6. Insurance industry introductions.
7. Introductions to potential Board Members
8. Acquisition Opportunities
9. Web site analysis
10. Web site marketing analysis
11. Other advice as needed.
While Consultant as an array of experience, this Agreement is for advisory
services only. Any other consulting would fall under a separate contract.
Specifically, Company understands that Consultant is not offering any corporate
finance related or legal related advise. Compensation to Consultant is solely on
the basis of the services outlined in this Agreement.
Xxxxxx Financial Corporation Xxxxxxx Xxxxxxxx
By:___/s/_____________________ By:____/s/______________________
Name:__Mitchell Segal_________
Title:_President________________
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EXHIBIT "B"
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Rate of Payment for Services
In consideration for Services to be rendered by the Consultant pursuant to
this Agreement, Company shall provide Consultant with the following:
1. 150,000 shares of the Company's common stock and 50,000 options to
acquire the Company's shares carrying an exercise price of $ .20
pursuant to the Company's 2002 Equity Incentive Plan (the "Plan"). The
Company covenants and agrees to use its best efforts to cause the
shares issuable under the Plan to be registered under the Securities
Act of 1933. The Company further covenants and agrees that within 5
days of the effectiveness of such registration it will execute a
written request to its transfer agent to prepare and deliver, per
Consultant's instructions, one or more stock certificates for the
Company's shares of common stock, in a freely tradable, non legend
form. Within 60 days after the execution of this Agreement, the
Company shall issue an additional 150,000 shares of the Company's
common stock and 50,000 options to acquire the Company's shares
carrying an exercise price of $ .20 pursuant to the Company's 2002
Equity Incentive Plan (the "Plan"). The Company covenants and agrees
to use its best efforts to cause the shares issuable under the Plan to
be registered under the Securities Act of 1933. The Company further
covenants and agrees that within 5 days of the effectiveness of such
registration it will execute a written request to its transfer agent
to prepare and deliver, per Consultant's instructions, one or more
stock certificates for the Company's shares of common stock, in a
freely tradable, non legend form.
2. Expenses: Pre-approved expenses shall be reimbursed within fourteen
(14) days of a valid, pre-approved expense report being submitted to
the Company.
Xxxxxx Financial Corporation Xxxxxxx Xxxxxxxx
By:____/s/____________________ By:_____________________________
Name:__Mitchell Segal________
Title:_President________________
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