EXHIBIT 10(xii)
CONSULTING AGREEMENT WITH XXXX XXXX
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made this 14th day of February
2003, by and between Xxxx X. Xxxx, doing business as MediaOne a California sole
proprietorship ("Advisor") and U.S. West Homes Inc., a Nevada corporation (the
"Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have
experience in evaluating and effecting mergers and acquisitions, supervising
corporate management, and in performing general administrative duties for
publicly-held companies and development stage investment ventures; and
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in its development on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and Advisor
agree as follows:
1. ENGAGEMENT
The Company hereby retains Advisor, effective the date hereof and
continuing until termination, as provided herein, to assist the Company
in it's effecting the purchase of businesses and assets relative to its
business and growth strategy (the "Services"). The Services are to be
provided on a "best efforts" basis directly and through others employed
or retained and under the direction of Advisor ("Advisor's Personnel");
PROVIDED, HOWEVER, that the Services shall expressly exclude all legal
advice, accounting services or other services which require licenses or
certification which Advisor may not have.
2. TERM
This Agreement shall have an initial term of ninety (90) days (the
"Primary Term"). At the conclusion of the Primary Term this Agreement
will automatically be extended on a month to month basis (the
"Extension Period") unless Advisor or the Company shall serve written
notice on the other party terminating the Agreement. Any notice to
terminate given hereunder shall be in writing and shall be delivered at
least thirty (30) days prior to the end of the Primary Term or any
subsequent Extension Period.
3. TIME AND EFFORT OF ADVISOR
Advisor shall allocate time and Advisor's Personnel as it deems
necessary to provide the Services. The particular amount of time may
vary from day to day or week to week. Except as otherwise agreed,
Advisor's monthly statement identifying, in general, tasks performed
for the Company shall be conclusive evidence that the Services have
been performed. Additionally, in the absence of willful misfeasance,
bad faith, negligence or reckless disregard for the obligations or
duties hereunder by Advisor, neither Advisor nor Advisor's Personnel
shall be liable to the Company or any of its shareholders for any act
or omission in the course of or connected with rendering the Services,
including but not limited to losses that may be sustained in any
corporate act in any subsequent Business Opportunity (as defined
herein), on behalf of the Company, or financing transaction where the
Company provides capital for an interest or rights to a particular
Business Opportunity, or any financial restructuring undertaken by the
Company as a result of advice provided by Advisor or Advisor's
Personnel.
4. COMPENSATION
The Company agrees to pay Advisor a fee for the Services (the "Initial
Fee") by way of the issuance by the Company of One Million (10,000,000)
shares of the Company's common stock (the "Fee Shares"). The Company
further agrees to pay the Advisor a monthly fee of $5,000 per month
which said fee may be also be paid in common stock of the Company.
5. REGISTRATION OF SHARES
No later than ten (10) days following the date hereof as to the Fee
Shares the Company will cause such shares to be registered with the
Securities and Exchange Commission under a Form S-8 or other applicable
registration statement, and it shall cause such registration statement
to be remain effective at all times while Advisor holds such shares. At
Advisor's election, such shares may be issued prior to registration in
reliance on exemptions from registration provided by Section 4(2) of the
Securities Act of 1933 (the "'33 Act"), Regulation D of the '33 Act, and
applicable state securities laws. Such issuance or reservation of shares
shall be in reliance on representations and warranties of Advisor set
forth herein. Failing to register such shares, or maintain the
effectiveness of the applicable registration statement, the Company
shall satisfy any Compensation in cash within ten (10) days of receipt
of Advisor's statement setting out the amount of compensation then due
and payable.
6. COSTS AND EXPENSES
All third party and out-of-pocket expenses of Five Hundred Dollars
($500.00) or more, incurred by Advisor in the performance of the
Services shall be approved in advance by the Company and shall be paid
from the Initial Fee.paid by Advisor.
7. PLACE OF SERVICES
The Services provided by Advisor or Advisor's Personnel hereunder will
be performed at Advisor's offices except as otherwise mutually agreed by
Advisor and the Company.
8. INDEPENDENT CONTRACTOR
Advisor and Advisor's Personnel will act as an independent contractor in
the performance of its duties under this Agreement. Accordingly, Advisor
will be responsible for payment of all federal, state, and local taxes
on compensation paid under this Agreement, including income and social
security taxes, unemployment insurance, and any other taxes due relative
to Advisor's Personnel, and any and all business license fees as may be
required. This Agreement neither expressly NOR impliedly creates a
relationship of principal and agent, or employee and employer, between
Advisor's Personnel and the Company. Neither Advisor nor Advisor's
Personnel are authorized to enter into any agreements on behalf of the
Company. The Company expressly retains the right to approve, in its sole
discretion, each Business Opportunity introduced by Advisor, and to make
all final decisions with respect to effecting a transaction on any
Business Opportunity.
9. REJECTED BUSINESS OPPORTUNITY
If, during the Primary Term of this Agreement or any Extension Period,
the Company elects not to proceed to acquire, participate or invest in
any Business Opportunity identified and/or selected by Advisor,
notwithstanding the time and expense the Company may have incurred
reviewing such transaction, such Business Opportunity shall re-vest
back to and become proprietary to Advisor, and Advisor shall be
entitled to acquire or broker the sale or investment in such rejected
Business Opportunity for its own account, or submit such assets or
Business Opportunity elsewhere. In such event, Advisor shall be
entitled to any and all profits or fees resulting from Advisor's
purchase, referral or placement of any such rejected Business
Opportunity, or the Company's subsequent purchase or financing with
such Business Opportunity in circumvention of Advisor.
10. NO AGENCY EXPRESS OR IMPLIED
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Company and Advisor, or employee and
employer as between Advisor's Personnel and the Company.
11. TERMINATION
The Company and Advisor may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) BY THE COMPANY.
(i) If during the Primary Term of this Agreement or any
Extension Period, Advisor is unable to provide the
Services as set forth herein for thirty (30) consecutive
business days because of illness, accident, or other
incapacity of Advisor's Personnel; or,
(ii) If Advisor willfully breaches or neglects the duties
required to be performed hereunder; or,
(B) BY ADVISOR.
(i) If the Company breaches this Agreement or fails to make
any payments or provide information required hereunder;
or,
(ii) If the Company ceases business or, sells a controlling
interest to a third party, or agrees to a consolidation
or merger of itself with or into another corporation, or
enters into such a transaction outside of the scope of
this Agreement, or sells substantially all of its assets
to another corporation, entity or individual outside of
the scope of this Agreement; or,
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(iii) If the Company has a receiver appointed for its business
or assets, or otherwise becomes insolvent or unable to
timely satisfy its obligations in the ordinary course of
business, including but not limited to the obligation to
pay the Compensation; or,
(iv) If the Company institutes, makes a general assignment
for the benefit of creditors, has instituted against it
any bankruptcy proceeding for reorganization for
rearrangement of its financial affairs, files a petition
in a court of bankruptcy, or is adjudicated a bankrupt;
or,
(v) If any of the disclosures made herein or subsequent
hereto by the Company to Advisor are determined to be
materially false or misleading.
In the event Advisor elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term or
any Extension Period by mutual written agreement, or by the Company for
the reasons set forth in A(i) and (ii) above, the Company shall only be
responsible to pay Advisor for the Compensation up to and including the
effective date of termination. If this Agreement is terminated by the
Company for any other reason, or by Advisor for reasons set forth in
B(i) through (v) above, Advisor shall be entitled to any outstanding
unpaid portion of the balance of the Compensation for the remainder of
the unexpired portion of the applicable term (Primary Term or Extension
Period) of the Agreement.
12. INDEMNIFICATION
Subject to the provisions herein, the Company and Advisor agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of
any representation, warranty, covenant, condition, or agreement of the
other party to this Agreement.
13. REMEDIES
Advisor and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance.
Such remedy, however, shall be cumulative and non-exclusive and shall
be in addition to any other remedy to which the parties may be
entitled.
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14. MISCELLANEOUS
(A) SUBSEQUENT EVENTS. Advisor and the Company each agree to
notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could
compromise its efforts and obligations under this Agreement.
(B) AMENDMENT. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) FURTHER ACTIONS AND ASSURANCES. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents a may be
reasonably necessary to effectuate the purposes of this
Agreement.
(D) WAIVER. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this Agreement
to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to
enforce each and every such provision. No waiver of any breach
of or non-compliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or non-compliance.
(E) ASSIGNMENT. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other.
(F) NOTICES. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the communication
is addressed:
(i) In the case of the Company:
U.S. West Homes, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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(ii) In the case of Advisor:
Xxxx X. Xxxx
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated in writing by
the Company or Advisor to receive notice.
(G) HEADINGS. The section and subsection headings in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) GOVERNING LAW. This Agreement was negotiated and is being
contracted for in the United States, State of Nevada, and
shall be governed by the laws of the State of Nevada, and
United States of America, notwithstanding any conflict-of-law
provision to the contrary.
(I) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
(J) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the
parties relating to the subject matter of this Agreement. No
oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express
or implied, other than as set forth herein, have been made by
any party.
(K) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(L) COUNTERPARTS. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument, by one or more parties hereto and such executed
copy may be delivered by facsimile of similar instantaneous
electronic transmission device pursuant to which the signature
of or on behalf of such party can be seen. In this event, such
execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this
Agreement as well as any facsimile, telecopy or other
reproduction hereof.
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(M) TIME IS OF THE ESSENCE. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date above written.
"Advisor"
Xxxx X. Xxxx
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
The "Company"
U.S. West Homes, Inc.
By: /s/ Xxxxxx Xxxxxx, Xx.
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Name: Xxxxxx Xxxxxx, Xx.
Title
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