EXHIBIT 10.18
CONSULTING AGREEMENT WITH XXXXXX X. XXXX
CONSULTING AGREEMENT
This Consulting Agreement is made this 21st day of April, 1996 by and
between Xxxxxx Xxxx, an individual at 0000 Xxxxxx Xxx., Xxx. #000, Xxxxxxx
Xxxxx, XX 00000 ("Consultant") and Xxxx Industries Inc., a Nevada corporation,
with its principal offices at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000
("Client").
WHEREAS, Consultant is a Certified Public Accountant and has over ten
(7) years of experience in accounting and in the audit of publicly-held
companies; and
WHEREAS, Client desires to retain the services of Consultant to serve
as Client's Chief Financial Officer, and to advise Client's Board of Directors
and its Audit Committee, and Consultant desires to serve Client on the terms and
conditions set forth below:
1. Engagement
Client agrees to engage Consultant as its Chief Financial Officer, and
to provide Client with advice and financial consulting services, on an
as-needed basis, effective the date hereof and continuing through the
Initial Consulting Period (as defined below).
2. Scope of Services to be Provided
Consultant hereby accepts the engagement on the terms and conditions
set forth in the Agreement and agrees to provide the services which
shall consist of establishing internal controls and procedures to
effect accurate and timely preparation of financial statements and
regulatory reports on Form 10-K, Form 10-Q and Form 8-K, and to be the
individual responsible for the preparation, review and filing of such
reports; establishing sales and disbursement systems; establishing
payroll and inventory methods; assisting Client's Board of Directors in
the analysis of business opportunities, and debt and equity financing
proposals; preparing and/or timely reviewing of financial projections
and preparing budget; preparing capital requirement forecasts and
corporate finance requirements, the coordination of Client's audit,
including preparation of audit schedules, confirmations, reports and
responses to auditors; and, the performance of such additional duties
as requested by Client's Board of Directors (collectively referred to
herein as the "Services"). Consultant may not assign his duties
hereunder unless agreed to in writing with Client. Consultant's failure
to perform the Services shall be deemed a voluntary termination of this
Agreement by Consultant pursuant to Paragraph 12 hereof.
3. Term
This Agreement shall have an initial term ending on June 30, 1996 (the
"Initial Consulting Period"); thereafter, this Agreement will
automatically be extended on a month to month basis (the "Extension
Period") unless Consultant or Client shall serve written notice on the
other party terminating the Agreement; provided, however, that
Consultant and client shall agree in writing as to Consultant's
continuing compensation. Notice to terminate shall be in writing and
shall be delivered at least ten (10) days prior to the end of the
Initial Consulting Period or any subsequent Extension Period as
provided herein. In the event of termination pursuant to this Paragraph
3,
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neither party shall have any further rights or obligations hereunder
after the effective date of such termination, except that the
obligation of Client to pay fees earned and to reimburse costs and
expenses of Consultant incurred prior to the effective date of
termination in performance of the Services shall continue until such
fees, costs, and expenses are paid in full by Client.
4. Time and Effort of Consultant
Consultant shall devote that amount of working time, as necessary, on a
monthly basis, to fulfilling his obligations under this Agreement. The
particular amount of time may vary from day to day or week to week;
provided however, that Consultant shall allocate and be available to
Client for at least eight (8) hours per calendar month. Consultant
agrees that he will at all times, faithfully and to the best of his
experience, ability, and talents, perform all the duties required of
him under this Agreement.
5. Compensation
Compensation to Consultant for the Services provided under this
Agreement shall consist of the following:
(A) For Services as Chief Financial Officer. During the term of
the Agreement Consultant shall be paid a base fee for serving
as Client's Chief Financial Officer, and providing advice
regarding general financial and corporate affairs and growth
strategy, at the rate of Ten Thousand Dollars ($10,000) per
annum, with such fee to be paid bi-monthly in arrears in cash
or in shares of Client's common stock (the "Fee Shares"), at
Client's sole discretion.
(B) Options. As incentive to execute this Agreement, Client grants
to Consultant the option to purchase shares of Client's common
stock (the "Option") consisting of 166,000 shares (the "Option
Shares"), exercisable at a price of $.01 per share (the
"Exercise Price"). Subject to Client's right to terminate, as
defined in Paragraph 12 hereunder, the right of Consultant to
exercise such Option will vest to Consultant monthly in
arrears over the Initial Consulting Term beginning the date
hereof.
6. Registration of Client's Shares
As soon as possible following the date hereof, Client will register the
Option Shares, and the Fee Shares (if any) with the Securities and
Exchange Commission under a Form S-8 registration statement. At
Client's sole discretion, any such shares to be issued to Consultant
may be issued prior to registration in reliance on exemptions from
registration provided by Section 4(2) of the Securities Act of 1933
(the "Act"), Regulation D of the Act, and applicable state securities
laws. Such shares shall be issued in reliance on representations and
warranties of Consultant set forth herein.
7. Costs and Expenses
Unless otherwise agreed and approved in writing between Consultant and
Client, all third party and out-of-pocket expenses, filing fees, copy,
and mailing expenses incurred by Consultant
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performing Services under this Agreement are the responsibility of
Consultant. Any expenses incurred with the previous approval of Client
in carrying out the Services set forth under this Agreement shall be
reimbursed by Client within thirty (30) days of written notice by
Consultant.
8. Place of Services
Except as otherwise mutually agreed by Consultant and Client, the
Services provided by Consultant hereunder will be performed primarily
through Client's offices in Irvine, California, or such other place of
business designated by Client as its principal office.
9. Independent Contractor
Consultant will act as an independent contractor in the performance of
duties under this Agreement. Accordingly, Consultant 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 or business
license fees as may be required.
10. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between Consultant and Client. Consultant is not
authorized to enter into any agreements on behalf of Client. Client
expressly retains the right to approve, in its sole discretion, any and
all transactions introduced by Consultant (if any) and to make all
final decisions with respect to activities undertaken by Consultant
related to this Agreement.
11. Nondisclosure and Nonuse of Confidential Information
Consultant acknowledges that non-public information concerning the
finances, plans, strategies, and overall business operations of Client
is highly confidential and proprietary to Client ("Confidential
Information"). This Confidential Information includes, but is not
limited to, the following:
(A) Non-public information related to the business operations,
including financial and accounting information, plans of
operations, and potential mergers or acquisitions prior to the
public announcement of Client;
(B) Customer lists, call lists, and other non-public customer data
of Client;
(C) Memoranda, notes, records, sketches, plans, drawings, and any
media used to store, communicate, transmit, record, or embody
such Confidential Information of Client;
(D) Information treated, marked, or otherwise identified by Client
as confidential or as trade secrets.
Consultant acknowledges that such Confidential Information represents a
legitimate, valuable, and protectable interest of Client and gives
Client a competitive advantage, which would otherwise be lost if the
Confidential Information was improperly disclosed. Consultant further
acknowledges that unauthorized or improper disclosure or use of
Confidential Information would cause Client
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irreparable harm and injury. Consultant therefore agrees that, in
perpetuity or for as long as the Confidential Information remains
confidential, he will not disclose or threaten to disclose the
Confidential Information to any person, partnership, company,
corporation, or to any other business or governmental organization or
agency without the express written consent of Client, as the case may
be. Consultant further agrees not to use or threaten to use the
Confidential Information in any way that is not specifically authorized
by, or otherwise contrary to the interests of Client, as the case may
be. Consultant agrees that unauthorized disclosure or use of
Confidential Information constitutes misappropriation of trade secrets
and confidential information. Consultant further agrees that all
ownership rights to the Confidential Information are held or retained
by Client, as the case may be, and that no right of ownership shall
pass to Consultant by virtue of this Agreement or the Services provided
hereunder.
12. Termination
(A) Termination for Disability. If during the Initial Consulting
Period, Consultant shall be unable to provide the services as
set forth under this Agreement for twenty (20) business days
because of illness, accident, or other incapacity, Client
shall have the right to immediately terminate this Agreement
upon written notice to Consultant after the end of any such
20-day period. Termination under this Paragraph 12(A) shall be
effective upon receipt by Consultant of such written notice.
(B) Death. In the event of Consultant's death, this Agreement and
all rights and obligations hereunder shall immediately be
terminated.
(C) Termination for Cause. Client may, at its option, terminate
this Agreement by giving written notice of termination to
Consultant without prejudice to any other remedy to which the
Client may be entitled either at law, in equity, or under this
Agreement, if Consultant:
(i) Willfully breaches or neglects the duties, or fails to
timely provide the Services as required under the
terms of this Agreement;
(ii) Fails to promptly comply with and carry out the
directives of Client's Board of Directors;
(iii) Commits any dishonest or unlawful act, in the
judgment of Client's Board of Directors;
(iv) Engages in any conduct which disrupts the business of
Client or any entity affiliated with Client;
(v) Fails to produce work product which, in the judgment
of Client's Board of Directors, is necessary for
Client to comply with requests from auditors or
Consultant's successor, or to timely file reports
required of it.
(vi) Is found to have engaged in conduct, prior to or
subsequent to the date hereof, that may preclude
Client from obtaining any local, state or federal
regulatory approval
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of Client's intent, or application for a license, to
own an interest in or to operate any regulated
business.
(D) Termination Other Than For Cause. This Agreement shall
terminate immediately on the occurrence of any one of
the following events:
(i) The occurrence of circumstances, in the judgment of
Client's Board of Directors, that make it
impracticable for Client to continue its present line
of business;
(ii) The decision of and upon notice by Consultant to
voluntarily terminate this Agreement;
(iii) The loss by Consultant of legal capacity;
(iv) If either party files a petition in a court of
bankruptcy or is adjudicated a bankrupt;
(v) If either party institutes, or has instituted against
it any bankruptcy proceeding for reorganization for
rearrangement of the party's financial affairs;
(vi) If either party has a receiver of the party's assets
or property appointed because of insolvency;
(vii) If either party makes a general assignment for the
benefit of creditors; or
(viii) If either party otherwise becomes insolvent or unable
to timely satisfy all obligations in the ordinary
course of business.
(E) Effect of Termination on Compensation. In the event of the
termination of this Agreement Other Than for Cause prior to
the expiration of the Initial Consulting Period, Consultant
shall be entitled to the compensation earned, and to exercise
by appropriate payment therefore the Option Shares exercisable
prior to the date of termination as provided for in this
Agreement. Consultant shall be entitled to no further
compensation after the date of termination.
13. Representations and Warranties of Client
Client represents and warrants to Consultant that:
(A) Corporate Existence. Client is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Nevada, with corporate power to own property and
carry on its business as it is now being conducted.
(B) Financial Information. Client has or will cause to be
delivered concurrently with the execution of this Agreement,
copies of the Disclosure Documents (as defined in Paragraph
14(D)(1)) which accurately set forth the financial condition
of Client as of the respective dates of such documents.
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(C) Capitalization. The capitalization of Client is, as of the
date hereof, comprised of Thirty -------------- Million
(30,000,000) shares of authorized $.01 par value common
stock of which no more than Twenty Eight Million
(28,000,000) shares are issued and outstanding, with Two
Hundred Fifty Thousand (250,000) shares of Series B
Convertible Preferred Stock issued and outstanding and
Eighteen Million (18,000,000) Warrants and Options to
purchase common stock which, upon exercise will result in at
least Eighteen Million (18,000,000) additional shares of
common stock being issued. All issued and outstanding shares
are legally issued, fully paid, and nonassessable, and are
not issued in violation of the preemptive or other right of
any person.
(D) No Conflict. This Agreement has been duly executed by Client
and the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default
in any agreement, instrument, judgment, decree or order to
which Client is a party or to which Client is subject, nor
will such execution and performance constitute a violation
or conflict of any fiduciary duty to which Client is
subject.
(E) Full Disclosure. The information concerning Client provided
to Consultant pursuant to this Agreement is, to the best of
Client's knowledge and belief, complete and accurate in all
material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required
to make the statements made, in light of the circumstances
under which they were made, not misleading.
(F) Date of Representations and Warranties. Each of the
representations and warranties of Client set forth in this
Agreement is true and correct at and as of the date of
execution of this Agreement.
14. Representations and Warranties of Consultant
Consultant represents and warrants to Client that:
(A) Prior Experience. Consultant has extensive experience in the
area of auditing publicly-held companies and the preparation
of financial statements, establishment of internal control
procedures, tax planning, debt and equity financing, budgeting
and capital requirement analysis.
(B) No Conflict. This Agreement has been duly executed by
Consultant and the execution and performance of this Agreement
will not violate, or result in a breach of, or constitute a
default in any agreement, instrument, judgment, decree or
order to which Consultant is a party or to which Consultant is
subject, nor will such execution and performance constitute a
violation or conflict of any fiduciary duty to which
Consultant is subject.
(C) No Litigation. Consultant is not a defendant, nor plaintiff
against whom a counterclaim has been asserted, in any
litigation, pending or threatened, nor has any material claim
been made or asserted against Consultant, nor are there any
proceedings threatened or pending before any U.S. or other
territorial, federal, state or municipal government, or any
department, board, body or agency thereof, involving as of the
date hereof, that may
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entitle a successful litigant to a claim against any
assets of Consultant, or interfere in any way with the
duties of Consultant hereunder.
(D) Registration and/or Exemption of Client's Shares. Consultant
understands and acknowledges that the Option Shares issued
and any Fee Shares issued pursuant to this Agreement prior
to registration will be so issued in reliance on the
exemptions from registration provided by Section 4(2) or
Regulation D of the Act and applicable state securities
laws. Representations and warranties by Consultant in this
Paragraph will be used and relied upon by Client to
determine whether any issuance of such shares may be made to
Consultant pursuant hereto, and Consultant will notify
Client immediately of any material changes to the
representations made herein. In this regard, Consultant
represents and warrants that:
(1) Consultant has been furnished with a copy of Client's
most recent Annual Report on Form 10-KSB and 10-K and
all reports or documents required to be filed under
Sections 13(a), 14(a), and 15(d) of the Securities and
Exchange Act of 1934 ("Exchange Act"), including but
not limited to quarterly reports on Form 10-QSB or
10-Q, Current Reports on Form 8-K, and Proxy Statement
(the "Disclosure Documents"). In addition, Consultant
has been furnished with a description of Client's
capital structure and any material changes in Client's
financial condition that may not have been disclosed in
the Disclosure Documents.
(2) Consultant has had the opportunity to ask questions and
receive answers concerning the terms and conditions of
Client's shares to be issued pursuant to this
Agreement, and to obtain any additional information
which Client possesses or can acquire without
unreasonable effort or expense necessary to verify the
accuracy of information furnished under this Paragraph.
(3) By reason of Consultant's knowledge and experience in
financial and business matters in general, and
investments in particular, Consultant is capable of
evaluating the merits and risks of this transaction and
in bearing the economic risks of an investment in
Client's shares, and Client in general, and fully
understand the speculative nature of such securities
and the possibility of such loss.
(4) Consultant is fully aware that any of Client's shares
issued to Consultant pursuant to this Agreement prior
to registration will be "Restricted Securities" as
defined by Rule 144 of the Act, and that any resale of
such shares by Consultant may be governed by Rule 144.
(6) Consultant will not sell, transfer or otherwise dispose
of any of Client's shares issued pursuant to this
Agreement prior to registration except in compliance
with the Act.
(7) Any and all certificates representing any of Client's
shares issued pursuant to this Agreement issued prior
to registration of such shares, and any and all
securities
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issued in replacement thereof or in exchange therefore,
shall bear the following legend:
"The shares represented by this certificate
have not been registered under the
Securities Act of 1933 (the "Act") and are
"restricted securities" as that term is
defined in Rule 144 under the Act. The
shares may not be offered for sale, sold, or
otherwise transferred except pursuant to an
effective Registration Statement under the
Act or pursuant to an exemption from
registration under the Act, the availability
of which is to be established to the
satisfaction of the Company."
(E) Full Disclosure. Consultant's resume, and all other
information concerning Consultant provided to Client pursuant
to this Agreement is, to the best of Consultant's knowledge
and belief, complete and accurate in all material respects and
does not contain any untrue statement of a material fact or
omit to state a material fact required to make the statements
made, in light of the circumstances under which they were
made, not misleading.
(F) Non-Compete and Related Agreements.
Consultant agrees that during the Non-competition Period (as
herein defined), unless otherwise agreed with Client in
writing, he will not:
(i) directly or indirectly own, manage, control,
participate in, lend his name to, act as consultant
or advisor to, or render services to (alone or in
association with any other person, firm, corporation
or other business organization) any person or entity
engaged in any business similar to or related in any
way to the business conducted by Client anywhere
within the continental United States,
(ii) have any interest directly or indirectly in any
business engaged in any business similar to or
related in any way to the business conducted by
Client (provided that nothing herein will prevent
Consultant from owning in the aggregate not more than
five percent (5%) of the outstanding stock of any
class of a corporation engaged in the business which
is publicly traded, so long as Consultant has not
participated in the management or conduct of business
of such corporation),
(iii) induce or attempt to induce any other employee of the
Client to leave the employ of the Client or its
affiliates, or in any way interfere with the
relationship between the Client and any other
employee of Client or its affiliates, or
(iv) induce or attempt to induce any customer, supplier,
franchisee, licensee, or other business relation of
Client or any affiliate of Client to cease doing
business with the Client or any affiliate of Client,
or in any way interfere with the relationship between
any customer, franchisee or other business relation
and Client or any affiliate of Client, without the
prior written consent of Client's Board of Directors.
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For purposes of this Agreement, "Non-competition Period" shall
mean the period commencing as of the date hereof and ending on
the second anniversary of the date on which Consultant shall
not be engaged by Client; provided that in the event
Consultant's engagement hereunder is terminated by Client for
any reason other than Cause or other than as provided in
Paragraph 12 above, "Non-competition Period" shall mean the
period commencing as of the date hereof and ending on the
second anniversary date of the termination hereof.
(ii) If, at the time of enforcement of any provisions of
Paragraph 12 above, a court of competent jurisdiction
holds that the restrictions stated therein are
unreasonable under circumstances then existing, the
parties hereto agree that the maximum period or scope
reasonable under such circumstances will be
substituted for the stated period or scope.
(iii) Consultant agrees that the covenants made in this
Paragraph shall be construed as an agreement
independent of any other provision of this Agreement,
and shall survive the termination of this Agreement
for a period of two (2) years.
(G) Soliciting Customers After Termination of Agreement.
Consultant shall not for a period two (2) years immediately
following the termination of his engagement with Client,
either directly or indirectly:
(i) make known to any person, firm or corporation the
names or addresses of any of the customers of Client
or any other information pertaining to them; or,
(ii) call on, solicit, or take away, attempt to call on,
solicit, to take away any of the customers of Client
on whom the Consultant called or became acquainted
with during its engagement with Client, either for
itself or for any other person, firm or corporation.
(H) Date of Representations and Warranties. Each of the
representations and warranties of Consultant set forth in this
Agreement is true and correct at and as of the date of
execution of this Agreement.
15. Indemnification
Client and Consultant 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 a
breach of any representation, warranty, covenant, condition, or
agreement of the other party to this Agreement.
16. Agreement Does not Contemplate Corrupt Practice - Domestic or Foreign
Any and all payments under this Agreement constitute compensation for
services performed and this Agreement and all payments and the use of
the payments by Consultant, do not and shall not constitute an offer,
payment, or promise or authorization of payment of any money or gift to
an
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official or political party of, or candidate for political office in
any jurisdiction within or outside the United States. These payments
may not be used to influence any act or decision of an official, party
or candidate to use his/her/its influence with a government to assist
Client in obtaining, retaining, or directing business to Client, or any
person or other corporate entity. As used in this paragraph, the term
"official" means any officer or employee of a government, or any person
acting in an official capacity for or on behalf of any government; the
term "government" includes any department, agency, or instrumentality
of a government.
17. Inside Information - Securities Laws Violations
In the course of the performance of his duties, Consultant may become
aware of information which may be considered "inside information"
within the meaning of the Federal Securities Laws, Rules and
Regulations. Consultant acknowledges that his use of such information
to purchase or sell securities of Client, or its affiliates, or to
transmit such information to any other party with a view to buy, sell
or otherwise deal in the securities of Client or its affiliates is
prohibited by law and would constitute a breach of this Agreement and
notwithstanding the provisions of this Agreement, will result in the
immediate termination of the Agreement.
18. Exclusive Services
Consultant agrees that the Services to be provided hereunder are
exclusive and, accordingly, Consultant shall not render services of the
same nature or of a similar nature to any other individual or entity
during the term hereof without the written consent of Client; provided
that, if Consultant wishes to consult to or provide services to any
other party, Consultant may voluntarily terminate this Agreement at any
time pursuant and subject to the provisions of Paragraph 12 hereof. On
the other hand, Consultant understands and agrees that Client shall not
be prevented or barred from retaining other persons or entities to
provide services of the same or similar nature as those provided by
Consultant.
19. Specific Performance
Consultant and Client 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.
20. Miscellaneous
(A) Subsequent Events. Consultant and Client each agree to notify
the other party if, subsequent to the date of this Agreement,
either party incurs obligations which could compromise their
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.
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(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 Consultant without the prior written
consent of Client.
(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:
(1) In the case of Client:
Xxxx Industries Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(2) In the case of Consultant:
Xxxxxx Xxxx
0000 Xxxxxx Xxx., Xxx. 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated by Client or
Consultant to receive notice.
(G) Headings. The paragraph and subparagraph headings in this
agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) Counterparts. 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.
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(I) Governing Law. This Agreement was negotiated and is being
contracted for in the State of California, and shall be
governed by the laws of the State of California,
notwithstanding any conflict-of-law provision to the contrary.
(J) 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.
(K) 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 understan dings, 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.
(L) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(M) Facsimile Counterparts. A facsimile, telecopy, or other
reproduction of this Agreement may be executed 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, and 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.
(N) Termination of Any Prior Agreements. Effective the date
hereof, all prior rights of Consultant relating to the accrual
or payment of any form of compensation or other benefits from
Client based upon any agreements other than this Agreement,
whether written or oral, entered into prior to the date
hereof, are hereby terminated.
(O) Consolidation or Merger. Subject to the provisions of
Paragraph 12 hereof, in the event of a sale of the stock, or
substantially all of the stock, of Client, or consolidation or
merger of Client with or into another corporation or entity,
or the sale of substantially all of the operating assets of
the Client to another corporation, entity or individual,
Client may assign its rights and obligations under this
Agreement to its successor-in-interest and such
successor-in-interest shall be deemed to have acquired all
rights and assumed all obligations of Client hereunder;
provided, however, that in no event shall the duties and
services of Consultant provided for in Paragraph 2 hereof, or
the responsibilities, authority or powers commensurate
therewith, change in any material respect as a result of such
sale of stock, consolidation, merger or sale of assets.
(P) Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
[XXXX\AGR:DONGCON.AGR]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
"Consultant"
August----, 1996 /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
"Client"
XXXX INDUSTRIES INC.
a Nevada corporation
By:------------------------------------
Name: Xxxx X. Xxxx
Title: President
[XXXX\AGR:DONGCON.AGR]
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