Exhibit A
SC 13D dated July 10, 0000
Xxxx Xxxxxx Investments, Inc./ CIK 0000893845
CONSULTING AGREEMENT
This Consulting Agreement is made effective this 1ST day of
September 1995 by and between Canton Financial Services, Inc., a
Nevada corporation with offices at 000 Xxxx 000 Xxxxx, Xxxxx 000,
Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter "Consultant") and HYTK
Industries, Inc., a Nevada corporation with offices at 0000 Xxxxx
Xxxxxx Xxxxxxx, Stanford Place III, Suite 201, Denver, Colorado,
80237 (hereinafter referred to as HYTK or "Client") with respect
to the following:
RECITALS
WHEREAS, Consultant is in the business of providing general
business consulting services to privately held and publicly held
corporations; and
WHEREAS, Client desires to retain Consultant to provide
advice relative to corporate and consulting services;
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and adequacy of which is
expressly acknowledged, Client and Consultant agree as follows:
1. Engagement of Consultant.
(a) Consultant agrees to be responsible for taking all
steps necessary to prepare Client for a merger. This includes,
but is not limited to, facilitating efforts to cause Client's
corporate status with the state to be in good standing;
restructuring Client's capital formation possibly through reverse
splits, reauthorization of debt and equity; negotiating the
settlement of outstanding debts and lawsuits; preparing financial
statements and audits; preparing and filing other documents with
the necessary regulatory bodies as is required by law, including,
but not limited to preparing and filing Forms 10-K and 10-Q if
necessary.
(b) Consultant agrees to prospect for, interview and
perform necessary due diligence on potential merger candidates
and to negotiate and structure a merger with potential
candidates.
(c) Consultant agrees to only consider merger candidates
that at a minimum meet NASDAQ listing requirements with respect
to gross assets and net worth.
(d) Consultant further agrees to aid Client in preparation
of Client's 15c2-11, and to use its best efforts to recruit
market makers in order to develop a market for Client's stock.
Additionally, Consultant agrees to prepare press releases and
corporate fact sheets and to perform other public and investor
relations services in an attempt to develop an active market for
Client's stock.
2. Compensation.
Client shall pay Consultant an hourly fee for the consulting
services provided during the Initial Consulting Period (as
defined below) with an option to convert any amounts due to
Consultant for said consulting services into stock of Client.
Client shall pay as a finders fee 1,025,675 shares or, 51%
of the issued and outstanding shares of the company, whichever is
greater, as follows: Park Street Investments, Inc., shall receive
the sum of 102,567 shares; A-Z Professional Consultants, Inc.
shall receive 923,108 shares.
3. Term of Agreement, Extensions and Renewals.
This Agreement shall have an initial term of five years (5)
(the "Initial Consulting Period") from the above date hereon
although if the Consulting Services are completed prior to the
expiration of this time period the agreement may be earlier
terminated and the Consultant paid the base fee. Thereafter,
this Agreement can be extended on a month to month basis (the
"Extension Period") by mutual agreement of the parties executed
in writing specifying the compensation for the Extension Period.
Such notice 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. In the event of termination
pursuant to this paragraph, neither party shall have any further
rights or obligations hereunder after the effective date of such
termination except that the obligation of Client to make payments
as provided for in this Agreement and to reimburse costs and
expenses shall continue until paid in full by Client.
4. Nondisclosure of Confidential Information.
In consideration for the Client entering into this
Agreement, Consultant agrees that the following items used in the
Clients business are secret, confidential, unique, and valuable,
were developed by Client at great cost and over a long period of
time, and disclosure of any of the items to anyone other than
Client's officers, agents, or authorized employees will cause
Client irreparable injury.
A. Non public financial information, accounting
information, plans of operations, possible mergers or
acquisitions prior to the public announcement;
B. Customer lists, call lists, and other confidential
customer data;
C. Memoranda, notes, records concerning the technical
processes conducted by Client;
D. Sketches, plans, drawings and other confidential
research and development data or;
E. Manufacturing processes, chemical formulae, and/or the
composition of Client's products.
5. Due Diligence.
Client shall supply and deliver to Consultant all
information relating to its business as may be reasonably
requested by Consultant to enable Consultant to make such
investigation of Client and its business prospects, and Client
shall make available to Consultant names, addresses and telephone
numbers as Consultant may need to verify or substantiate any such
information provided.
6. Best Efforts Basis.
Consultant agrees that it will at all times faithfully and
to the best of its experience, ability and talents, perform all
the duties that may be required of and from Consultant pursuant
to the terms of this Agreement. Consultant does not guarantee
that its efforts will have any impact on client's business or
that any subsequent financial improvement will result of
Consultant's efforts. Client understands and acknowledges that
the success of failure of Consultant's efforts will be predicated
on Client's assets and operating results.
7. Costs and Expenses.
Consultant agrees to front all hard costs, however Client
agrees that Consultant shall be reimbursed for these hard costs
either in cash or stock, simultaneously with paying the
liabilities currently owed by HYTK. If sufficient cash is not
available to pay both amounts due, Client and Consultant agree to
share the cash on a pro-rata basis, unless otherwise agreed to by
the parties.
8. All Prior Agreements Terminated.
This Agreement constitutes the entire understanding of the
parties with respect to the engagement of Consultant, and all
prior agreements and understandings with respect thereto and
hereby terminated and shall be of no force or effect.
9. Consultant is not an Agent or Employee.
Consultant's obligations under this Agreement consist solely
of the Consulting Services described herein. In no event shall
Consultant be considered to act as the employee or agent of
Client or otherwise represent or bind Client. For the purposes
of this Agreement, Consultant is an independent contractor. All
final decisions with respect to acts of Client or its affiliates,
whether or not made pursuant to or in reliance on information or
advice furnished by Consultant hereunder, shall be those of
Client or such affiliates and Consultant shall under no
circumstances by liable for any expense incurred or loss suffered
by Client as a consequence of such action or decisions.
10. Miscellaneous.
A. Authority. The execution and performance of this
Agreement have been duly authorized by all requisite
corporate action. This Agreement constitutes a valid
and binding obligation of the parties.
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. Waiver. All the rights and remedies of either party
under this Agreement are cumulative and not exclusive
of any other rights and remedies provided by law. No
delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach
of this Agreement shall operate as a waiver of any
subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party
where required hereunder to any act of occurrence shall
not be deemed to be a consent to any other act or
occurrence.
D. Assignment:
(i) Neither this Agreement nor any right created by it
shall be assignable by either party without the
prior written consent of the other;
(ii) Nothing in this Agreement, expressed or implied,
is intended to confer upon any person, other than
the parties and their successors, any rights or
remedies under this Agreement.
E. 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 Consultant to:
Canton Financial Services, Inc.
Attn: Xxxxxx X. Xxxxxxxxxxx
000 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the Case of Client to:
HYTK Industries, Inc.
0000 Xxxxx Xxxxxx Xxxxxxx
Stanford Place III, Suite 201
Xxxxxx, Xxxxxxxx 00000
or to such other person or address designated in
writing to receive notice.
F. Headings and Captions. The headings of paragraphs are
included solely for convenience. If a conflict exists
between any heading and the text of this Agreement, the
text shall control.
G. Entire Agreement. This instrument and the exhibits to
this instrument contain the entire Agreement between
the parties with respect to the transaction
contemplated by the Agreement. It may be executed in
any number of counterparts but the aggregate of the
counterparts together constitute only one and the same
instrument.
H. Effect of Partial Invalidity. In the event that any one
or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement
shall be constructed as if it never contained any such
invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and
performance of this Agreement shall be controlled by
and construed under the laws of the State of Utah, the
state in which this Agreement is being executed.
J. Attorney's Fees. If any action at law or in equity,
including an action for declaratory relief, is brought
to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to
recover actual attorney's fees from the other party.
The attorney's fees may be ordered by the court in the
trial of any action described in this paragraph or may
be enforced in a separate action brought for
determining attorney's fees.
K. Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate
with each other to achieve the purpose of this
Agreement, and shall execute such other and further
documents and take such other and further actions as
may be necessary or convenient to effect the
transactions described herein.
M. Further Actions. 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 as may be
reasonably necessary to effectuate the purposes of this
Agreement.
N. Indemnification. Client agrees to indemnify, defend
and hold Consultant 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.
O. No Third Party Beneficiary. Nothing in this Agreement,
expressed or implied, is intended to confer upon any
person, other than the parties hereto and their
successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically
states such intent.
P. Facsimile Counterparts. If a party signs this Agreement
and transmits an electronic facsimile of the signature
page to the other party, the party who receives the
transmission may rely upon the electronic facsimile as
a signed original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date herein above written.
HYTK INDUSTRIES, INC. CANTON FINANCIAL SERVICES, INC
By: Xxxxxx Xxxxxxxxx, President By: Xxxxxx Xxxxxxxxxxx, President
