Exhibit 10.4
This Consulting Agreement (this "Agreement") is entered into as of December 20,
2002, by and between ATM Financial Corp. (the "Company"), and Fidelity Services,
Ltd. (the "Consultant").
Recitals
1. Consultant has expertise in the area of the Company's business and is willing
to provide consulting services to the Company.
2. The Company is willing to engage Consultant as an independent contractor, and
not as an employee, on the terms and conditions set forth herein.
Agreement
In consideration of the foregoing and of the mutual promises set forth herein,
and intending to be legally bound, the parties hereto agree as follows:
1. Engagement
(a) The Company hereby engages Consultant to render, as an independent
contractor, the following services:
(i) Incorporation of ATM Financial Corp., including without limitation,
advising on choice of jurisdiction, advising on constating documents,
filing of constating documents, completion and filing of SS-4
application, completion and filing of business license application,
preparation of corporate minute book.
(ii) Advice and consultation on corporate development, and business
planning, including the preparation of the Company's business plan.
(iii)Advice and consultation on all aspects of a single public offering of
securities by the Company, including assisting the Company to draft
and file an SB-2 registration statement with the Securities and
Exchange Commission.
(iv) Securing competent legal counsel in the United States to advise on the
Offering and provide an opinion thereon.
(v) Securing a competent Vancouver-based auditor to audit the Company's
books and records, and to draft audited financial statements in
accordance with US GAAP.
(vi) Design, development and implementation of a branded Web-site on the
Internet that will promote the business of the Company in a manner
that is of equal or better quality than any similar site operated by
the Company's competitors.
(vii)Such further and other services as may generally required for the
successful operation of the Company.
(the "Services")
(b) Consultant hereby accepts the engagement to provide the Services to the
Company on the terms and conditions set forth herein.
2. Term
This Agreement will commence on December 20, 2002, and unless modified by the
mutual written agreement of the parties, shall continue until completion of the
Services. Company may terminate this Agreement upon TEN days written notice to
Consultant.
3. Compensation
(a) In consideration of the services to be performed by Consultant, the Company
agrees to pay Consultant as follows:
(i) $10,000 immediately; and
(ii) $10,000 on completion of the Services.
(b) As further compensation for miscellaneous office expenses, the Company
shall pay to Consultant the sum of $100 USD, which sum shall be due and
payable in advance.
(c) Such further and other out-of-pocket expenses incurred by Consultant that
are authorized by the Company in advance in writing shall be reimbursed by
Company to Consultant.
4. Consultant's Business Activities
(a) During the term of this Agreement, Consultant will engage in no business or
other activities, which are or may be, directly or indirectly, competitive
with the business activities of the Company without obtaining the prior
written consent of the Company.
(b) Consultant shall devote such time, attention and energy to the business and
affairs of the Company as requested by the Company and as reasonably
required to provide the Services.
5. Reserved
6. Interference with the Company's Business
(a) Notwithstanding any other provision of this Agreement, for a period of one
year after termination of this Agreement, Consultant shall not, directly or
indirectly, employ, solicit for employment, or advise or recommend to any
other person that such other person employ or solicit for employment, any
person employed or under contract (whether as a consultant, employee or
otherwise) by or to the Company during the period of such person's
association with the Company and one year thereafter.
(b) Notwithstanding any other provision of this Agreement, and to the fullest
extent permitted by law, for a period of one year after termination of this
Agreement, Consultant shall not, directly or indirectly, solicit any
clients or customers of the Company.
7. Representations and Warranties
Consultant represents and warrants (i) that Consultant has no obligations, legal
or otherwise, inconsistent with the terms of this Agreement or with Consultant's
undertaking this relationship with the Company, (ii) that the performance of the
services called for by this Agreement do not and will not violate any applicable
law, rule or regulation or any proprietary or other right of any third party,
(iii) that Consultant will not use in the performance of his responsibilities
under this Agreement any confidential information or trade secrets of any other
person or entity and (iv) that Consultant has not entered into or will enter
into any agreement (whether oral or written) in conflict with this Agreement.
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8. Indemnification
Consultant hereby indemnifies and agrees to defend and hold harmless the Company
from and against any and all claims, demands and actions, and any liabilities,
damages or expenses resulting therefrom, including court costs and reasonable
attorneys' fees, arising out of or relating to the services performed by
Consultant under this Agreement or the representations and warranties made by
Consultant pursuant to paragraph 7 hereof. Consultant's obligations under this
paragraph 8 hereof shall survive the termination, for any reason, of this
Agreement.
9. Attorney's Fees
Should either party hereto, or any heir, personal representative, successor or
assign of either party hereto, resort to litigation to enforce this Agreement,
the party or parties prevailing in such litigation shall be entitled, in
addition to such other relief as may be granted, to recover its or their
reasonable attorneys' fees and costs in such litigation from the party or
parties against whom enforcement was sought.
10. Entire Agreement
This Agreement, contains the entire understanding and agreement between the
parties hereto with respect to its subject matter and supersedes any prior or
contemporaneous written or oral agreements, representations or warranties
between them respecting the subject matter hereof.
11. Amendment
This Agreement may be amended only by a writing signed by Consultant and by a
representative of the Company duly authorized.
12. Severability
If any term, provision, covenant or condition of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such term, provision, covenant or condition as
applied to other persons, places and circumstances shall remain in full force
and effect.
13. Rights Cumulative
The rights and remedies provided by this Agreement are cumulative, and the
exercise of any right or remedy by either party hereto (or by its successors),
whether pursuant to this Agreement, to any other agreement, or to law, shall not
preclude or waive its right to exercise any or all other rights and remedies.
14. Nonwaiver
No failure or neglect of either party hereto in any instance to exercise any
right, power or privilege hereunder or under law shall constitute a waiver of
any other right, power or privilege or of the same right, power or privilege in
any other instance. All waivers by either party hereto must be contained in a
written instrument signed by the party to be charged and, in the case of the
Company, by an executive officer of the Company or other person duly authorized
by the Company.
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15. Remedy for Breach
The parties hereto agree that, in the event of breach or threatened breach of
this Agreement, the damage or imminent damage to the value and the goodwill of
the Company's business will be inestimable, and that therefore any remedy at law
or in damages shall be inadequate. Accordingly, the parties hereto agree that
the Company shall be entitled to injunctive relief against Consultant in the
event of any breach or threatened breach by Consultant, in addition to any other
relief (including damages and the right of the Company to stop payments
hereunder which is hereby granted) available to the Company under this Agreement
or under law.
16. Agreement to Perform Necessary Acts
Consultant agrees to perform any further acts and execute and deliver any
documents that may be reasonably necessary to carry out the provisions of this
Agreement.
17. Assignment
This Agreement may not be assigned by Consultant without the Company's prior
written consent. This Agreement may be assigned by the Company in connection
with a merger or sale of all or substantially all of its assets, and in other
instances with the Consultant's consent which consent shall not be unreasonably
withheld or delayed.
18. Compliance with Law
In connection with his services rendered hereunder, Consultant agrees to abide
by all federal, state, and local laws, ordinances and regulations.
19. Independent Contractor
The relationship between Consultant and the Company is that of independent
contractor under a "work for hire" arrangement. All work product developed by
Consultant shall be deemed owned and assigned to Company. This Agreement is not
authority for Consultant to act for the Company as its agent or make commitments
for the Company. Consultant will not be eligible for any employee benefits, nor
will the company make deductions from fees to the consultant for taxes,
insurance, bonds or the like. Consultant retains the discretion in performing
the tasks assigned, within the scope of work specified.
20. Taxes
Consultant agrees to pay all appropriate local, provincial and federal taxes.
21. Governing Law
This Agreement shall be construed in accordance with, and all actions arising
hereunder shall be governed by, the laws of the Province of British Columbia.
ATM FINANCIAL CORP. FIDELITY SERVICES, LTD.
Per: /s/ Xxxxxx X. Xxxxx Per: /s/ Xxxx Xxxxx
Xxxxxx X. Xxxxx Xxxx Xxxxx
President President
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