Exhibit 10.41
CONSULTANCY AGREEMENT
This Agreement is made this 1st day of January, 2005 (the "Agreement")
between
(1) Reuadnal Limited, of 0 Xxxxxxxxxx Xxxx Xxxxxx X00 0XX ( "Reuadnal")
(2) Xxxxx Xxxxxxxx of Park Cottage Bepton West Sussex GU29 OJB (the
"Consultant") and
(3) Avenue Group, Inc., a Delaware corporation (the "Company")
WHEREAS
A. Reuadnal is engaged in business including that of providing business
and financial consulting services. The Consultant is an employee of
Reuadnal.
B. The Company desires to engage Reuadnal and through it the Consultant
on a non-exclusive basis to render consulting services to the Company.
C. Reuadnal agrees to be engaged and retained by the Company, and to
provide the services of the Consultant, upon the terms and conditions
set forth herein.
IT IS AGREED AS FOLLOWS
2. Engagement: The Company hereby engages Reuadnal and Reuadnal hereby
accepts the engagement to provide the business and financial services
of the Consultant to the Company, to render advice, consultation,
information and services to the Company and its officers and directors
regarding general financial and business matters (the "Services"),
including, but not limited to:
(a) assisting the Company in advancing its strategic plan relative
to the identification of, and communication with, corporate finance
joint venture partners relating to the Company's overall business plan;
(b) identifying and/or introducing potential investors
It is understood and agreed by the parties hereto that:
(i) the sole function of the Consultant will be to bring potential
investors and the Company together; and
(ii) neither Reuadnal or the Consultant will engage in, nor shall
the Consultant be responsible to render any advice or participate
in, any further corporate activities after the making of such
introductions relative to such Services
3. Compliance: The Consultant hereby undertakes to perform its Services
under this Agreement in a manner consistent
with the instructions of the Company, and the Consultant shall:
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(a) Introduce only persons whom the Consultant reasonably believes
are "accredited investors";
(b) Introduce only persons with whom the Consultant has a prior
relationship; and
(c) Not solicit potential investors by means of general solicitation
or general advertising.
4. Acting as Finder Only and Indemnity: It is understood that Reuadnal
and/or the Consultant is acting as a finder only, is not a licensed
securities broker or dealer, and shall have no authority to enter into
any commitments on the Company's behalf, or to negotiate the terms of
the Offering or to hold any funds or securities in connection with the
Offering or to perform any act which would require the Consultant to
become licensed as a securities broker or dealer.
5. Reports to the Company. During the Term of this Agreement, Reuadnal
and the Consultant agree to use reasonable endeavours to keep the
Company informed at the Company's reasonable request for information
about the Consultant's activities in discharge of his duties hereunder.
6. No Power to Bind. Neither Reuadnal nor the Consultant shall have
power to bind the Company to any contract or obligation or to transact
any business in the Company's name or on behalf of the Company in any
manner and the Company shall have no right to compel Reuadnal or the
Consultant to undertake any particular tasks in the performance of this
Agreement.
7. No Offer to Sell to be Made. Neither Reuadnal or the Consultant will
in any manner offer or sell any of the Company's securities, including
its $.0002 par value common stock (the "Common Stock"), or recommend
that such persons invest in the Company, nor discuss with such persons
the terms of any offering of the Company's securities or any other
basis upon which such persons might negotiate with the Company;
Furthermore, in the performance of their Services hereunder Reuadnal
and the Consultant agree not to offer or sell any securities of the
Company, to any United States citizen or resident, or engage in any
other capital raising activities in the United States, unless such
offers, sales, and/or capital raising activities are conducted through
a U.S. licensed broker/dealer and are first approved in writing by the
Company and then only if it is in full compliance with the requirements
of applicable U.S. federal and state securities laws.
8. Term. The term of this Agreement shall commence as of the date
hereof and continue until September 20, 2005 (the "Term")
9. Fees: As consideration for this Agreement the Company agrees to pay
Reuadnal a non-refundable consulting fee of US$80,000 (the "Consultancy
Fee") of which US$35,000 is payable on the signing of this Agreement
and the balance of US$45,000 is payable at the rate of US$5,000 payable
on each monthly anniversary date of this Agreement during the Term
hereof commencing on January 14, 2005 by wire transfer to the
Reuadnal's bank account without deductions or withholdings, time to be
of the essence for the purposes of payment. The Company may, at it's
own election, pay the balance of any sum then remaining due, at any
time.
10. Exclusivity; Performance; Confidentiality. The services of
Reuadnal/Consultant hereunder shall not be exclusive, and they may
perform similar or different services for other persons or entities
whether or not they are competitors of Company. Reuadnal and the
Consultant make no representations of any kind or nature as to whether,
or not, their services to Company will be helpful to the Company, or
successful in the eyes of the Company, and shall only be required to
expend such time as they deem necessary or appropriate to perform the
Services hereunder. In addition, Company's engagement of
Reuadnal/Consultant is on a non-exclusive basis and Company may engage
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one or more other consultants during the Term hereof to perform similar
or comparable services to those being rendered by the Consultant
pursuant to this Agreement.
Reuadnal and the Consultant acknowledge and agree that in the course of
his duties they may obtain confidential and valuable non-public or
proprietary information regarding or pertaining to the Company during
the Term hereof (the "Confidential Information"). Reuadnal and
Consultant agree not to, directly or indirectly, disclose, without the
prior written consent of the Company, such Confidential Information to
any other party except as necessary in the discharge of the Services.
Confidential Information shall cease being deemed Confidential
Information once it is disclosed or is otherwise known to the public
generally, unless it is only in the public domain by reason of the
Consultant's breach of this sub-clause. All such Confidential
Information which has been provided to Consultant or its
representatives which is in writing shall be clearly and conspicuously
marked with the word "Confidential."
11. Independent Contractor: It is agreed that the Consultant is not
engaged in any employment relationship with the Company, but is
employed by Reuadnal. He shall complete the Services required hereunder
according to his own means and methods of work, and he shall not be
subject to the control or supervision of the Company, except as to the
results of the work and as otherwise expressly provided herein. The
Company acknowledges that nothing in this Agreement shall be construed
to require Reuadnal or the Consultant to provide any particular
services, including the Services, to the Company at any specific time,
or in any specific place or manner, unless otherwise mutually agreed.
Payments to consultant hereunder shall not be subject to withholding
taxes or other employment taxes, penalties, or interest charges
whatsoever, and shall be paid gross.
12. Representations of Consultant and Company. Neither Reuadnal or the
Consultant are registered as a "broker/dealer" under the Securities
Exchange Act of 1934, as amended, nor does Company believe such
registration is required in order for Company to engage the services of
the Consultant through Reuadnal. As to matters within his control, the
Company represents and warrant to Reuadnal and the Consultant that:
(a) payment of the Consulting Fee in this Agreement will be in full
compliance with all applicable state and Federal securities laws;
and
(b) the performance of the Services by Reuadnal and the Consultant
shall not violate any provision of law (including, without
limitation state and Federal securities laws).
13. Expenses. Reuadnal and the Consultant shall be responsible for all
of their own expenses in connection with the performance of the
Services, unless otherwise agreed to or approved by the Company in
writing and transmitted to Consultant on paper, in electronic mail, by
Telefax, or other document transmittal. Notwithstanding the above, the
Company shall reimburse Reuadnal for any expenses up to an amount of
US$300 incurred by Reuadnal provided that the Company, in its
discretion, agrees to do so and provides Reuadnal with written
authorization prior to incurring such expenses.
14. Notices. Any notice, report or demand required, permitted or
desired under this Agreement shall be sufficient if in writing and
delivered by certified mail, return receipt requested or Federal
Express (or similar courier) at the following addresses (or such other
addresses designated by proper notice):
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To the Company: Xxxx Xxxxxxx
President and CEO
Avenue Group, Inc.
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 0000 000 0000
With a copy to: Xxxxx X. Xxxxxx, a Professional Corporation
Jeffer, Mangels, Xxxxxx & Marmaro, LLP
0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Or as the case may be
To Reuadnal and/or
the Consultant: Xx. Xxxxx Xxxxxxxx
c/o Reuadnal Limited
0 Xxxxxxxxxx Xxxx
Xxxxxx X000XX
Xxxxxxx
Facsimile: 01730 812731
15. Jurisdiction and Governing Law. By excluding any other place of
feasible jurisdiction, the place of legal jurisdiction with respect to
the terms and conditions of this Agreement, the interpretation thereof
or any dispute with respect hereto, is agreed to be the law of the
State of California. Furthermore, the parties agree that any dispute
between the parties arising out of or relating to this Agreement shall
be governed by the substantive laws of the State of California.
16. Severability. If any term, condition or provision of this Agreement
or the application thereof to any party or circumstances shall, at any
time or to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, condition or provision
to parties or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term,
condition and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
17. Assignment. The rights granted hereunder to Reuadnal and/or the
Consultant and the Services to be provided are personal in nature
between Reuadnal and/or the Consultant and the Company and cannot be
assigned without the written agreement of all parties Any purported
transfer of any such rights not specifically authorized pursuant to
this Agreement shall be void and shall also constitute a breach of this
Agreement.
18. Release:
(a) Released Matters. As of the date hereof, Reuadnal and the
Consultant on the one hand and the Company on the other hand hereby
release and absolutely and forever discharge one another and their
respective agents, attorneys representatives, assigns, transferees,
predecessors in interest, successors in interest, affiliates,
subsidiaries, joint venturers, partners, and its employees,
officers, directors, heirs, legatees, executors, administrators, and
servants (all of which for convenience are hereinafter referred to
as "Released Parties"), and absolutely and forever discharge them
from, and shall indemnify and hold the respective Parties' Released
Parties harmless from and against, any and all rights, claims,
demands, damages, debts, liabilities, accounts, obligations,
reckonings, liens, attorney's fees, costs, expenses, actions and
causes of action of every kind and nature whatsoever, whether now
known or unknown, suspected or unsuspected, based upon statute,
common law or otherwise, which Readnal/Consultant on the one hand
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and the Company on the other hand has, own or hold, or at any time
heretofore ever had, owned or held, or may hereafter have, own or
hold based upon or related to any fact, thing, act, event,
happening, inaction or omission occurring or existing at any time up
to and including the date hereof, including but not limited to
claims of the Consultant arising out of or relating to:
(i) the Company; or
(ii) any compensation or benefit of any nature whatsoever which
may be due Consultant or which may become due Consultant as a
result any services rendered by Consultant to or on behalf of
the Company prior to the date hereof, or
(iii) any claims arising out of or relating to any prior
contract, agreement or understanding with the Company, including
any claims relating to or arising out of relating to a proported
November 7, 2003 agreement between the Company and Consultant
PROVIDED THAT nothing in this Section is intended to affect
(iv) any parties rights deriving from this Agreement, or
(v) all and any rights of the Consultant deriving from his
shareholding in, and as a shareholder in, the Company
All matters release pursuant to this Section 19, hereinaftrer
referred to as the "Released Matters."
(b) No Admissions. Neither this Agreement nor anything contained
herein shall be admissible in any proceeding as evidence of or an
admission by any Party of any wrongdoing, liability or violation of
any law or regulation within the jurisdictoin of England and Wales
or of the state of California. This Agreement may be introduced into
a legal proceeding solely for the purpose of enforcing this
Agreement and the provisions hereof.
(c) Covenant Not to Xxx, No Prior Assignment. the Company and the
Consultant represents and warrants that neither of them have
heretofore assigned or transferred to any person or entity any
rights he has or matter released herein, including but not limited
to Consultant's rights and interests in and to compensation or
expense reimbursement. The Parties further agree that as of the date
hereof the effectiveness of Releases with respect to the Released
matters in this clause above shall become irrevocable. The Parties
hereby covenant and agree that they will forever refrain and
forebear from commencing, instituting or prosecuting any lawsuit,
action or other proceeding against the other arising out of, or in
connection with any of the matters released in this Agreement.
19. Miscellaneous. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and
no waiver shall constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver. No
supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties. This Agreement
constitutes the entire agreement between the parties and supersedes any
prior agreements or negotiations with respect to the subject matter
hereof. This Agreement may be executed in counterparts, and all
counterparts will be considered as part of one agreement binding on all
parties to this Agreement. This Agreement may be executed via
facsimile, which signatures shall be deemed legal and binding as an
original signature hereto.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on the date first written above.
"Consultant"
XXXXX XXXXXXXX
Signature: /s/ Xxxxx Xxxxxxxx
------------------
"REUADNAL"
Signature /s/ Xxxxx Xxxxxxxx
------------------
"Company"
AVENUE GROUP, INC.
Signature: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: President and CEO
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