EX-10.5
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective the 18th day
of July, 2001, between Xxxxxxx X. Xxxxxxxxx, an individual
("Consultant") and xXxx.xxx, Inc. ("Client").
In consideration of the mutual promises, covenants and agreements
contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Client and Consultant agree as follows:
1. ENGAGEMENT OF CONSULTANT. The Client engages Consultant to
provide the consulting services described below, during the term of
this Agreement, until this Agreement is terminated as provided herein.
2. SCOPE OF SERVICES TO BE PROVIDED BY CONSULTANT. Consultant
agrees to provide, and the Client agrees to pay for, the following
consulting services (collectively referred to as the "Services"):
(a) advice and assistance with a large real estate transaction in
Elko County, Nevada involving Royal Oasis Corporation; provided,
however, that the Services are expressly agreed to exclude all legal
advice, accounting services or other services which require licenses
or certification. Moreover, the parties expressly agree that all
such Services rendered or to be rendered by Consultant will not be
connected with capital-raising, directly or indirectly promoting or
maintaining a market for Client's securities, or performing a reverse
merger with a publicly quoted "shell" company.
All Services are to be provided on a "best efforts" basis through
Consultant's officers, or others employed or retained under the
direction of Consultant (collectively "Consultant's Personnel").
3. TERM. This Agreement shall have an initial term of sixty (60)
days (the "Primary Term"), starting with the date appearing at the
top of this Agreement (the "Effective Date"), and it may be renewed
by written notice of renewal signed by both parties to this Agreement.
4. COMPENSATION. In consideration of the Services contemplated by
this Agreement, Client agrees to pay Consultant the following fees
for the Services:
A. Initial Retainer Fee. In order to retain the Services of
Consultant, and to compensate Consultant for sacrificing other
opportunities in order to serve Client, Client agrees to
transfer, or cause to be transferred, Three Million Seven
Hundred Fifty Thousand (3,750,000) shares of the Client's common
stock in the following manner: (1) Three Million Seven Hundred
Fifty Thousand (3,750,000) shares of free-trading common stock
in Client's company, issued pursuant to an S-8 registration
statement under the Securities Act of 1933. All such stock
issued is agreed to be a non-refundable retainer fee. The
parties agree that such stock is deemed fully paid and non-
assessable as of July 18, 2001.
B. Additional Payments for Additional Services. Client may
agree to issue additional shares, and Consultant may agree to
perform additional services. Such additional shares paid or
additional services performed shall be deemed to be subject to
all the terms of this Agreement, including the agreement that
such shares shall be issued in a private, exempt transaction
under Section 4(2) of the Act.
5. COSTS AND EXPENSES - All third-party and out-of-pocket expenses
incurred by Consultant in performing the Services shall be paid by
the Client, or shall be reimbursed by Client if paid by Consultant on
behalf of the Client, within ten (10) days of receipt of written
notice by Consultant, provided that the Client must approve in
advance all expenses in excess of $500 per month. Expenses include
but are not limited to the following: (a) filing fees for any forms
required by state or federal agencies; (b) transfer agent fees,
including fees for printing of stock certificates; (c) long distance
telephone and facsimile costs; (d) copying, mail and Federal Express
or other express delivery costs; (e) fees associated with obtaining
or providing Consultant with Client's audited financial statements.
6. COMPENSATION FOR OTHER SERVICES. If the Client after the date
hereof enters into a merger or acquisition, or enters into an
agreement for the purchase of assets, as a direct or indirect result
of Consultant's efforts, the Client agrees to pay Consultant in the
manner described below.
If Consultant provides any material assistance to the Client in a
merger, acquisition or asset purchase of an entity ("Business
Opportunity"), which assistance includes (but is not limited to)
introducing the Business Opportunity to the Client or helping to
prepare documents used in negotiating such Business Opportunity,
Client agrees to pay Consultant 9.9% of the gross value of such
transaction with a Business Opportunity ("M&A Fee").
If the Client acquires any asset or obtains any payment or other
benefit, other than a Business Opportunity described above, as a
result of Consultant's Services (an "Asset Opportunity"), the Client
agrees to pay Consultant 9.9% of the gross value of such Asset
Opportunity ("Consultant's Fee").
The Client will pay each M&A Fee or Consultant's Fee in cash, shares
of the Client's stock or the stock of the Business Opportunity or the
Asset Opportunity, or in like kind. Consultant has the sole option
to choose the form of payment. Such payment shall be made on the
date the Client substantially completes the transaction involved.
7. TIME AND EFFORT OF CONSULTANT. Consultant may allocate its time
and that of Consultant's Personnel as it deems necessary to provide
the Services. In the absence of willful misfeasance, bad faith, or
reckless disregard for the obligations or duties of Consultant under
this Agreement, neither Consultant nor Consultant's Personnel shall
be liable to Client or any of its shareholders for any act or
omission connected with rendering the Services, including but not
limited to losses due to any corporate act undertaken by Client as a
result of advice provided by Consultant or Consultant's Personnel.
8. BEST EFFORTS - The Services are rendered to Client on a "best
efforts" basis, meaning that Consultant can not, and does not,
guarantee that its efforts will have any impact on Client's business
or that any subsequent financial improvement will result from
Consultant's efforts.
9. CLIENT'S REPRESENTATIONS - Client represents, warrants and
covenants to Consultant that each of the following are true and
complete as of the Effective Date:
A. Entity Existence. Client is a corporation or other legal
entity duly organized, validly existing, and in good standing
under the laws of the state of its formation, with full
authority to own, lease and operate property and carry on
business as it is now being conducted. Client is duly qualified
to do business in and is in good standing in every jurisdiction
where such qualification is necessary.
B. Client Authority for Agreement. Client has duly authorized
the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein. Client
has duly executed and delivered this Agreement; it constitutes
the valid and legally binding obligation of Client enforceable
according to its terms.
C. Nature of Representations. No representation or warranty
made by Client in this Agreement, nor any document or
information furnished or to be furnished by Client to the
Consultant in connection with this Agreement, contains or will
contain any untrue statement of material fact, or omits or will
omit to state any material fact necessary to make the statements
contained therein not misleading, or omits to state any material
fact relevant to the transactions contemplated by this Agreement.
D. Independent Legal/Financial Advice. Consultant is not a law
firm or an accounting firm. Consultant employs lawyers and
accountants to counsel Consultant on its Services. Client has
not nor will it rely on any legal or financial representation of
Consultant. Client has and will continue to seek independent
legal and financial advice regarding all material aspects of the
transactions contemplated by this Agreement, including the
review of all documents provided by Consultant to Client and all
Opportunities Consultant introduces to Client. Client recognizes
that the attorneys, accountants and other personnel employed by
Consultant represent solely the interests of Consultant, and
that no representation or warranty has been given to Client by
Consultant as to any legal, tax, accounting, financial or other
aspect of the transactions contemplated by this Agreement.
10. NON-CIRCUMVENTION - Client agrees not to enter into any
transaction involving an Opportunity or asset introduced to Client by
Consultant without compensating Consultant pursuant to this
Agreement. Client will not terminate this Agreement solely as a
means to avoid paying Consultant compensation earned or to be earned
under this Agreement. Client will not act in any other way to
circumvent paying Consultant.
11. CONSULTANT IS NOT A BROKER-DEALER - Consultant has fully
disclosed to Client that it is not a broker-dealer and does not have
or hold a license to act as such. None of the activities of
Consultant are intended to provide the services of a broker-dealer to
the Client, and Client has been informed that a broker-dealer will
need to be engaged to perform any such services. Client has full and
free discretion in the selection of a broker-dealer.
12. NONEXCLUSIVE SERVICES - Client acknowledge that Consultant is
currently providing services of the same or similar nature to other
parties. Client agrees that Consultant is not barred from rendering
services of the same or a similar nature to any other individual or
entity.
13. PLACE OF SERVICES. The Services provided by Consultant or
Consultant's Personnel hereunder will be performed at Consultant's
offices except as otherwise mutually agreed by Consultant and Client.
14. INDEPENDENT CONTRACTOR. Consultant, with Consultant's
Personnel, acts as an independent contractor in performing its duties
under this Agreement. Accordingly, Consultant will be responsible
for paying all federal, state, and local taxes on compensation paid
under this Agreement, including income and social security taxes,
unemployment insurance, any other taxes regarding Consultant's
Personnel, and any business license fees. This Agreement neither
expressly nor impliedly creates a relationship of principal-agent, or
employer-employee, between Client and Consultant's Personnel.
Neither Consultant nor Consultant's Personnel are authorized to enter
into any agreement on behalf of Client. Client expressly retains the
right to make all final decisions, in its sole discretion, with
respect to approving, or effecting a transaction with, any
Opportunity located by Consultant.
15. REJECTED ASSET OPPORTUNITY OR BUSINESS OPPORTUNITY. If Client
elects not to acquire, participate in, or invest in any Opportunity
located by Consultant during the Term of this Agreement,
notwithstanding the time and expense Client incurred reviewing such
Opportunity, such Opportunity shall revert back to and become
proprietary to Consultant. Consultant shall be entitled to acquire
such rejected Opportunity for its own account, or submit such
Opportunity elsewhere. In such event, Consultant shall be entitled
to all profits or fees resulting from Consultant's purchase, referral
or placement of any such rejected Opportunity, or Client's subsequent
purchase or financing with such Opportunity in circumvention of
Consultant.
16. NO AGENCY EXPRESS OR IMPLIED. This Agreement neither expressly
nor impliedly creates a relationship of principal and agent between
the Client and Consultant, or employee and employer as between
Consultant's Personnel and the Client.
17. TERMINATION. Either Client or Consultant may terminate this
Agreement prior to the expiration of the Primary Term or any
Extension Period by signed written notice. Such notice is not
effective unless given at least thirty (30) days before the proposed
termination date.
18. INDEMNIFICATION. Subject to the provisions herein, the 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 the other party's breach of any representation,
warranty, covenant, condition, or agreement contained in this
Agreement.
19. REMEDIES. Consultant and the 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. Amendment. This Agreement may be amended or modified at
any time or in any manner, but only by an instrument in writing
executed by the parties hereto.
B. Entire Agreement. This Agreement contains the entire
agreement between Consultant and Client relating to the subjects
addressed in this Agreement. This Agreement supersedes any and
all prior agreements, arrangements, or understandings (written
or oral) between the parties. No 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.
C. 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.
D. Headings and Captions. 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.
E. Governing Law. The validity, interpretation, and
performance of this Agreement shall be governed by the laws of
the State of Utah, regardless of its law on conflict of laws.
Any dispute arising out of this Agreement shall be brought in a
court of competent jurisdiction in Salt Lake County, Utah. The
parties expressly consent to the personal jurisdiction of the
above-identified courts. The parties agree to exclude and waive
any statute, law or treaty which allows or requires any dispute
to be decided in another forum or by rules of decision other
than as provided in this Agreement.
F. Binding Effect. This Agreement is binding on the parties
hereto and inures to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
G. 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 reasonable
attorney's fees, court costs, and other costs incurred in
proceeding with the action from the other party. Should either
party be represented by in-house counsel, all parties agree that
such party may recover attorney's fees incurred by that in-house
counsel in an amount equal to that attorney's normal fees for
similar matters, or, should that attorney not normally charge a
fee, by the prevailing rate charged by attorneys with similar
background in that legal community.
H. Severability. 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 un-enforceability shall not
affect any other provisions of this Agreement. Instead, this
Agreement shall be construed as if it never contained any such
invalid, illegal or unenforceable provisions.
I. Mutual Cooperation The parties shall cooperate with each
other to achieve the purpose of this Agreement, and shall
execute such other documents and take such other actions as may
be necessary or convenient to effect the transactions described
herein.
J. 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.
Such executed copy may be delivered by facsimile or similar
instantaneous electronic transmission. Such execution and
delivery shall be considered valid for all purposes.
K. 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.
L. 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 hereto affixed their signatures.
Client
xXxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Consultant
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, in his individual capacity
