EXHIBIT 10.24
CONSULTANCY AGREEMENT
This Consultancy Agreement ("Agreement") is made and entered into on the
1st day of October, 2001 by and between Xxxxxxxxxxxxx.xxx Corp (the "Company"),
a Texas corporation having offices at 0000 Xxxxx Xxxxxx Xxxxxx -X000, Xxxxxxxxx,
Xxxxxxxx 00000 XXX and Atlantis Investments Limited, a company incorporated
under the laws of Hong Kong and having its office at 13/F Silver Fortune Plaza,
One Wellington Street, Central Hong Kong (the "Consultant").
A. The Consultant is engaged in advising and arranging activities.
B. The Company is quoted on an international stock exchange and is seeking
to raise additional share capital through sales of shares for its own account to
either other institutional investors and/or high net worth individuals.
C. The Company has offered to the Consultant a consultancy agreement and
Consultant has accepted.
WHEREAS, the Company wishes to assure itself of consultancy services of the
Consultant for the period provided in this Agreement, and the Consultant is
willing to provide consultancy services to the Company under the terms and
conditions hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises and of the mutual
promises and covenants herein contained, the parties hereto agree as follows:
I. DEFINITIONS
"INDEPENDENT CONTRACTOR" means one who, in exercise of an independent
employment, contracts to perform certain services according to his own methods
and is subject to control only as to the results of the performance of the
services.
"INVESTOR(S)" means clients of the Consultant who are seeking to make
investments in the Company.
"PRIVATE PLACEMENT(S)" means an investment in the Company regardless of
structure of the transaction, i.e. convertible security, equity placement, etc.
"SECURITIES" means those securities acquired pursuant to a private placement
of securities through privately negotiated transactions with clients of the
Consultant.
II. ENGAGEMENT & TERM
A. The Company agrees to and hereby engage the Consultant to assist the
Company in raising share capital through the introduction of Investor(s), and
the Consultant agrees to and does hereby accept engagement by the Company, as
its advisor for the period commencing on the date hereof and ending on the
five-month anniversary date of this Agreement. The period during which
Consultant shall serve in such capacity shall be deemed the "Term" shall
hereinafter be referred to as such.
B. Engagement of the Consultant and Term. The Company hereby engages the
Consultant as a non-exclusive Consultant, and the Consultant agrees to and does
hereby accept engagement by the Company for the period commencing on the date
hereof and ending on the five-month anniversary date of this Agreement. The
period during which the Consultant shall serve in such capacity shall be deemed
the "Term" and shall hereinafter be referred to as such. The Company grants to
the Consultant an option to renew this Agreement for a further period yet to be
determined after the expiration of the Term, subject to negotiation of the terms
thereof.
C. Extended Term of Agreement and Termination. In the event that the
Consultant introduces a prospective purchaser to the Company and as a result
thereof a transaction involving Securities shall take place with said
prospective purchaser during the term of this Agreement or within a one-year
period thereafter, the Consultant shall be entitled to it's Consultant's fee in
relation to such transaction as provided above. Notwithstanding the foregoing
and the Term, this Agreement may be terminated by either Party upon thirty (30)
days written notice to the other party; provided, however, that the Company's
obligation to pay the Consultant the Consultancy fees referred to in the first
sentence of this section and Article IV shall survive any terms of this
agreement.
III. SERVICES
The Consultant shall render to the Company consultancy services described
below, with respect to which the Consultant shall apply its best efforts and
devote such time as shall be reasonably necessary to perform its duties
hereunder and advance the interests of the Company. The Consultant shall report
to the Chief Executive Officer of the Company and/or to such persons as the
Chief Executive Officer shall direct.
The services to be rendered by the Consultant shall consist of the
following:
Promoting the availability of the Securities to institutional investors
and/or high net worth individuals.
Identifying and soliciting prospective purchasers of the Securities.
Assisting and advising the Company in connection with the negotiation of the
terms and conditions of such transactions with Investor(s) and the evaluation of
the prospective purchasers.
IV. REMUNERATION
In consideration of the services provided for herein, the Consultant shall
receive an advisory fee to be negotiated and determined by the parties hereto on
case-by-case basis for each investment made by the Company or for each service
provided by the Consultant.
1. Fee Schedule. In consideration of the Consultant's services to the
Company hereunder, the Consultant shall receive a fee equal to 50,000 shares of
MKCT restricted stock for each $50,000, or part thereof, raised for the Company
by the Consultant. The fee shall be due on the date any such transaction is
consummated with a purchaser introduced to the Company by the Consultant. The
Consultant's fee shall be paid in shares of stock pursuant to SEC Rule 144, as
determined by the total performance on the five-month anniversary of this
agreement.
2. Performance: The Consultant has arranged for the sale of 8,066,667
shares of MKCT stock and raised $335,389.93, which entitles the Consultant to
receive 350,000 shares of MKCT restricted stock pursuant to Rule 144 in terms of
this agreement.
V. CONFIDENTIAL INFORMATION, PUBLIC DOMAIN, NO PUBLICITY
A. Confidentiality of Information. During the term of this agreement, each
party shall, except as may otherwise be required by law or the order of a court,
governmental agency of self-regulatory organization, keep secret and retain in
strictest confidence all confidential matters and trade secrets known to each of
them relating to the business and operations of the other party, including,
without limitation, client and prospective client information, pricing politics,
operational methods, marketing plans, and other business affairs relating to the
business and operations of either party learned heretofore or hereafter, and
shall not disclose them to anyone except upon the other party's prior written
consent. Each party shall take reasonable steps to ensure that all of its
personnel involved in the execution of this Agreement shall be bound and shall
respect this duty of confidentiality.
B. Public Domain. This duty of confidentiality shall not apply if either
party can reasonably demonstrate that such Confidential Information has entered
into the public domain, without any breach of any obligation of either party.
C. No Publicity. Except as otherwise may be permitted pursuant to this
Article V, each party shall treat all matters in connection with this agreement
as strictly confidential and shall not publish or cause to be published any
information regarding the other party without the prior written approval of the
other party.
D. "Confidential Information" means information disclosed by the Company to
Consultant, or developed or obtained by Consultant while Consultant is providing
consulting services hereunder, either before the date or during the term of this
Agreement, provided that such information is not generally known in the business
and industry in which the Company is or may subsequently become engaged,
relating to or concerning the business, projects, products, processes, formulas,
know-how, techniques, designs, methods or other intellectual property of the
Company, whether relating to research, development, manufacture, purchasing,
accounting, engineering, marketing, merchandising, selling, or otherwise.
Without limitation, Confidential Information shall include all know-how,
technical information, inventions, ideas, concepts processes and designs
relating to products and services of the Company, whether now existing or
hereafter developed, and whether owned or licensed by the Company and all
prices, customer names, customer lists, marketing and other relationships,
whether contractual or not, between the Company, its suppliers, customers,
distributors, employees, agents, consultants and independent contractors.
E. Consultant agrees that, during the term hereof and after termination of
this Agreement with the Company for so long as the Confidential Information
shall not be generally known or generally disclosed, Consultant shall not use
any Confidential Information, except on behalf of the Company during the term
hereof, or disclose any Confidential Information to any person, firm,
partnership, company, corporation or other entity, except as authorized by the
Board of Directors of the Company.
F. Information to be Held in Confidence. Each of the parties hereto agrees
to hold all confidential information supplied by it to the other in confidence
and not to disclose same to third parties except as necessary or desirable in
connection with negotiations or discussions for the evaluation and consummation
of any proposed transaction involving Securities, or as otherwise required by
lawyer court order.
VI. INDEPENDENT CONTRACTOR
Nothing contained in this Agreement shall be construed to constitute the
Consultant as an owner, affiliate, agent or employee of the Company. The
Company and the Consultant understand and agree that the Consultant shall at all
times be considered to be an Independent Contractor.
VII. NOTICES
Any notice to be given under the terms of this Agreement shall be in
writing and addressed to the parties hereto at their respective addresses set
for at the beginning of this Agreement. Such notice shall be deemed duly given
when (a) personally delivered, (b) five (5) business days after having been
properly addressed, enclosed in a properly sealed envelope or wrapper and sent
postage-paid by certified mail, return receipt requested, (c) transmitted by
telefax, immediately confirmed (that day) by telephone by the actual party to
whom the notice is sent and the original is sent by regular mail to such party
in a properly sealed and postage-paid envelope or wrapper addressed as required
herein, or (d) one (1) business day after being sent, at the expense of the
sender, by Federal Express , UPS Next Day Air , U.S. Express Mail or similar
overnight carrier.
VIII. GENERAL PROVISIONS
A. General. References herein to Clauses are to clauses in this Agreement
unless the context requires otherwise. Unless the context requires otherwise,
words importing the singular include the plural and vice versa and words
importing a gender include every gender.
B. Waiver. No Waiver of any provision of this Agreement in any instance, or
for any purpose, shall be deemed to be a waiver of the right of any party hereto
to enforce strict compliance with the provisions hereof in any subsequent
instance.
C. No Joint Venture. This is an agreement between separate legal entities
and neither is the agent or employee of the other for any purpose whatsoever.
The parties do not intend to create a partnership or joint venture between
themselves. Neither party shall have the right to bind the other to any
agreement with a third party or to incur any obligation or liability on behalf
of the other party.
D. Surviving Rights. The provisions of Article V hereof shall survive the
Termination of this Agreement.
E. Agreement to Perform Necessary Acts. Each party hereto shall perform any
further acts and execute and deliver documents or procure any court orders which
may reasonable be necessary to carry out the provisions of this Agreement.
F. Compliance With Applicable Law. Neither party to this Agreement shall
have any obligation to perform any of their respective duties or obligations
hereunder if such party has a reasonable basis to believe that to do so would
violate the laws, rules or regulations of any governmental entity, securities
exchange or board of trade that has jurisdiction over the parties to this
Agreement or the transactions contemplated by this agreement.
G. Force Majeure. In this Agreement, Force Majeure shall mean circumstances
beyond the control of the parties and which are unforeseeable at the time of
concluding this Agreement, uncontrollable and which temporarily make the further
performance of this Agreement or any material part thereof impossible. Neither
party shall be deemed to be in default of its obligations under this Agreement
while performance thereof is prevented by Force Majeure and the time limits laid
down shall accordingly be extended taking into consideration the duration of the
Force Majeure and its consequences and effects.
H. Modification and Amendment. No modification, variation, addition to or
amendment of this Agreement shall be of any force or effect unless in writing
and duly executes by or on behalf of all parties to this Agreement.
I. Waiver of Breach. The waiver by any party of any breach of any provision
of this Agreement will not operate or be construed as a waiver of any subsequent
breach of that same or any other provision.
J. Titles. The titles of the Clauses herein are for the convenience of
reference only and are not to be considered in construing this Agreement.
K. Dispute Resolution and Governing Law. This Agreement shall be governed
by and interpreted in accordance with the local laws of Hong Kong. Without
regards to conflict of laws principles and the parties hereby irrevocably submit
to non-exclusive jurisdiction of the courts of Hong Kong.
L. Severability. If any provision of this Agreement is deemed invalid or
unforeseeable by a court of law with Jurisdiction over the persons and subject
matter, that invalidity or unenforceability shall not affect any other provision
of this Agreement and the rest of the Agreement shall nevertheless remain in
full force and effect as though the invalid or unenforceable provision was not
contained in the original Agreement.
M. Assignment. Either party may assign its interest in this Agreement to
another party, which is wholly-owned and under the management of the assigning
party.
N. Entire Agreement. This Agreement contains the entire contract of the
parties with respect to the subject matter hereof and supersedes all agreements
and understandings between the parties concerning the subject matter hereof. It
may not be changed orally, but only by agreement in writing, signed by all
parties hereto. Neither party shall have any claim or right of action arising
form any undertaking, representation or warranty not included in this agreement.
O. Binding Effect. This Agreement shall injure to the benefit of, and is
binding upon, the parties hereto and their respective heirs, representatives,
successors and assigns.
P. Prior Involvement. In the event the Company has a current business
relationship with any prospective purchaser introduced to it by the Consultant,
it will immediately notify the Consultant of same and upon confirmation thereof
by the Consultant that the Company has proven the existence of this current
business relationship, the Company will be relieved of any liability to the
Consultant in connection with such prospective purchaser.
Q. Indemnity. The Company hereby agrees to indemnify the Consultant and hold
the Consultant harmless from and against any and all liabilities, expenses,
costs and damages (including the costs of defence and the costs of enforcing the
"Consultant s" rights hereunder), alleged against or incurred by the Consultant
arising out of or relating to this Agreement and/or the transactions
contemplated hereby, provided that the Consultant's conduct does not in any way
involve acts of gross negligence and that the Consultant has never acted in any
way that could be construed as intentional illegal conduct in the performance of
the Consultant's duties as contemplated by this Agreement. Specifically
introduction of prospective purchasers not subject to the conditions mentioned
in clause 23 shall be construed as intentional illegal conduct.
R. Non-circumvention. The Company hereby agrees that, for a period of five
years from the date hereof, it will not, directly or indirectly, circumvent or
enter into, or attempt to circumvent or enter into, any type of agreement or
understanding with any prospective purchaser, introduced to it by the Consultant
(or deal with any contact person at such prospective purchaser) directly or
indirectly introduced to it by the Company as contemplated by this Agreement,
without the express written consent of the Consultant.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
MARKET CENTRAL ATLANTIS INVESTMENTS LTD.
By: /s/Xxxx Xxxxxx By:/s/
Its: Chairman Its: Director
