Exhibit 10.5
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of November 15, 2003 (this " Agreement") by
and between SK Realty Ventures, Inc. a Nevada corporation having its principal
place of business at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000.
(the "Company"), and Xxxxxx Xxxxx an individual (the "Consultant").
WITNESSETH
WHEREAS, the company wishes to retain Consultant to provide the company
with certain consulting services and consultant is willing to provide such
consulting services, on the terms and conditions set forth herein.
NOW, THEREFORE , in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
Section 1. Retention of the Consultant . The Company hereby retains and
engages the consultant, and the consultant hereby accepts such engagement, in
each case subject to the terms and conditions of this agreement.
Section 2. Services.
(a) On the terms and subject to the conditions herein contained, the
company hereby engages Consultant as a consultant, and consultant hereby accepts
such engagement.
(b) With regard to operations, strategic planning and business
development, the consultant shall consult with the Company regarding:
(i) developing new sources of business;
(ii) identifying and analyzing possible strategic alliances;
(iii) evaluation and analysis of the Company's marketing plans and new
products and services;
(iv) review of the business plans for the Company, including the review of
budgets and projections;
(v) analysis of information on a periodic basis concerning the financial
performance of the company and the markets in which it operates;
(vi) identification of suitable merger and acquisition candidates; and
(vii) such other aspects of the business of the company as consultant and
the company may agree from time to time.
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(c) The Consultant will devote such amount of time and effort necessary to
accomplish the services required. However, there is no requirement that
Consultant devote a certain amount of time or effort hereunder.
(d) In connection with any proposal made by the Consultant pursuant to
this agreement, the Company and the Consultant acknowledge that the company
shall not be obligated to accept such proposal or further obligate itself
hereunder. Any arrangement or agreement between the Company and a third party
shall be evidenced by an agreement duly authorized and executed by the Company.
Section 3. Compensation. The Company agrees to pay to the Consultant stock
options pursuant to the Stock Option Grant The Company acknowledges that it does
not currently have the financially ability to pay for the Consultant's services
in cash. Therefore, in lieu of such cash payment and in consideration of the
services to be rendered by the Consultant, pursuant to this agreement, and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged by the Company, the Company, can currently with the
execution hereof, issue to the Consultant stock options in the amounts
enumerated in Stock Option Grant.
Section 4. Confidentiality; Non-Competition. The Consultant acknowledges
that in the course of his engagement, he will become familiar with trade secrets
and other confidential information (collectively, "Confidential Information")
concerning the Company. The Consultant agrees that he shall retain the
confidential information in strict confidence and not disclose to any third
party any or all of the confidential information without the express written
prior consent of the Company. Furthermore, the Consultant agrees that during the
term (as defined below) and for a period of one year thereafter neither he nor
any affiliate or family member shall directly or indirectly, for their account
or on behalf of any other party, whether as an employer, employee, Consultant,
manager, member, agent, broker, contractor, stock holder, director, officer,
investor, owner, lender, partner, joint venturer, franchiser, franchisee,
licensor, licensee, sails representative, distributor, or otherwise, or through
any business entity or vehicle whatsoever: (i) conduct, advise or render
services to any business activity in competition with the Company or (ii)
solicit hire or retain any employee or Consultant or its affiliate, or persuade
or entice any employee or Consultant of the Company to leave the employ of the
Company or its affiliates.
Section 5. Term. This Agreement shall be for a term of six months
commencing on the date hereof (the "Term"). This agreement maybe terminated by
either party only upon thirty days prior written notice.
Section 6. Representations and Warranties of the Consultant.
(a) The Consultant represents and warrants to the Company that he is not
acquiring the shares with a view to, or for resale in connection with, any
distribution in violation of the Securities Act.
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(b) The consultant represents and warrants to the Company that..
(i) he is a natural person;
(ii) he shall provide bonafide services to the Company pursuant to this
Agreement; and
(iii) the services to be provided pursuant to this Agreement are not in
connection with the offer or sale of securities.
Section 7. Indemnification.
The Company agrees to indemnify and hold harmless the Consultant and his
affiliates against any and all loses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements, (and all
actions, suits, proceedings, and investigations in respect thereof and any and
all legal or other costs, expenses and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise), including, without
limitation, the costs, expenses and disbursements, as and when incurred, of
investigating, preparing or defending any such action, proceeding or
investigation ( whether or not in connection with litigation to which the
Consultant is a party), directly or indirectly, caused by, relating to, based
upon, arising out of or in connection with information provided by the company
which contains a material misrepresentation or material omission in connection
with the provision of services by the Consultant under this agreement; provided,
however, such indemnity agreement shall not apply to any portion of any such
lose, claim, damage, obligation, penalty, judgment award, liability, cost,
expense or disbursement to the extent it is found by a court of competent
jurisdiction to have resulted from the gross negligence willful misconduct of
the Consultant the Company also agrees that the Consultant shall not have any
liability ( whether direct or indirect contract or tort or otherwise) to the
Company or to any person (including, without limitation, Company share holders)
claiming through the Company for or in connection with the engagement of the
Consultant, except to the extent that any such liability results from the
Consultant's gross negligence or willful misconduct. This indemnification shall
survive the termination of this agreement.
Each party entitled to indemnification under this agreement (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such indemnified party
has actual knowledge of any claim as to which indemnity maybe sought, and shall
permit the indemnifying party to a sure defense of any such claim or any
litigation resulting therefrom, provided that council for the indemnifying
party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the indemnified party (whose approval shall not
be unreasonably withheld), and the indemnified party may participate in such
defense at such party's expense, and provided that further the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this section 7. Each indemnified
party shall furnish such information regarding itself or the claim in question
as an indemnifying party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and any litigation
resulting therefrom.
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Section 8. Governing Law. This agreement shall be governed by, and
construed in accordance with the laws of the Sate of the New York without regard
to the conflict of law principles thereof.
Section 9. Entire Agreement; Amendments. This agreement contains the
entire agreement and understanding between the parties and supercedes an
preempts any prior understanding or agreements, whether written or oral. The
provisions of this agreement may be amended or waived only with the prior
written consent and the Consultant.
Section 10. Successors and Assigns; No Assignment. This agreement shall be
binding upon, inure to the benefit of, and shall be enforceable by the
Consultant and the Company and their respective successors and permitted
assigns. The Consultant acknowledges that the services to be rendered by his
under this agreement are unique and personal. Accordingly, the Consultant shall
not assign any of his rights or delegate any of his duties or obligations under
this agreement.
Section 11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented personally, one business day after the date sent if
sent by prepaid telegram, overnight xxxxxxx service, telex or facsimile
transmission or five business days if sent by registered or certified mail,
returned receipt requested, postage prepaid which shall be addressed to the
following addresses:
If to the Company:
SK Realty Ventures, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Consultant: Xxxxxx Xxxxx, 00 Xxxxxx Xxxx Xxxx Xxxxxxxxx, Xxx
Xxxxxx 00000. Phone:000-000-0000; Fax: 000-000-0000.
Section 12. Severability. If any provision of this agreement or the
application of any provision to any person or circumstances shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof
Section 13. Section and Other Headings. The section headings contained in
this agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this agreement.
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Section 14. Counterparts. This agreement may be executed in any number of
counterparts and by facsimile, each of which when so executed and delivered
shall be deemed to be an original and all of which together shall be deemed to
be one and the same agreement.
Section 15. Independent Contractor. The Consultant agrees and acknowledges
that he is solely responsible to pay all of his own taxes with respect to the
issuance of the shares to the Consultant hereunder. The Consultant shall not be
entitled to receive, and shall not receive any other benefits of employment from
the company, including, without limitation, disability insurance worker's
compensation or any other benefits incidental to any employer-employee
relationship; it being the intention and agreement of the parties hereto that
the Consultant's relationship with the Company is that of an independent
contractor. Furthermore, this agreement shall not be construed to create between
the Company and the Consultant the relationship of principal or agent,
joint-venturers, copartners or employer and employee, the existence of which is
hereby expressly denied by the Company and the Consultant. The Consultant shall
not be an agent of the Company for any purposes whatsoever and the Consultant
shall have any right or authority to bind the Company or create any obligations,
express or imply, on behalf of or in the name of the Company.
Section 16. No Conflicting Agreements. The Consultant represents that he
is not a party to any other agreement or arrangement which would conflict with
or interfere with the performance of his duties or obligations under this
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SK Realty Ventures, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Consultant
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