CONSULTING AGREEMENT
Exhibit
10.9
This
Consulting Agreement (“Agreement”) is made as of this 27th day of
June, 2008 by and between Xxxxxxx X. Xxx (“Client”), and Capital Once Resource
Co., Ltd., a Brunei company (“Consultant”). Client and Consultant may
collectively be referred to as the “Parties”.
W
I T N E S S E T H:
WHEREAS,
Client desires to engage the services of Consultant to provide Client with the
services as more fully set forth in this Agreement; and
WHEREAS,
Consultant is desirous of performing such services on behalf of
Client.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the parties hereto agree as follows:
1. Consulting
Services. Upon the terms and subject to the conditions
contained in this Agreement, Consultant hereby agrees that it shall, during the
term of this Agreement, undertake the performance of the following services (the
“Services”):
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a.
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Familiarize
itself, to the extent appropriate and feasible, with the business,
operations, properties, financial condition, management and prospects of
Xxx Distributing, Inc. (“Xxx
Distributing”);
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b.
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Identify,
evaluate, structure and provide advice in connection with potential
mergers and acquisitions, divestitures, spin-offs, joint ventures and
other corporate transactions and in particular the possible acquisition of
Armco & Metawise (H.K.) Limited, a Hong Kong company (“Armco”) by Xxx
Distributing (the “Armco Acquisition”);
and
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c.
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Provide
such other services upon which the Parties may mutually
agree.
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2. Term. This Agreement
shall terminate upon the earlier of the closing of the Armco Acquisition or 60
days after the date hereof.
3. Consulting Fees.
Client shall pay Consultant for providing the Services by transferring to
Consultant 496,000 shares of Xxx Distributing’s Common Stock, $0.001 par value
(the “Shares”) upon the signing of this Agreement by the Parties (the
“Consulting Fees”). The Consulting Fees shall be deemed fully earned
by Consultant upon the closing of the Armco Acquisition.
4. Warranties. Consultant
warrants that the Services to be provided under this Agreement shall be
performed by qualified personnel in a professional manner employing reasonable
commercial efforts. This warranty shall be valid for a period of
thirty (30) days from the performance of the Services. Except as
specifically provided in this Section 4, Consultant disclaims any and all other
warranties with respect to the services provided hereunder, including without
limitation any implied warranty of merchantability or fitness for a particular
purpose. Consultant does not warrant the results of any services. In addition,
Client acknowledges and agrees that Consultant is not engaged in the practice of
law or the provision of legal services, and that Client alone is completely and
independently responsible for compliance with all state, federal and
international laws applicable to Client and the operation of its
business. Consultant’s entire liability to Client (or any other
person or entity) for any loss or damages resulting from any breach of this
Agreement, claims, demands or actions arising out of or relating to the
Services, whether in contract, tort (including negligence) or otherwise, shall
not exceed the sum of $5,000. In no event will Consultant or its
affiliates be liable for any damages caused by the Client's action or inaction,
or for any indirect, incidental, consequential, special, punitive or exemplary
damages or lost profits, including, but not limited to, damages for loss of
business profits, business interruption, loss of business information, data,
goodwill or other pecuniary loss arising from Consultant’s failure to provide
the Services even if Consultant has been advised of the possibility of such
damages.
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5. Indemnification. Client
agrees to indemnify and hold the Consultant and its subsidiaries and their
respective officers, directors, employees and agents and (collectively, the
“Consultant Indemnitees”) harmless from all Consultant Indemnified
Liabilities. For this purpose, “Consultant Indemnified Liabilities”
shall mean all suits, proceedings, claims, expenses, losses, costs, liabilities,
judgments, deficiencies, assessments, actions, investigations, penalties, fines,
settlements, interest and damages (including reasonable attorneys’ fees and
expenses), whether suit is instituted or not and, if instituted, whether at any
trial or appellate level, and whether raised by the parties hereto or a third
party, incurred or suffered by the Consultant Indemnitees or any of them arising
from, in connection with or as a result of Consultant’s performance of the
Services set forth in this Agreement.
6. Termination. Either
Party may terminate this Agreement upon thirty (30) days prior written notice to
the other Party, but such termination shall not affect the Consulting Fees paid
by Client to Consultant pursuant to Section 3 of this Agreement. All
Consulting Fees provided under this Agreement are deemed fully earned by
Consultant upon the earlier of: (a) the date provided for elsewhere in this
Agreement; or (b) the date of termination. In the event of a
termination of this Agreement, Client shall not be entitled to any refund of any
Consulting Fees paid to Consultant under this Agreement. From and after
termination of this Agreement, the Parties shall continue to be bound by such
provisions of this Agreement as by their nature survive such events, including,
without limitation, Sections 5 and 11.
7. Assignment and
Subcontractors. This Agreement shall be assignable by Consultant. Client
acknowledges that from time to time, Consultant may enlist a subcontractor to
perform some of the Services provided to Customer. In the event services to be
performed as outlined in this Agreement are subcontracted to a third party, the
third party shall accept responsibility for the performance of such activities.
Consultant will cease to bear any responsibility related to the performance of
subcontracted services; however the Consultant will act as liaison between the
subcontractor and Client, to monitor the performance of services to be provided
by any third party.
8. Modifications. This
Agreement can only be modified by a written agreement duly signed by persons
authorized to sign agreements on behalf of Client and Consultant, and variance
from or addition to the terms and conditions of this Agreement or other written
notification will be of no effect. The failure of any Party to
enforce any right it is granted herein, or to require the performance by the
other Party hereto of any provision of this Agreement, or the waiver by any
Party of any breach of this Agreement, shall not prevent a subsequent exercise
or enforcement of such provisions or be deemed a waiver of any subsequent breach
of this Agreement.
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9. Entire
Understanding. This Agreement represents the entire
understanding and agreement between the Parties with respect to the subject
matter hereof, and merges all prior discussions between them and supersedes and
replaces any and every other agreement or understanding which may have existed
between the Parties to the extent that any such agreement or understanding
relates to providing services to Client. To the extent, if any, that the terms
and conditions of Client’s orders or other correspondence are inconsistent with
this Agreement, this Agreement shall control.
10. Force
Majeure. No delay, failure or default in performance of any
obligation by either Party, excepting all obligations to make payments
hereunder, shall constitute a breach of this Agreement to the extent caused by,
in whole or in part, the other Party (and within the other party’s reasonable
control) or an act of God, war, civil disturbance, terrorist act, court order,
labor dispute, or other cause beyond its reasonable control, and such
nonperformance will not be a default under this Agreement.
11. Laws, Severability, Venue,
Waivers. The validity of this Agreement and the rights,
obligations and relations of the Parties hereunder shall be construed and
determined under and in accordance with the laws of the State of Florida,
without regard to conflicts of law principles thereunder provided, however, that
if any provision of this Agreement is determined by a court of competent
jurisdiction to be in violation of any applicable law or otherwise invalid or
unenforceable, such provision shall to such extent as it shall be determined to
be illegal, invalid or unenforceable under such law be deemed null and void, but
this Agreement shall otherwise remain in full force. Suit to enforce
any provision of this Agreement, or any right, remedy or other matter arising
therefrom, will be brought exclusively in the state or federal courts located in
Broward County, Florida. Client agrees and consents to venue in
Broward County, Florida and to the in personam jurisdiction of these courts and
hereby irrevocably waives any right to a trial by jury.
12. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
13. Other Activities.
Nothing contained herein shall prevent Consultant from acquiring or
participating in a transaction of any kind with any other entity proposed by
Consultant to be acquired by Client. Such transaction may be acquired at a price
and upon terms and conditions more or less favorable than those offered to
Client.
14. Disclaimer.
Consultant acknowledges that it has and will during the term of this Agreement,
rely upon information provided by Client in connection with the performance of
the Services and in accepting the Client’s securities as full or partial payment
of the Consulting Fees under this Agreement.
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15. Notices. All notices
to be given hereunder shall be in writing, with fax notices being an acceptable
substitute for mail and/or and delivery to:
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Consultant:
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Client:
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Capital
Once Resource Co., Ltd.
000
Xxxxxxx Xxxxx
Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Fax:
(000) 000-0000
Attn.
General Counsel
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Xxxxxxx
X. Xxx
000
Xxxxx
Xxxxxxxxx,
Xxxxxxx 00000
Fax:
_______________________
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
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Client:
/s/ Xxxxxxx X.
Xxx
Xxxxxxx
X. Xxx
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Consultant:
Capital
Onc Resource Co., Ltd.
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
General Manager
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