Exhibit 10.5
CONSULTING AGREEMENT WITH
XXXXX XXXXX
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CONSULTING AGREEMENT
THIS AGREEMENT is dated for reference and is made as of the 9th day of July
2002.
BETWEEN:
Xxxxx Xxxxx
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xx, 00000
Ph # 000 000 0000, Fax # 000 000 0000
(hereinafter called the " Consultant ")
OF THE FIRST PART
AND:
STRATEGIC INTERNET INVESTMENTS, INCORPORATED. /, an incorporated
company under the laws of the state of Delaware, USA. , having an
office at # 450 - 650 W. Georgia Street, Vancouver, BC V6B 4N8,
Ph # 000 000 0000, Fax # 000 000 0000
(hereinafter called the "Company")
OF THE SECOND PART
WHEREAS:
A. It is understood that the Company is currently trading on an
over-the-counter market NASD OTC Bulletin Board under the symbol (SIII); and
B. The Company desires to create an equity-based remuneration package to be
vested in favor of the Consultant as described herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
premises and covenants contained in this Agreement, the parties hereto covenant
and agree as follows:
1. PROVISION OF SERVICES
1.1 Subject to the terms of this Agreement, the Consultant shall provide to the
Company the services listed in Schedule "A" hereto and all such other services
as are necessarily incidental thereto that may be required by the Company (the
"Services").
1.2 The Consultant shall use its best efforts to further the interests of the
Company in providing the Services.
Initial: CW/RS/AS
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2. CHANGES IN SERVICE
2.1 The Company and the Consultant may mutually agree to add or delete services
as set out in Schedule "A".
3. REMUNERATION OF CONSULTANT
3.1 The Consultant will perform the Services described Schedule "A" and the
Company shall pay the Consultant the sum of $this figure to be inserted upon
signing as it relates to the stock trading price_________per month payable
monthly on the last day of each month during the term of this Agreement, as a
fee for the Consultant to be available to perform the Services as required by
this Agreement and in accordance with certain minimum performance milestones, as
defined below.
3.2 Payment in Stock. In lieu of cash compensation for Services provided by the
Consultant pursuant to paragraph 3.1 for the six month term of this Agreement,
the Company shall pay or provide, as applicable, to the Consultant a deferred
stock award (the "Award"), to be awarded as of the effective date of this
Agreement, with respect to 250,000 shares (the "Shares") of the common stock of
the Company (the initial 125,000 shares shall be forwarded to Consultant upon
the signing of this Agreement, and the remaining shares shall be placed in
escrow with a mutually agreed Attorney upon the signing of this Agreement),
subject to the following terms and conditions:
(a) The Award shall vest and the Shares shall be issued and distributed to
Consultant in accordance with the following schedule:
NUMBER OF SHARES VESTING/DISTRIBUTION DATE
1. 125,000 Immediately upon signing agreement
2. 25,000 One month after agreement date
3. 25,000 Two months after agreement date
4. 25,000 Three months after agreement date
5. 25,000 Four months after agreement date
6. 25,000 Five months after agreement date
provided that,
(b) with respect to Shares scheduled to vest in each of the six months of
the term of this Agreement, the Consultant has provided Services as
reasonably requested in accordance with this Agreement.
(c) The issue price for each traunch of shares described in paragraph
3.2(a) will be deemed to be $0.____ per share (the market trading
price as of the date of the agreement).
(d) Any unvested portion of the Award shall be forfeited to the Company
upon the termination of this Agreement.
(e) The Consultant will not have the right to receive a certificate for
the Shares or vote the Shares or receive dividends on the Shares prior
to the date such Shares vest pursuant to the terms of this paragraph
3.2.
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(f) Until the Shares vest pursuant to the terms of this paragraph 3.2(a),
such Shares are non-transferable and may not be assigned, pledged or
hypothecated and shall not be subject to execution, attachment or
similar process. Any attempt to violate these restrictions will result
in the immediate forfeiture of the Award and the Shares.
(g) Upon the vesting of the Shares pursuant to the terms of this paragraph
3.2(a), Escrow Agent, shall forward such Shares to the Consultant.
(h) The terms and provisions of this Award (including, without limitation,
the terms and provisions relating to the number and class of Shares
subject to this Award) may be adjusted by the Company and the
Consultant (to reasonably reflect compensation at the same level as
contained in this Agreement) in the event of any recapitalization,
merger, consolidation, reorganization, stock dividend, stock split,
split-up or other change in corporate structure affecting the common
stock of the Company.
3.3 Subject to such restrictions and requirements as the Company may impose from
time to time, the Company shall reimburse the Consultant for out-of-pocket
expenses incurred in performance of the services upon receipt of such evidence
of those expenses as the Company may reasonably require. Any expense item of a
monetary value in excess of $500.00 shall be pre-approved by the Company.
4. CONSULTANT NOT AGENT OR EMPLOYEE
4.1 Neither the Consultant nor its Key Employee shall be the employee or agent
of the Company and accordingly, neither shall purport to enter into any a
contract or subcontract on behalf of the Company or otherwise purport to act on
its behalf. Nothing in this Agreement shall be deemed to require the Consultant
to provide its services exclusively to the Company and the Consultant hereby
acknowledges that the Company shall not be required to make any remittances or
payments required of employers by statute on the Consultant's or the Key
Employee's behalf and the Consultant or any of its agents or employees shall not
be entitled to the fringe benefits provided by the Company to its employees.
4.2 The Company acknowledges that since the Consultant is an independent
contractor and not an employee of the Company, the Consultant shall have
direction and control of the manner, methods, techniques and procedures used by
its agents or employees to perform the Services.
5. FACILITIES
5.1 The Consultant shall provide its own facilities (including office space,
faxing, long distance phone calls, mailing, typing, document reproduction, and
other clerical assistance) that may be required by the Consultant to perform the
Services. The Consultant is entitled to invoice as an expense the costs
identified in this section 5.1, excluding rental for office space, in accordance
with section 3.3 of this agreement.
Initial: CW/RS/AS
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6. BOOKS AND RECORDS
6.1 The Consultant shall keep proper accounts and records of all expenditures
made by it in connection with the Services, and of the time expended by it or
any of its agents or servants in performing the Services and all invoices,
receipts and vouchers relating thereto.
7. COMPANY'S OBLIGATIONS
7.1 The Company shall make available to the Consultant such information and data
and shall permit the Consultant, its agents and employees to have access to such
documents or premises as are reasonably necessary to enable it to perform the
Services.
7.2 Filing and Effectiveness of Registration Statement. The Company shall
prepare and file with the Securities and Exchange Commission (the "SEC") as soon
as practicable, a Registration Statement relating to the offer and sale of the
Shares and shall use all commercially reasonable efforts to cause the SEC to
declare such Registration Statement effective under the Securities Act as
promptly as practicable thereafter.
7.3
8. CONFIDENTIALITY
8.1 The Consultant shall not disclose any information, documents, or processes
to which the Consultant may have access by virtue of its performance of the
Services to any person not expressly authorized by the Company for that purpose.
9. DUTIES OF CONSULTANT
9.1 During the term of this Agreement, the Consultant shall devote such of its
time, attention and abilities to the business of the Company as is reasonably
necessary for the proper exercise of its duties pursuant to this Agreement.
Nothing contained herein shall be deemed to require the Consultant to devote its
exclusive time, attention and ability to the business of the Company.
9.2 During the term of this Agreement, the Consultant shall ensure that its Key
Employee will:
(a) at all times except when disabled by sickness or incapacity,
faithfully and diligently perform his duties and use his best efforts
to promote and advance the business of the Company;
(b) devote such of his time, labor and attention to the business of the
Company as is necessary for the proper exercise of the Consultant's
duties hereunder; and
(c) refrain from acting in any manner contrary to the interests of the
Company or contrary to the duties of the Consultant as contemplated
herein.
9.3 Without limiting the generality of the foregoing, the Consultant shall not
during the term of this Agreement:
(a) act in any manner contrary to the terms of this Agreement, or the best
interests of the Company; or
Initial: CW/RS/AS
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(b) take advantage for personal gain, either directly or indirectly, of a
business opportunity, which opportunity arose because of the
Consultant's relationship with the Company unless such opportunity is
first presented to the Company and the Company expressly declines to
take advantage of or pursue such opportunity and agrees in writing
that the Consultant may take advantage thereof.
10. LIABILITY OF CONSULTANT
10.1 The Consultant shall indemnify and save the Company harmless from and
against all costs, expenses, losses, damages and obligations it may suffer or
incur as the result of the breach of any covenant or warranty made by the
Consultant in this Agreement.
11. TERMINATION
11.1 The term of this Agreement shall be for six months and shall commence upon
the effective date of this agreement and unless terminated earlier pursuant to
the provisions hereof, or unless renewed in writing by the parties shall expire
at the end of the six month term of this agreement
11.2 This Agreement may be be terminated prior to the completion of the Services
as follows:
(a) by either party upon 30 days' prior written notice; or
(b) immediately upon the Company giving written notice to the Consultant
of the occurrence of an Event of Default as defined in clause 11.4.
If either party fails to give any such notice, this Agreement shall
continue in full force and effect.
11.3 Upon the termination of this Agreement, the Company shall pay to the
Consultant all amounts accruing hereunder up to and including the effective date
of termination.
11.4 An Event of Default shall be deemed to occur if:
(a) the Consultant is in breach of any covenant, obligation or warranty
hereunder and such breach continues for a period of twenty (20) days
after written notice thereof has been given to the Consultant; or
(b) the Consultant becomes insolvent or unable to discharge its
liabilities generally as they become due, makes an assignment for the
benefit of its creditors, or is made subject to a petition or other
proceedings in bankruptcy.
12.1 The Consultant shall not subcontract to any person, any right, duty or
obligation hereunder without the prior written consent of the Company. The
Consultant shall be entitled to assign this Agreement to incorporated company of
his control without the prior written consent of the Company.
Initial: CW/RS/AS
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13 PERFORMANCE
13.1 Within six weeks of signing this agreement the Consultant will have
completed the preparation of a business plan for the Company. Such business plan
shall be in a form and quality to be used by the Company for presentation to
potential funders and potential strategic partners.
13.2 Within six weeks of signing this agreement the Consultant will have
prepared a presentation package to be used by the company in its promotion and
capital raising efforts.
13.3 Within three months of signing this agreement the Consultant will have
designed and produced corporate image presentation material that will assist the
Company in developing its Corporate image, advertising and the marketing of its
business.
13.4 Within five months of signing this agreement the Consultant will have
prepared a critical review of all aspects of the Company's business making
recommendations to the Company regarding ways to improve the Companies internal
operations as well as identifying and targeting Corporate goals. The review
should be constructive in nature as well as attempt to identify deficiencies
within the Company.
14. CO-OPERATION WITH OTHER PARTIES
14.1 The Consultant shall co-operate with all other parties engaged or employed
by the Company from time to time and shall coordinate its activities with the
activities of such parties as and when requested by the Company.
15. NOTICE
15.1 All notices, demands and payments required or permitted to be given
hereunder shall be in writing and may be delivered personally, or sent by
telegram or telex or other means of electronic communication providing a printed
copy ("Electronic Communication") or may be forwarded by first class prepaid
registered mail to the addresses set forth below. Any notice delivered or sent
by Electronic Communication deemed to have been given and received at the time
of delivery. Any notice mailed as aforesaid shall be deemed to have been given
and received on expiration of 72 hours after it is posted, addressed as above.
Or such other address or addresses as the parties may from time to time give
notice of in writing; provided that if there shall be between the time of
mailing and the actual receipt of the notice a mail strike, slow down or other
labor dispute which may affect the delivery of such notice by the mails, then
such notice shall be effective only if actually delivered.
16. ENTIRE AGREEMENT
16.1 The provisions herein contained constitute the entire agreement between the
parties and supersede all previous communications, representations and
agreements, whether oral or written, between the parties with respect to the
subject matter hereof.
17. FURTHER ASSURANCES
17.1 Each of the parties shall execute such other documents and instruments and
shall do such other acts as may be necessary to implement and carry out the
intent of this Agreement.
18. CURRENCY
All monies which are referred to in this Agreement are expressed in lawful
money of United States of America.
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19. TIME OF ESSENCE
19.1 Time is of the essence of this Agreement.
20. WAIVER OF BREACH
20.1 The waiver by either the Company or the Consultant of a breach of any
provisions of this Agreement by the other party to this Agreement shall not
operate or be construed as a waiver of any subsequent breach by that party.
21. REGULATORY APPROVAL
21.1 This Agreement is subject to the approval of all regulatory authorities, as
may have jurisdiction (the "Regulatory Authorities"). If Regulatory Authorities
have issues with this Agreement, the Company will use its best efforts to
accommodate the Consultant and meet the requirements of the Regulatory
Authorities.
22. ATTORNEY FEES
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including reasonable attorneys fees,
expenses and court costs through trial, appeal and to final disposition.
23. AMENDMENTS
This Agreement may be modified or amended provided such modifications or
amendments are mutually agreed upon by and between THE PARTIES hereto and that
said modifications or amendments are made only by an instrument in writing
signed by THE PARTIES.
24. NON-WAIVER
The failure of either party, at any time, to require any such performance
by any other party shall not be construed as a waiver of such right to require
such performance, and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require a full performance hereunder.
25. CONSTRUCTION OF AGREEMENT
Each party and its counsel have participated fully in the review and
revision of this Agreement. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in the
interpretation of this Agreement.
26. APPLICABLE LAW
THIS AGREEMENT IS EXECUTED PURSUANT TO AND SHALL BE INTERPRETED AND
GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF TEXAS FOR WHICH THE COURTS
IN DALLAS COUNTY, TEXAS SHALL HAVE JURISDICTION WITHOUT GIVING EFFECT TO THE
CHOICE OR LAWS OR CONFLICT OF LAWS RULES THEREOF OR OF ANY STATE.
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27. COUNTERPARTS
This Agreement may be executed in a number of identical counterparts. Each
such counterpart is deemed an original for all purposes and all such
counterparts shall, collectively, constitute one agreement, but, in making proof
of this Agreement, it shall not be necessary to produce or account for more than
one counterpart.
28. FACSIMILE
A facsimile copy of this Agreement is acceptable.
29. ACCEPTANCE OF AGREEMENT.
Unless both parties have signed this Agreement within ten (10) business
days of the date listed above, this Agreement shall be deemed automatically
withdrawn and terminated.
IN WITNESS WHEREOF the parties have affixed their common seal hereto in the
presence of their officers duly authorized for that purpose.
On behalf and for,
Consultant
/s/Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx
On behalf and for,
Company
STRATEGIC INTERNET INVESTMENT INCORPORATED,
A Delaware corporation
By: /s/Xxxxx Xxxxx
Xxxxx Xxxxx, CEO
/s/Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
Initial: CW/RS/AS
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SCHEDULE "A" TO THE CONSULTING AGREEMENT DATED for reference and is made as of
the 9th day of July 2002.
SERVICES AND DUTIES
The Consultant shall report to the President of the Company. The duties shall be
assigned in the due course of doing business pertaining to the following
MONTHLY FEES AS PER SECTION 3.1,
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The following services will be preformed by the Consultant and the Consultant's
compensation for these services is recognized in the monthly fee described in
section 3.1 of the Agreement,
o identifying and negotiating joint ventures;
o business and management consulting.
o strategic planning;
o business plan preparation,/modifications
o bank and venture capital packaging
o developing corporate image material for advertising and marketing
Should it be necessary, and only if pre-approved by the Company, the Consultant
may outsource the services identified above in the Monthly Retainer and invoice
the Company the Consultants cost of such outsourced services.
Hourly rate categories:
The following services when preformed by the Consultant's personnel will be
invoiced as an expense to the Company at the rate identified herein, as per
sections 3.3 and 5.1 of the Agreement,
o private and public company process documentation; 50.00 /HOUR
o Secretary services, (word processing, report compilation,
document reproduction etc) 50.00 /HOUR
Initial: CW/RS/AS
