EX-10.9
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective the 1st
day of November, 2001, between Xxxxxxx X. Xxxxxxxxx, P.O. Box 127,
Town Centre, Providenciales, Turks & Caicos Islands, B.W.I., 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 perform for the Client all services and consulting
related to the Client obtaining a contract, with the Republican
and/or Democratic party and/or individual candidates seeking
political office, for the exclusive use by party or candidate of
the "pay-per-call" telephone numbers 1 900 "REPUBLICAN" and 1 900
"DEMOCRAT". At the request of the Consultant, the Client will
make itself available to meet with representatives of the
Republican National Committee ("RNC") and the Democratic National
Committee ("DNC") and to discuss with the representatives of the
RNC and DNC any possible contractual arrangement between the
Client and the RNC and DNC. The Client acknowledges that there
is no assurance or guaranty that the Client will be able to enter
into any contractual relationship with the RNC and/or the DNC as
a result of the consulting services to be provided to the
Consultant hereunder, nor has the Consultant made any
representations or warranty to the Client regarding any such
contractual arrangement. Consultant agrees to perform for the
Client all services and consulting related to Political fund
raising and introduction to political candidates. 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, Five Million Three
Hundred Thousand (5,300,000) shares of the Clients common
stock in the following manner: (1) Five Million Three
Hundred Thousand (5,300,000) 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 November 1, 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 Nevada, 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 Nevada. 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
Name: Xxx Xxxxxx
Title: President
"Consultant"
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
