Exhibit 10.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into
this 20th day of January, 2004, by and between WNCR Management, Ltd., located at
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx (hereinafter referred to as the
"Consultant") and Direct Response Financial Services, Inc., a Colorado
corporation (hereinafter referred to as the "Company").
RECITALS
WHEREAS, Company acknowledges that Consultant has experience, knowledge
and contacts that are valuable to Company, and;
WHEREAS, Company desires to obtain the services of Consultant, and
Consultant desires to be hired by Company on the following terms and conditions.
NOW THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows.
1. CONSULTING SERVICES. The Company hereby retains the Consultant as an
independent financial Consultant to the Company and the Consultant hereby
accepts and agrees to such retention. The services provided by Consultant shall
consist of advice on the expansion of business in Canada, international business
transactions, consultation regarding referrals to the Company regarding
electronic commerce, and assisting in bringing Salem Communications to Direct
Card Services as a stored-value card account (hereinafter the "Consulting
Services").
2. TIME, MANNER AND PLACE PERFORMANCE. The Consultant shall provide
services similar to those provided to other Companies that may include public
trading companies. The Company agrees that the Consultant does not and shall not
be required to devote its full time and efforts to the Company. The Consultant
shall devote such time to the Company as is reasonable and necessary to provide
the Consulting Services to the Company. The Consultant shall be available for
advice and counsel to the officers and directors of the Company at such
reasonable and convenient times and places as may mutually be agreed upon.
3. TERM OF THE AGREEMENT. The Term of this Agreement shall be for a
total of two (2) years, commencing on January 20, 2004, and ending January 20,
2006 (the "Term") subject however, to prior termination as provided for in
Section 11 of this Agreement.
4. COMPENSATION. In consideration of the Consulting Services to be
provided to the Company by the Consultant, Company hereby agrees to compensate
Consultant as follows: Company agrees to pay the Consultant a fee equal to
500,000 shares of Rule 144 restricted common stock of the Company. The shares
shall be deemed fully earned upon receipt by the Consultant, provided that the
Consultant performs the Consulting Services described hereinabove. All shares
issued shall be issued free and clear of any liens and encumbrances.
5. SALE OF SHARES RECEIVED. It is the Consultant's intention to sell
the shares identified in Section 4 hereinabove during the term of this Agreement
or shortly thereafter pursuant to Rule 144. The Company agrees that the
Consultant may sell the shares at such times and in such manner as may be
determined in the sole discretion of the Consultant. The Company understands
that any sales of the shares by the Consultant may have effect of decreasing the
trading price of the Company's stock price, particularly if the Company's stock
is thinly traded. The Consultant will use reasonable efforts to make such sales
as such times and in such a manner so as to minimize any adverse effect to the
Company from sales of the shares.
6. DISCLOSURE OF INFORMATION. The Consultant recognizes and
acknowledges that it has and will have access to certain confidential
information of the Company and its affiliates that are valuable, special and
unique assets and property of the Company and such affiliates ("Confidential
Information"). The Consultant will not, during and after the term of this
Agreement, disclose without the prior written consent or authorization of the
Company, any Confidential Information to any person, except authorized
representatives of the Consultant or its affiliates, for any reason or purpose
whatsoever. In this regard, the Company agrees that such authorization or
consent to disclose may be conditioned upon the disclosure being made pursuant
to a secrecy agreement, protective order, provision of statue, rule, regulation
or procedure under which the confidentiality of the information is maintained in
the hands of the person to whom the information is to be disclosed or in
compliance with the terms of a judicial order or administrative process. Any
information which has been disclosed to the public by the Company or upon the
authorization of the Company shall not be considered Confidential Information.
7. NATURE OF RELATIONSHIP. Nothing in this Agreement shall render any
party a general partner of the other. Except as set forth in this Agreement
neither party is nor shall be a general agent for the other and neither party is
given authority to act on behalf of the other. The Consultant is retained by the
Company in an independent capacity and except as set forth in this Agreement,
Consultant shall not enter into any agreement or incur any obligation on behalf
of the Company.
8. CONFLICT OF INTEREST. This Agreement is non-exclusive. The
Consultant shall be free to perform services for other companies and persons.
Consultant will use its best efforts to avoid conflicts of interests. Company
agrees that it shall not be a conflict of interest that Consultant devotes time
and resources to companies and persons other than Company.
In the event that the Consultant believes a conflict of interest arises
which may affect the performance of the Consulting Services for the Company,
Consultant shall promptly notify the Company of such conflict. Upon receiving
such notice, the Company may terminate this Agreement pursuant to Section 11.
Failure to terminate this Agreement within thirty (30) days of notification of
any conflict of interest shall constitute the Company ongoing consent to the
Consultant continued activities, which would be in conflict with the Company.
9. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS AND LIMITATION OF
LIABILITY.
A. The Company agrees to indemnify and hold harmless the Consultant
against any losses, claims, damages, liabilities and or expenses
including any legal or other expenses reasonably incurred in
investigating or defending any action or claim in respect to which the
Consultant may become subject under the Securities Act of 1934 as
amended, because of actions of the Company or its agent's, Company's
material publicly available to the Consultant, or materials provided to
Consultant by Company for use by Consultant in its performance under
this Agreement.
B. The Consultant agrees to indemnify and hold the Company and each
officer, director and controlling person of the Company against any
losses, claims, damages, liabilities and expenses including any legal
or other expenses reasonability incurred in investigating or defending
any action or claim in respect thereof to which the Company of such
officer, director or controlling person may become subject under the
Securities Act of 1934 as amended, solely because of actions of the
Consultant or his agent(s).
10. TERMINATION. Notwithstanding Section 3 of this Agreement, this
Agreement may be terminated;
A. By the Company for any reason upon thirty (30) days prior written
notice to Consultant. The Company will issue all shares not issued that reflects
the fee; or,
B. By Consultant upon thirty (30) days prior written notice to the
Company in the event the Company requests Consultant to perform acts or services
in violation of any law, rule, regulation, policy or order of any Federal or
State regulatory agency or is engaging in conduct in violations under the same
rules.
11. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered via facsimile,
registered or certified mail, return receipt requested, to the address set forth
below.
IF TO CONSULTANT:
XXXXX 000 -0000 XXXXXXX XXXX
XXXXXXXXX XX X0X 0X0
FAX-1-208-275-1215
IF TO COMPANY:
C/O CATANESE & XXXXX, A LAW CORP.
00000 X. XXXXXX XXXX, XXXXX 000
XXXXXXXX XXXXXXX, XX 00000
12. APPLICABLE LAW. This Agreement shall be interpreted and construed
in accordance with and pursuant to the laws of the Province of British Columbia,
Canada.
13. ARBITRATION. Any dispute, difference or question which may rise at
any time hereinafter between the Shareholders touching on the true construction
of this Agreement and the respective rights and obligations of each party hereto
to the other shall be referred to and settled by binding arbitration under the
Commercial Arbitration Act of British Columbia. No arbitration shall be
commenced until the aggrieved party shall send to the other party a written
notice describing the problem and stating a proposed solution ("Settlement
Notice"). For thirty (30) days after sending of the Settlement Notice , the
parties shall try to settle the dispute in good faith. During this thirty (30)
days settlement period, each party shall send to the other an additional written
notice with further proposal for resolving the dispute and responding in detail
to the last proposal of the other party. The contents of the Settlement Notice
and of all discussions and writings during the thirty (30) day settlement period
shall be without prejudice and shall be privileged as settlement discussion and
may not be used in any legal proceedings or arbitration. The place of
arbitration shall be Vancouver, British Columbia. One impartial arbitrator shall
be appointed under the Commercial Arbitration Act. Judgment on the Arbitral
award may be entered in any court in the Province of British Columbia or in any
court having jurisdiction. The parties hereby waive all defenses as to personal
jurisdiction, venue and sovereign immunity from attachment, exception and
jurisdiction in any proceeding to confirm or enforce the award. The Laws of the
Province of British Columbia shall govern all issues during the arbitration. The
decision of the Arbitrator shall be final and finding on the parties.
14. SEVERABILITY. The provisions contained herein are severable and in
the event any of them shall be held invalid, the Agreement shall be interpreted
as if such invalid provisions were not contained herein.
15. ENTIRE AGREEMENT. This entire Agreement constitutes and embodies
the entire understanding and agreement of the parties and supersedes and
replaces all prior understandings, agreements and negotiations of the parties.
This Agreement may not be modified, except in writing and signed by all parties
hereto.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall constitute and be deemed an original, but both of which taken
together shall constitute to one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement the day and the year first above written.
Consultant
WNCR Management, Ltd.
Dated: _______________ By: ______________________________
Authorized Representative
Direct Response Financial Services, Inc.
Dated: _______________ By: ______________________________
Xxx Xxxxx, CEO/President
