EXHIBIT 10.4
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CONSULTING AGREEMENT
This Consulting Agreement (this" Agreement") is made and entered into as of
July 15th, 2001, by and between EssTec Inc, Inc., a Nevada corporation
(hereinafter referred to as the "Company") and Xxxxxx Corporate Group Inc.,
consultants residing in the United Arab Emirate (hereinafter referred to as the
"Consultant").
RECITALS
WHEREAS, Consultant has certain experience and contacts pertaining to
marketing, strategic alliances, and other matters relating to the management and
growth of companies internationally and in the United Arab Emirate;
WHEREAS.1he Company wishes to engage the services of the Consultant as an
advisor to assist the company in analyzing its business development
opportunities, exploring strategic alliances and assisting in its organization
located in the United Arab Emirate; and,
WHEREAS, the Company has agreed to provide Consultant with options to
purchase common stock of Company according to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto hereby agree as follows:
1. CONSULTING SERVICES
Consultant shall act as an advisor in assisting Company in developing
business opportunities, marketing and exploration of strategic alliances and
business projects both on an international basis and in the United Arab Emirates
(the "Consulting Services"). Consultant hereby agrees to utilize its best
efforts in performing the Consulting Services.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect commencing upon the date
hereof and concluding at the close of business on the same date in twelve months
("termination date"). After the termination date, this Agreement shall
automatically renew on a month-to-month basis unless either party elects to
terminate that Agreement by giving notice in writing within 30 days of the
termination date. Either party hereto shall have the right to terminate this
Agreement without notice in the event of the death, bankruptcy, insolvency. Or
assignment. for the benefit of creditors of the other party. Consultant shall
have the light to terminate this Agreement if Company fails to comply with any
or the material terms of this Agreement, including without limitation its
responsibilities for fees as set forth in this Agreement, and such failure
continues un-remedied for a period of thirty (30) days after written notice to
the Company by Consultant The: Company shall have the right to terminate this
Agreement upon delivery to Consultant of notice setting forth with specific
facts comprising a material breach of this Agreement by Consultant. Consultant
shall have thirty (30) days to remedy such breach.
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3. TIME DEVOTED BY CONSULTANT
It is anticipated that the Consultant shall spend as much time as deemed
necessary by the Consultant in order to perform the obligations of Consultant
here under. The Company understands that this amount of time may vary and that
the Consultant may perform Consulting Services for other companies.
4. PLACE WHERE THE SERVICES WILL BE PERFORMED
The Consultant will perform most services in accordance with this Agreement
at Consultant's offices. In addition, the Consultant will perform services on
the telephone and at such other place(s) as necessary to perform these services
in accordance with this Agreement.
5. COMPENSATION TO CONSULTANT
a. Initial Services. In exchange for the Consulting Services provided by
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the Consultant to Company, Company shall pay Consultant One Hundred
Thousand dollars ( 100,000) at the end of initial one-hundred and
twenty (120) day period. The initial service fee of $ 100,000 is
personally guaranteed by Xxxxx X Xxxx.
b. Continuing Services. As part of the Consulting Services, Consultant
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will assist the Company in creating strategic alliances and business
development opportunities with the intent that these alliances and
opportunities shall either directly or indirectly create or generate
revenues for the Company, Further, Consultant shall Introduce
potential business opportunities and projects to the Company.
a. In exchange for the introduction of business opportunities and
projects that can be directly exploited by the Company,
Consultant shall be compensated by the initial services fee that
the Company shall pay.
b. Consultant shall receive additional compensation in the form of
seventy-five thousand (75,000) stock options exercisable at $3.50
upon delivery of a minimum of two hundred and fifty thousand
dollars ($250,000) in revenues generated for the Company through
the efforts of the consultant.
6. INDEPENDENT CONTRACTOR
Both Company and the Consultant agree that the Consultant will act as an
independent contractor in the performance of his duties under this Agreement,
Nothing contained in this Agreement shall construed to imply that the
Consultant, or any employee. agent or other authorized representative of
Consultant, is a partner, joint venturer, agent, officer or employee of Company,
7. CONFIDENTIAL INFORMATION
The Consultant and the Company acknowledge that each will have access to
proprietary information regarding the business operations of the other and agree
to keep all such information secret and confidential and not to use or disclose
any such information to any individual or organization without the nondisclosing
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parties prior written consent. It is hereby agreed that from time to time
Consultant and the Company may designate certain disclosed information as
confidential for purposes of this Agreement. Consultant hereby designates its
broker network and/or any retail brokerage operations identified by Consu1tant
to Company as Consultants confidential information. The Company hereby
designates it shareholder list as the Company's confidentia1 information.
8. INDEMNIFICATION
The Company hereby agrees to indemnify and hold Consultant harmless from
any and all liabilities incurred by Consultant under the Securities Act of 1933,
as amended (the "Act"), the various state securities acts, or otherwise, insofar
as such liabilities arise out of or are based upon (i) any material misstatement
or omission contained in any offering documents provided by the Company, or (ii)
any intentional actions by the Company, direct or indirect, in connection with
any offering by the Company, in violation of any applicable federal or state
securities laws or regulations. Furthermore, the Company agrees to reimburse
Consultant for any legal or other expenses incurred by Consultant in connection
with investigating or defending any action, proceeding, investigation, or claim
in connection herewith. The indemnity obligations of the Company under this
paragraph shall extend to the shareholders, directors, officers, employees,
agents, and control persons of Consultant.
Consultant hereby agrees to indemnity and hold the Company harmless from
any and all liabilities incurred by the Company under the Act, the various state
securities acts, or otherwise, insofar as such liabilities arise out of or are
based upon (i) any actions by Consultant, its officers, employees. agents, or
control persons, direct or indirect, in connection with any offering by the
Company, in violation of any applicable federal or state securities laws or
regulations, or (ii) any breach of this Agreement by Consultant.
The indemnity obligations of the parties under this paragraph 8 shall be
binding upon and inure to the benefit of any successors, assigns. heirs, and
personal representatives of the Company, the Consultant. and any other such
persons or entities mentioned hereinabove.
9. COVENANTS OF CONSULTANT
Consultant covenants and agrees With the Company that, in performing
Consulting Services Consultant will not publish, circulate or otherwise use any
solicitation materials business plan, financial statements, investor mailings or
updates other then materials provided by or otherwise approved by the Company.
10. MISCELLANEOUS
(a) Attorneys' Fees. If either party files any action or brings any
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proceeding against the other arising out of this Agreement. then the prevailing
party shall be entitled to reasonable attorneys' fees.
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(b) Waiver. No waiver by a party of any provision of this Agreement shall
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be considered a waiver of any other provision or any subsequent breach of the
same or any other provision. The exercise by a party of any remedy provided in
this Agreement or at law sha11 not prevent the exercise by that party of any
other remedy provided in this Agreement or at law.
(c) Assignment. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and no assignment shall be allowed without first
obtaining the written consent of the non-assigning party.
(d) Severability. In any condition or covenant herein contained is held
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to be invalid or void by any court of competent jurisdiction, the same shall be
deemed severable form the remainder of this Agreement and shall in no way effect
the other covenants and conditions contained herein.
(e) Amendment. The Agreement may be amended only by written agreement
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executed by all parties hereto.
(f) Headings. Titles or captions contained herein are inserted as a
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matter of convenience and for reference and in no way define, limit, extend, or
describe the scope of this Agreement or any provision hereof. No provision in
this Agreement is to be interpreted for or against either party because that
party or his legal representative drafted such provision.
(g) Notice. All written notices, demands, or requests of any kind , which
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either party may be required or any desire to serve on the other in connection
with this Agreement, must be served by registered or certified mail, with
postage prepaid and return receipt requested. In lieu of mailing, either party
may cause delivery of such notice, demands and requests to be made by personal
service facsimile transmission, provided that acknowledgment of reciept is made.
Notice shal1 be deemed given upon personal delivery or receipt of facsimile
transmission, or two (2) days after mailingAll such notices, demands, and
requests shall be delivered as follows:
If to the Company:
Esstec. Inc.
c/o Manhattan West, Inc.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxx Xxxx
FAX: 000-000-0000
If to Consultant:
Xxxxxx Corporate Group Inc.
X.X. Xxx 00000
Xxxxx, Xxxxxx Xxxx Xxxxxxxx
FAX: 000 0000000
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(h) Entire Agreement. This Agreement, including any Exhibits or Schedules
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attached hereto, contains all of the representations, warranties, and the entire
understanding and agreement between the parties. Correspondence, memoranda, or
agreements, whether written or oral, originating before the date of this
Agreement are replaced in total by this Agreement unless otherwise especially
stated.
(i) Counterparts: Facsimile Signatures. This Agreement may be executed
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simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
(j) Governing Law and Venue. This Agreement shall be governed by and
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construed in accordance with the laws of the State of California which would
apply if both parties were residents of California and this Agreement was made
and performed in Ca1ifornia. In any legal action involving this Agreement or the
parties' relationship, the parties agree that the exclusive venue for any
lawsuit shall be in the state or federal court located within the County of
Orange, California. The parties agree to submit to the personal jurisdiction of
the state and federal courts located within Orange County, California.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have placed their signatures hereon on
the day of the year first above written.
"COMPANY" "CONSULTANT"
ESSTEC, INC. XXXXXX CORPORATE GROUP INC.
A Nevada Corporation A BVI Corporation
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BY: /s/ Xxxxx X. Xxxxxx BY: /s/ Xxxx Xxxx Managing Director
ITS: VP of Operations ITS: Managing Director
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