CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective this 1st day
of February, 1999 by Xxxxx Xxxxxxx, an individual ("Consultant") and
AmeriResource Technologies, Inc. ("Client") with principal offices located at
0000 X Xxxx Xxxxxx, Xxxxxx, Xxxxxx 00000.
PREMISES
WHEREAS, Client wishes to obtain financial consulting services.
WHEREAS, Consultant is experienced in providing consulting and other
services to firms who desire to make complex financial and structural changes to
their firms.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Client and Consultant
agree as follows:
Section 1 - Engagement of Consultant and Term of Agreement
A. Client retains Consultant to assist Client in general business
consulting, including introducing Client to potential business partners,
introduce Client to potential acquisition or merger candidates in the form of
business opportunities, assisting in a restructuring of Client's common stock,
if necessary, the issuance of new shares and assisting Client in the preparation
of agreements, documents, filings and other material necessary to effectuate the
above services ("Consulting Services").
B. The term of this Agreement ("Term") shall, subject to earlier
termination as described herein, be one (1) year from the execution of this
Agreement, unless a party to this Agreement, in writing, serves notice of its
decision to terminate this Agreement no later than thirty (30) days before the
expiration of the Term of this Agreement or expiration of any extension hereof.
Section 2 - Compensation
Client shall compensate Consultant in the following manner:
A. Before each issuance of stock, or exchange of stock owed
pursuant to this Agreement, Consultant shall provide Client
with a list of services to be provided or services that have
been provided under this Agreement.
B. Consultant shall be issued, upon the execution of this
Agreement, a non-refundable engagement fee and as payment for
services provided prior to the execution hereof twenty million
(20,000,000) shares of Client's capital stock ("Capital
Stock"). For purposes of this Agreement Capital Stock shall be
defined as any instrument which provides an interest in the
equity of Client or other applicable corporation.
C. Client and Consultant agree that any additional consulting fee
shall be negotiated and agreed upon by the parties prior to
any additional consulting services being performed. Once the
fee has been determined, Consultant shall xxxx Client on a
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monthly basis, and payment shall be due upon receipt of the
xxxx, payable in either cash or in Client's Common Stock
("Common Stock").
D. If Consultant assists Client in merging with or acquiring a
Company, either by introducing the Company to Client or by
providing any other services in connection with the merger and
acquisition, Consultant shall be compensated, in addition to
the rights and shares specified above, an amount of shares of
Capital Stock sufficient so that upon such issuance,
Consultant owns four and one-half percent (4.5%) of the total
issued and outstanding shares of the corporate entity created
from the merger with or acquisition of the Company by Client
("New Entity"). New Entity shares shall be issued within five
(5) days of Client's receipt of services. If New Entity is not
a public company ("Public Company") (defined as a company
registered under Section 12 of the Exchange Act or a reporting
company subject to the reporting requirements of Section 15(d)
of the Exchange Act) then, at Consultant's option, in lieu of
receiving New Entity shares, an amount equal to four and
one-half percent (4.5%) of the total issued and outstanding
shares of Client's Capital Stock shall be issued to
Consultant. Shares shall be issued within five (5) days of
Client's receipt of services. Consultant may introduce a
company to Client in writing, verbally, by facsimile or by
telephone conversation or conference.
E. Upon Client entering into a transaction involving a business
opportunity which Consultant introduces to Client, including
but not limited to a joint venture, licensing agreement, or
other contract or asset, Consultant shall receive a finder's
fee in the amount of nine and nine-tenth percent (9.9%) of the
market value of the assets received by Client in connection
with such transaction. Unless otherwise mutually agreed upon
by Client and Consultant, compensation shall be payable in
either cash, or in "like kind", but only "like kind" if
Consultant determines that the "like kind" asset is easily
divisible and liquidable. Consultant may introduce a business
opportunity to Client in writing, verbally, by facsimile or by
telephone conversation or conference.
F. Client shall reimburse Consultant for expenses incurred during
and in relation to Consultant's performance under this
Agreement. Such expenses include, but are not limited to,
travel, lodging, filing fees, printing, postage, delivery,
shipping, copying, telephone calls, overnight packages,
facsimiles, and all other out-of-pocket expenses.
G. All shares of stock that are issued to Consultant under this
Agreement shall, when issued, be validly issued, fully paid
and non assessable.
Section 3 - Registration Rights
Client agrees to register all shares issued, exchanged or otherwise
transferred to Consultant pursuant to this Agreement ("Payment Shares") as
follows:
A. If, at any time commencing after the termination of this
Agreement and for a period of three (3) years thereafter,
Client, New Entity, or any of their successors, proposes to
file a registration statement for the public sale of shares of
its common stock, written notice of such proposal, will be
given to Consultant at least 60 days prior to the filing of
such registration statement. The term "Registration Statement"
as used in this Section shall be deemed to include any form
which may be used to register a distribution of securities to
the public, a post-effective amendment to a registration
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statement, or a Notification and Offering Circular pursuant to
a Regulation A Offering when necessary to perfect an exemption
thereunder. Client, New Entity, or any of their successors,
agree that on written notice received from Consultant, within
20 days after Consultant's receipt of the notice to file a
registration statement, Client shall afford the holders of
Payment Shares the opportunity to have the Payment Shares
included in such Registration Statement. Notwithstanding the
provision of this section, Client shall have the right, at any
time after it shall give written notice pursuant to this
subsection to elect not to file any proposed Registration
Statement, or to withdraw the same after the filing but prior
to the effective date thereof. Notwithstanding any provision
to the contrary contained herein, Client shall not be required
to include any of the Payment Shares transferred hereunder in
any Registration Statement with respect to shares offered in
any underwriting:
(i) unless Consultant agrees to offer such
shares, on the same terms and conditions as
Client shares are being offered, and to sign
an underwriting agreement in the form to be
signed by the other offerors; or
(ii) if, in the good faith and reasonable opinion
of the managing underwriter of the offering,
the sale of the Payment Shares to be
included would be materially detrimental to
the remainder of the offerors.
In such an event the amount of Payment Shares and the amount
of shares to be registered, if any, by the remainder of the
offerors (other than Client), shall be proportionally reduced
to a level acceptable to the managing underwriter of the
Offering, who may reasonably refuse to have any shares
registered.
B. The shareholders desiring to sell shares of common stock
pursuant to the registration rights granted herein shall
provide Client with all reasonable information relating to
such sale and on which Client shall be entitled to rely and to
include such information in any such Registration Statement.
All sales pursuant to any such Registration Statement shall be
made in accordance with the provision of the Securities Act of
1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") and
Client shall not be required to include any such Payment
Shares in any registration until it has received written
assurances reasonably satisfactory in form and substance to
Client from the shareholders offering such Payment Shares that
such sales shall be so conducted. All expenses incurred by
Client in complying with the registration requirements hereof
(except fees and disbursements of counsel for any shareholder
and underwriting discounts, commissions, or similar expenses
to be incurred in connection with the sale of Payment Shares)
shall be borne by Client. On notice to any shareholder
offering Payment Shares covered by a Registration Statement
that such Registration Statement or prospectus relating
thereto requires revision, such holder will immediately cease
to make offers or sales pursuant to such Registration
Statement and return all such Registration Statements and
prospectuses to Client. All registration rights granted herein
may apply only to shares of common stock issued by Client.
Client is under no obligation to maintain the effectiveness of
any Registration Statement for more than an aggregate of 90
days.
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C. In connection with the filing of any Registration Statement or
offering statement under this section, Client covenants and
agrees that it will take all necessary action which may be
required in qualifying or registering the Payment Shares
included in a Registration Statement or offering statement for
the offer and sale under the securities or blue sky laws of
such states as may be reasonably requested by the holders of
the Payment Shares; provided, that Client shall not be
obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business
under the laws of any such jurisdiction.
D. In the event that the payment Shares are the subject of or are
included in any Registration Statement or offering statement
which is filed and becomes effective, Client agrees to utilize
its best efforts to keep the same, including blue sky filings,
for an effective period of not less than 90 days. The holders
of the Payment Shares shall cooperate with Client and shall
furnish such information as Client may reasonably request in
connection with any such registration or offering statement
hereunder, on which Client shall be entitled to rely.
E. Client further agrees that in the event that counsel to
Consultant is of the reasonable opinion that the Payment
Shares may be transferred and/or sold in full compliance with
the provisions of the Act, without the need for filing a
Registration Statement, Client will fully cooperate in
connection with such transfer and/or sale at Client's sole
expense.
F. Client further agrees and represents that while any of the
Payment Shares are outstanding and held by Consultant or
Consultant's affiliates, Client will timely file all reports
and documents required under the Exchange Act and the
Securities Act as well as such additional information as is
necessary in order to allow the holder of the Payment Shares
to rely upon the provisions of Rule 144 promulgated under the
Securities Act with respect to the current public information
requirements contained in Rule 144(c).
In the event of any registration of any Client common stock
under the Securities Act pursuant to this Section 5, Client
shall indemnify and hold harmless Consultant or any subsequent
transferee of the Payment Shares against any losses, claims,
damages or liabilities, joint or several, to which such holder
may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any alleged untrue statement of
any material fact contained, on the effective date thereof, in
any Registration Statement under which such securities were
registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any
amendment required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse
such holder for any legal or any other expenses reasonably
incurred by such holder in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that Client shall not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any alleged untrue
statement or alleged omission made in such Registration
Statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with written
information furnished to Client by such holder specifically
for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of
such holder and shall survive the transfer of such securities
by such holder and consummation of the transactions
contemplated by this Agreement.
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Section 4 - Client's Representations
Client represents, warrants and covenants to Consultant that each of
the following are true and complete as of the date of this Agreement:
A. Corporate Existence. Client is a corporation duly organized,
validly existing, and in good standing under the laws of the
state of its incorporation, with full corporate power and
authority and all necessary governmental authorizations to
own, lease and operate property and carry on its business as
it is now being conducted. Client is duly qualified to do
business in and is in good standing in every jurisdiction in
which the nature of its business or the property owned or
leased by it makes such qualifications necessary.
B. Disclosure Documents. Client has or will cause to be
delivered, concurrent with the execution of this Agreement,
copies of its articles of incorporation and bylaws, each as
amended and as in effect on the date hereof, and any documents
that may be required to effectuate any transaction
contemplated herein.
C. Client's Capitalization. All of the shares to be issued
hereunder have been, or will be at the time of issuance, duly
authorized and validly issued, are fully paid and non
assessable and will be issued to the Consultant free and clear
of any liens, charges, encumbrances, security interests,
options, rights or claims of others with respect thereto.
There are no preemptive or similar rights on the part of any
holder of any class of securities of Client. No options,
warrants, calls, conversion, subscription or other rights,
agreements or commitments of any kind obligating Client
contingently, or otherwise, to issue or sell any shares of its
capital stock of any class, or any securities convertible into
or exchangeable for any such shares, are outstanding and no
authorization therefor has been given. The shares are not
subject to any contractual restrictions relating to their
disposition. All voting rights are vested exclusively in the
common stock of Client.
D. Client's Authority for Agreement. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Client.
This Agreement has been duly executed and delivered by Client
and constitutes the valid and legally binding obligation of
Client enforceable in accordance with its terms, except to the
extent that enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally. The
execution and delivery of this Agreement and the consummation
of the transactions contemplated herein will not conflict with
or result in any violation of any provision of the Articles of
Incorporation or Bylaws of Client. To the best of Client's
knowledge, after due inquiry, the execution and delivery of
this agreement and the consummation of the transaction
contemplated herein will not conflict with any mortgage,
indenture, lease, contract, commitment, agreement, or other
instrument, permit, concession, grant, franchise, license,
judgement, order, decree, statute, law, ordinance, rule or
regulation applicable to Client or any of its properties or
assets.
E. Consents and Authorizations. No consent, approval, order or
authorization of, or registration, declaration, compliance
with or filing with, any governmental or regulatory authority
is required in connection with the execution and delivery of
this Agreement to permit the consummation by Client of the
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transactions contemplated herein or to prevent the termination
of any material right, privilege, license or agreement of
Client or to prevent any material loss to Client or the
Client's business, by reason of the transactions contemplated
herein.
F. Compliance with Law. To the best of Client's knowledge, after
due inquiry, Client is not in violation of or default under
any statute, law, ordinance, rule, regulation, judgment,
order, decree, permit, concession, grant, franchise, license
or other governmental authorization or approval applicable to
it or any of its properties or business. There are no
proceedings pending or threatened which may result in the
revocation, cancellation, suspension, or any adverse
modification of any permit, concession, grant, franchise,
license or other governmental authorization or approval
necessary for the conduct of Client's business or which
question the validity of this Agreement or of any action taken
or to be taken in connection herewith or the consummation of
the transactions contemplated hereby. Client has all
franchise, licenses, permits and other governmental approvals
necessary to enable it to carry on its business as presently
conducted, except where the failure to have such franchises,
licenses or permits or other governmental approvals would not
have, individually or in the aggregate, a material and adverse
affect on Client's business.
G. Minute Books and Stock Options. The minute books of Client
contain full and complete minutes of all annual, special and
other meetings (or written consents in lieu thereof) of the
directors and committees of directors and shareholders of
Client; the signatures on such minutes and written consents
are the true signatures of the persons purporting to have
signed them; and the stock ledger of Client with respect to
shares of Client's common stock issued or transferred is
complete and no documentary stamp taxes are required to be
affixed and canceled in connection with the transfer or
issuance of the shares.
H. 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.
I. Independent Legal and Financial Advice. Consultant is not a
law firm, neither is it an accounting firm. Consultant does
however work with professionals to better provide consulting
services. Client represents that it has not nor will it rely
upon any legal or financial representation made by Consultant,
and that Client has and will continue to seek the independent
advice of legal and financial counsel 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 acknowledges that the attorneys, accountants
and other advisors Consultant works with represent the
interests of Consultant solely, 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.
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Section 5 - Non-Circumvention
Client agrees that Client will not enter into any merger with or
acquisition of a Company, raise any funds for which Consultant provided
services, or enter into any transaction involving a business opportunity or
asset introduced to Client by Consultant, without compensating Consultant
pursuant to this Agreement. Neither will Client terminate this Agreement solely
as a means to avoid paying Consultant compensation earned or to be earned, or in
any other way attempt to circumvent Consultant.
Section 6 - Termination of Agreement by Consultant and by Client
I. Consultant may terminate this Agreement if the following occurs:
A. Payments due under this Agreement are not timely made.
B. In the judgment of the Board of Directors of Consultant,
Client's actions or conduct make it unreasonable for
Consultant to perform under this Agreement. Such acts include,
and are or may be perceived as being in the nature of,
dishonesty, illegal activities, activities harmful to the
reputation of the Consultant, and activities which may create
civil or criminal liability for the Consultant.
C. Consultant makes a bona fide decision to terminate its
business and liquidate its assets.
D. Client misrepresents its corporate standing, power to enter
and bind itself to this Agreement, misrepresentation of its
Section 3 guarantees, or any other concealed or misrepresented
material fact which would decrease the binding effect of this
Agreement on Client.
E. If after conduct of a due diligence investigation, Consultant
concludes that an intended merger with or acquisition of a
Company, public offering, or other action contemplated under
this Agreement (the "Transaction"), is not viable, Consultant
may give ten (10) days written notice to Client, stating in
particular why the Transaction is not viable, and if after ten
(10) days of receipt of the written notice, Client insists
that Consultant continue performance on the Transaction,
Consultant may then terminate the Agreement.
F. An unanticipated material change in either the market, Client
or Consultant makes continued performance under this Agreement
unreasonable.
G. Breach of any provision of this Agreement.
H. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of all compensation owed pursuant
to Section 2 up to the time of termination of this Agreement.
Consultant shall also be entitled to any fees owed pursuant to
Section 2, should Client, subsequent to the termination of
this Agreement, enter into any transaction contemplated
pursuant to Section 2. Pursuant to Section 2, Consultant shall
also be entitled to reimbursement of any expenses incurred, up
to the time of termination of this Agreement along with any
expenses incurred as a result of the termination.
II. Client may terminate this Agreement under the following conditions:
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A. Consultant fails to follow Client's reasonable instructions.
Client must advise Consultant that his actions or inactions
are unacceptable and give Consultant thirty (30) days in which
to comply. If Consultant fails to comply within thirty (30)
days, Consultant may be terminated hereunder by Client's
service of notice of termination to Consultant.
B. If, in the judgment of the Board of Directors of Client,
Consultant's actions or conduct would make it unreasonable to
require Client to retain Consultant. Such acts include, and
are in the nature of, dishonesty, illegal activities,
activities harmful to the reputation of the Client, and
activities which create civil or criminal liability for the
Client.
C. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of all compensation owed pursuant
to Section 2 up to the time of termination of this Agreement.
Consultant shall also be entitled to reimbursement of any
expenses incurred, up to the time of termination of this
Agreement, along with any expenses incurred as a result of the
termination.
Section 7 - Utilization of Attorneys
Consultant utilizes attorneys to assist in preparing the documentation
required to effectuate the transactions contemplated by this Agreement. The
attorneys utilized by Consultant represent only Consultant, and Consultant's
interest in providing consulting services and do not in anyway represent the
interests of any party to this Agreement other than Consultant's. Client is
advised, and has represented, that he will seek independent legal counsel to
review all documentation provided to Client by Consultant.
Section 8 - Nondisclosure of Confidential Information
In consideration for the Client entering into this Agreement,
Consultant agrees that the following items used in the Client's business are
secret, confidential, unique, and valuable, were developed by Client at great
cost and over a long period of time, and disclosure of any of the items to
anyone other than clients' officers, agents, or authorized employees will cause
Client irreparable injury.
A. Non-public financial information, accounting information,
plans of operations, possible mergers or acquisitions prior to
the public announcement.
B. Customer lists, call lists, and other confidential customer
data;
C. Memoranda, notes, records concerning the technical and
creative processes conducted by Client;
D. Sketches, plans, drawings and other confidential research and
development data; or
E. Manufacturing processes, chemical formulae, and the
composition of Client's products.
Consultant shall have no liability to the Client with respect to the
use or disclosure to others not party to this Agreement, of such information as
Consultant can establish to:
A. have been publicly known;
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B. have become known, without fault on the part of Consultant,
subsequent to disclosure by Client of such information to
Consultant;
C. have been otherwise known by Consultant prior to communication
by the Client to Consultant of such information; or
D. have been received by Consultant at any time from a source
other than Client lawfully having possession of such
information.
Section 9 - Best Efforts
Consultant agrees that it will at all times faithfully and to the best
of its experience, ability and talents, perform all the duties that may be
required of and from Consultant pursuant to the terms of this Agreement.
Consultant 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.
Section 10 - Client's Right to Approve Transaction
Client expressly retains the right to approve, in its sole discretion,
each and every transaction introduced by Consultant that involves Client as a
party to any agreement. Consultant and Client mutually agree that Consultant is
not authorized to enter into agreements on behalf of Client.
Section 11 - Client Under No Duty or Obligation to Accept or Close on
any Transactions
It is mutually understood and agreed that Client is not obligated to
accept or close any transaction submitted by Consultant.
Section 12 - Place of Services
The Consulting Services contemplated to be performed by Consultant will
be performed through Consultant's offices; however, it is understood and
expected that Consultant may make contacts with persons and entities in any
other place deemed appropriate by Consultant.
Section 13 - Nonexclusive Services
Client acknowledges that Consultant is currently providing services of
the same or similar nature to other parties and Client agrees that Consultant is
not prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity.
Section 14 - All Prior Agreements Terminated
This Agreement comprises the entire agreement and understanding between
the parties hereto at the date of this Agreement as to the subject matter hereof
and supersedes and replaces all proposals, prior negotiations and agreements,
whether oral or written, between the parties hereto in connection with the
subject matter hereof. None of the parties hereto shall be bound by any
conditions, definitions, warranties or representations with respect to the
subject matter of this Agreement other than as expressly provided in this
Agreement unless the parties hereto subsequently agree to vary this Agreement in
writing, duly signed by authorized representatives of the parties hereto.
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Section 15 - Consultant is not an Agent or Employee of Client
Consultant's obligations under this agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or bind Client.
For the purposes of this Agreement, Consultant is an independent contractor. All
final decisions with respect to acts of Client or its affiliates, whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of Client or such affiliates and Consultant, its
employees or agents shall under no circumstances be liable for any expense
incurred or loss suffered by Client as a consequence of such action or
decisions.
Section 16 - Disclosure of Documents
Upon the execution of this Agreement, and prior to the consummation of
the transactions contemplated herein, Client will provide Consultant, at
Client's sole expense, audited financial statements in accordance with generally
accepted accounting principles and financial documentation with respect to
Client since the later of either the date of incorporation of Client or three
(3) years prior to the execution of this Agreement, other financial and
corporate information, pro-forma, due-diligence, articles of incorporation,
by-laws, business plans, proof of ownership of assets, accounts receivable, bank
statements and copies of deeds, liens, mortgages, a certificate of good standing
issued by Client's state of incorporation, and any other documents that may be
reasonably required by Consultant to provide services to Client for the
transactions contemplated herein. After review of the documents and information
provided in this paragraph, or after review of the due diligence information
requested by Client, Consultant or Client may make a determination that the
transactions contemplated are not in their best interests and may terminate this
Agreement with no further obligation.
Section 17 - Continue Operations in Substantially Same Manner
Client will not transfer, sell or hypothecate, assign or distribute any
of the assets currently in its possession except upon the written notification
to the parties to this Agreement, and will continue operations in substantially
the same manner as it is presently functioning, until the closing of the
transactions mutually acceptable to the parties are entered into and this
agreement has been consummated.
Section 18 - Miscellaneous
A. Authority. The execution and performance of this Agreement
have been duly authorized by all requisite corporate action.
This Agreement constitutes a valid and binding obligation of
the parties hereto.
B. Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
C. Waiver. No term of this Agreement shall be considered waived
and no breach excused by either party unless made in writing.
No consent, waiver or excuse by either party, express or
implied, shall constitute a subsequent consent, waiver or
excuse.
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D. Assignment:
(i) The rights and obligations of the Consultant under
this Agreement shall inure to the benefit of and
shall be binding upon its successors and assigns.
There shall be no rights of transfer or assignment of
this Agreement by Client except with the prior
written consent of the Consultant.
(ii) Nothing in this Agreement, expressed or implied, is
intended to confer upon any person, other than the
parties and their successors, any rights or remedies
under this Agreement.
E. Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the Unites
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal or when sent by facsimile
transmission, charges prepaid provided that the communication
is addressed:
(i) In the case of Consultant to:
Xxxxx Xxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
(ii) In the Case of Client to:
AmeriResource Technologies, Inc.
X.X. Xxx 00000
Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
(000) 000-0000
(000) 000-0000
or to such other person or address designated by Client in
writing to receive notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any
heading and the text of this Agreement, the text shall
control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties
with respect to the transaction contemplated by the Agreement.
It may be executed in any number of counterparts but the
aggregate of the counterparts together constitute only one and
the same instrument.
H. Effect of Partial Invalidity. 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 unenforceability
shall not affect any other provisions of this Agreement, but
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this Agreement shall be constructed as if it never contained
any such invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance
of this Agreement shall be governed by the laws of the State
of Utah, without regard to its law on the conflict of laws.
Any dispute arising out of this Agreement shall be brought in
a court of competent jurisdiction in Salt Lake County, Utah.
The parties exclude any and all statutes, laws and treaties
which would allow or require any dispute to be decided in
another forum or by other rules of decision than provided in
this Agreement.
J. 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 actual attorney's fees,
court costs, and other costs incurred in proceeding with the
action from the other party. The attorney's fees, court costs
or other costs, may be ordered by the court in its decision of
any action described in this paragraph or may be enforced in a
separate action brought for determining attorney's fees, court
costs, or other costs. Should either party be represented by
in-house counsel, all parties agree that 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.
K. Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement, and shall
execute such other and further documents and take such other
and further actions as may be necessary or convenient to
effect the transactions described herein.
M. Indemnification. Client and Consultant agree to indemnify,
hold harmless and, at the party seeking indemnification's sole
option, defend the other from and against all demands, claims,
actions, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties, court fees,
and attorneys' fees and expenses asserted against or imposed
or incurred by either party by reason of or resulting from a
breach of any representation, warranty, covenant condition or
agreement of the other party to this Agreement. Neither party
shall be responsible to the other party for any consequential
or punitive damages.
0. 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.
P. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date herein above written.
By:/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
By:/s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx, CEO
AmeriResource Technologies, Inc.
13
