EXHIBIT 99.5
CONSULTING AGREEMENT
Agreement made this 17th day of September, 2001, between RUBY MINING
CORPORATION (hereafter referred to as "Corporation"), and XXXXXX XXXXX
(hereinafter referred to as "Consultant"):
Company desires to engage Consultant to perform certain consulting services
for Company and consultant desires to perform such services on the terms and
conditions set forth below.
NOW THEREFORE, in consideration of the premises hereof and of the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Engagement; Scope of Services.
Company hereby engages Consultant to perform the duties set forth in this
Agreement. The engagement by Company of consultant under this Agreement is
non-exclusive and shall not limit Company's right to engage other persons
(including but not limited to consultants, investment bankers, finders and
brokers) to conduct activities on behalf of Company. During the term of this
Agreement Consultant may perform comparable services for any person or entity
involved in similar businesses in which Company (or any of its subsidiaries or
affiliates) is engaged.
2. Duties and Responsibilities of Consultant.
2.1. consistent with Consultant's experience and expertise in dealing with
all areas regarding marketing and public relations of the Small Cap, "Over the
Counter" companies, Consultant shall advise and consult with Company's
representatives or affiliated representatives on such subjects, meeting with
them from time to time at the request of Company. At such meetings, Consultant
shall advise, make recommendations, introduce marketing opportunities, present
marketing plans devised by Consultant, offer ideas to promote the products and
services of the Company and generally advise the company on similarly related
matters.
2.2. Consultant's duties hereunder shall include (but not be limited to):
2.2.1 Recommendation and Preparation of corporate strategies;
2.2.1 Prepare and present marketing plans for services and
products;
2.2.3 Provide due diligence studies for proposed strategic alliance
partners;
2.2.4 Advise company on all matters dealing with existing shareholder
relations;
2.2.5 Provide due diligence assistance on proposed merger or
acquisition targets.
2.3. Consultant shall submit and identify to Company all contacts for
possible business relationships; however, Consultant shall inform such contacts
that no obligation is created on the part of Company by virtue of such
submission.
2.4. Consultant shall devote such time as, in the sole discretion of the
Consultant, to the performance of his duties, is needed to fulfill his duties
under all of the terms and conditions of this Agreement.
2.5. Both parties intend this Agreement to be a personal contract and
Consultant shall not assign or delegate any rights, duties or obligations
arising under this Agreement without the prior written consent of Company, which
consent may be withheld in Company's sole discretion.
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3. Representations, Warranties, Covenants, and Agreements of Consultant.
3.1. Representations and Warranties. Consultant hereby represents and
warrants to Company as follows:
(a) Consultant is familiar with all aspects of the "Small Cap", "Over the
Counter" securities markets. Consultant also acknowledges that it is written and
established policy of Company to comply fully with all applicable laws and
regulations of the united States and all jurisdictions in which it does
business, and Consultant warrants that he will not take any action which would
constitute a violation of any law of any jurisdiction in which he performs
services or of the United States, including without limitation the Securities
Acts of 1933 and 1934, and any State Blue Sky or other securities laws.
(b) The execution and performance of this Agreement by Consultant will not
violate, or result in a default under, any agreement, law, statute, regulation,
or other authoritative rule of any governmental body to which Consultant is a
party or by which Consultant is bound.
(c) There is no restriction upon Company disclosing to any person or entity
(i) that Company has the relationship Consultant provided for in this Agreement,
(ii) that Consultant is to receive from Company compensation in connection with
the performance of services hereunder, (iii) the amount of that compensation, or
(iv) the terms upon which payment has been or will be made.
(d) This Agreement, when executed, will constitute the valid and legally
binding obligation of Consultant, fully enforceable against him in accordance
with its terms. The execution and performance of this Agreement by consultant
will not violate any constitutional provisions, statures, ordinances,
regulations, tax code, or other laws of the United States or the laws of the
State of Florida.
3.2 Covenants and Agreements. Consultant hereby covenants with Company and
agrees as follows:
(a) Consultant can use any agent, consultant, or finder in connection with
the performing of any of his duties hereunder without the prior written approval
of an authorized executive officer of Company. Notwithstanding anything to the
contrary in this Agreement, Consultant may delegate administrative duties
(including data processing and other ministerial functions) to third parties, so
long as such third parties are informed of, and agree to be bound by, the
provisions of Section 13 hereof.
(b) Consultant shall not hold herself out, directly or by implication, as
being an employee or contracting agent of Company.
(c) Consultant shall not make any representation, directly or by
implication, that Company has any obligation to any third party with respect to
the payment of any of the payments to be made to Consultant hereunder.
(d) In the performance of this Agreement, neither Consultant nor any
employee or agent of Consultant shall, except as approved in writing in advance
by Company, offer to pay, pay, promise to pay, or authorize the payment of, any
money, or offer to give, give, promise to give, or authorize the giving of,
anything of value, directly or indirectly, to any third person or entity.
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(e) Consultant hereby authorizes Company to disclose to any governmental
authority that properly requests such disclosure, (i) this Agreement, (ii) the
amount of any compensation paid to Consultant hereunder, and the terms and
manner of such payment, and (iii) such other information) as may be required by
law or regulation. Consultant agrees to provide to Company in a timely manner
any information necessary for company to make a disclosure.
(f) In performance of this Agreement, Consultant shall fully compl6y with
all applicable laws governing the transactions undertaken, including without
limitations the all Federal and State securities laws.
(g) Consultant shall inform Company immediately if any representation,
warranty, covenant, or agreement contained in Section 3 hereof is no longer
accurate.
4. Compensation.
Except as expressly provided herein, neither Company nor any parent,
subsidiary, or affiliate of Company or joint venture in which Company may have
an interest, shall be liable for any payment to Consultant.
4.1. Company shall pay to Consultant, during the term of this Agreement, a
one time retainer fee of 200,000 shares of the Company's "free trading" common
shares, to be issued pursuant to Form S-8 of the Securities Exchange Act of
1934. Such shares shall be fully paid and non assessable, issued pursuant to a
valid board of director's resolution and plan of compensation, adopted by the
Company, in accordance with the laws of the State of Florida and all applicable
federal securities laws.
5. Apportionment of Expenses: Right to Audit.
5.1 Consultant shall be reimbursed by the Company for all costs incurred by
Consultant in the performance of his duties, as set forth in Paragraph 2.2,
above.
5.2 Requests by Consultant for reimbursement of expenses must be
accompanies by an itemization of such expenses.
5.3. All compensation and expense reimbursements are subject to audit by
Company upon request by Company and Consultant agrees to cooperate fully with
Company in the event of such a request.
6. Term and Termination.
6.1. Term. The term of this Agreement (the "Term") shall commence on the
date hereof and shall continue for a period of thirty six (36) Months,
terminable upon thirty (30) days written after twenty four (24) months, subject
to the termination right of Company as set forth in Section 6.2 below. If
Consultant is actively engaged in promotion with respect to any business
relationship at the date of termination of the Agreement, Company may, at its
sole discretion, extend the term of this Agreement on a month-to-month basis.
This Agreement may be extended for one additional twenty four-month period upon
the mutual written agreement of the parties hereto.
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6.2 Special Termination Rights.
(a) Anything herein to the contrary notwithstanding, in the event that
Company determines, in good faith that its relationship with Consultant subjects
Company or any of its employees to potential violations of any applicable law,
regulation, or order, then this Agreement, and all obligations of Company
hereunder, shall expire immediately upon Company giving notice to Consultant of
such determination.
(b) This Agreement may be terminated at any time without notice by Company
(i) for illegal acts or willful neglect on the part of Consultant or
Consultant's agents or employees or (ii) in the event any representation,
warranty, covenant, or agreement of Consultant contained in this Agreement shall
prove to be inaccurate in whole or in part. In the event Company materially
breaches any of its obligations under this Agreement, Consultant shall have the
right to terminate this Agreement by giving Company written notice thirty (3)
days prior to Consultant's termination date.
(c) If clients are not satisfied with the review of 1st Quarter 75% of fee
will be returned to Client, after clients review of 2nd Quarter if not satisfied
50% of fee will be returned, after review of 3rd Quarter is not completely
satisfied 25% of fee will be returned to Client. (Note: After the third quarter
Performance Clause becomes null and void.)
7. Indemnification.
Consultant shall defend, indemnify and hold harmless Company and its
officers, directors, employees, agents, parent, subsidiaries and other
affiliates, from and against any and all damage, cost, liability, and expense
whatsoever (including attorney's fees and related disbursements) incurred by
reason of (a) any failure by Consultant to perform any covenant or agreement of
Consultant set forth herein, or (b) any breach by Consultant of any
representation, warranty, covenant or agreement contained herein. Company shall
have the right to offset against any fees or commissions due Consultant for any
damage, cost, liability, expense, fee or other disbursement incurred by Company
pursuant to this Section 7.
8. Independent Status of Consultant.
This Agreement establishes the rights, duties, and obligations of Company
and Consultant, and does not create an employer-employee or agency relationship
between Company, or any entity affiliated with Company, and Consultant, or any
of Consultant's employees or agents. Consultant acknowledges and agrees that
Consultant is an independent contractor to Company and Consultant shall not act
as an agent of Company. As an independent contractor, Consultant shall be
responsible for any social security taxes, insurance, and any other taxes or
fees that are applicable to him and his employees and agents. Pursuant to the
tax laws of the United States, or any state, thereof.
9. Promotional Materials.
From time to time, Company may furnish Consultant with such promotional
data, materials and technical information as Company deems necessary for
Consultant to have in the performance of her duties hereunder. Consultant shall
use such materials in furtherance of the objectives of this Agreement and shall
not disseminate the same except as set forth in Section 13.
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10. Governing Law.
This Agreement shall be governed by, and its terms and conditions shall be
construed and enforced in accordance with the domestic laws of the State of
Florida of the United States of America excluding its principle of conflicts of
laws and the parties hereto and hereby irrevocably submit to the jurisdiction
and venue of the courts of the State of Florida, county of Palm Beach to resolve
any disputes arising hereunder or related hereto.
11. Assignment.
Neither this Agreement nor any money due or to become due hereunder may be
assigned, in whole or in part, by Consultant without the prior written consent
of Company, which consent may be withheld in Company sole discretion.
12. Notices.
All notices or other communications required or permitted to be given
hereunder shall be (as elected by the person giving such notice) (a) personally
delivered, (b) transmitted by postage prepaid registered mail (airmail if
international), or (c) transmitted by telex, with postage prepaid mail
information (airmail if international), to the parties as follows:
12.1 If to Company: Ruby Mining Company
Lenox Building
0000 Xxxxxxxxx Xxxx, X.X. Xxxxx 000
Xxxxxxx, XX 00000
12.2 If to Consultant: Xxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Except as otherwise specified herein, all notices and other communications
shall be deemed to have been given on the date of receipt if delivered
personally, fourteen (14) days after posting if transmitted by mail, or the date
of transmission with confirmed answer back if transmitted by telex, whichever
shall first occur. Any party hereto may change its address for purposes hereof
by written notice to the other party.
13. Use of Information and Non-Solicitation.
Any information including, but not limited to, data, business information,
technical information, specifications, drawings, sketches, models, samples,
tools, promotional material, computer programs and documentation, written, oral
or otherwise together with analyses, compilations, comparisons, studies or other
documents prepared by Consultant or his partners or employees which contain or
reflect such information (all hereinafter designated "Information") furnish to
Consultant hereunder or in contemplation hereof shall remain Company property or
the property of the Company subsidiary or affiliate which furnished the
Information to Consultant. All copies of such information written, graphic or
other tangible form shall be returned to Company or such Company subsidiary or
affiliate upon request. Unless such information was previously known to
Consultant free of any obligation to keep it
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confidential or has been or is subsequently made public by Company or a third
party without violation of this Agreement, it shall be kept confidential by
"Consultant and his partners and employees; and shall be disclosed only upon the
prior written consent of Company or upon such terms as may be agreed upon in
writing by the parties. Any findings, reports, questionnaires, or other results
of this Agreement shall be the exclusive property of Company including title to
copyright in all copyrightable material and shall be considere3d a "work made
for hire" in accordance with the copyright statute.
Consultant covenants and agrees that during this Agreement and the two (2) year
period immediately following the termination of this Agreement (including any
extensions hereof), Consultant shall not (1) directly or indirectly induce or
attempt to induce any employee of company which Consultant served during the
term of this Agreement; provided, however, that Consultant may offer, take or
receive any employment or services (on behalf of herself or on behalf of
another) to any customer, partner or joint venturer of which, without any
solicitation, inducement or direction by Consultant, has terminated contractual
or other business relationships with Company.
14. Miscellaneous.
This Agreement constitutes the entire understanding of the parties
concerning the subject matter hereof, and supersedes all prior agreements and
understandings, whether written, oral or otherwise, between parties, and may be
altered or amended only in a writing signed by both parties. Except as otherwise
expressly provided herein, no purported waiver by any party of any breach by the
other party of its obligations, representations, warranties, agreements or
covenants hereunder shall be effective unless made in a writing, and no failure
to pursue or elect any remedy with respect to any default under or breach of any
provisions of this Agreement shall be deemed to be a waiver of any subsequent,
similar or different default or breach. Consultant hereby consents and agrees
that the Circuit Court, County of Volusia, State of Florida, is the exclusive
forum for litigation of any claim by Consultant arising under this Agreement.
Consultant hereby irrevocably waives and relinquishes any right to bring or
cause to be brought a claim in any judicial or administrative forum located
outside of the State of Florida of the United States of America.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first written above.
ATTEST: [Ruby Mining Company]
By: /s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- -----------------------------------
(SEAL) President
ATTEST: [Xxxxxx Xxxxx]
By:
/s/ Xxxxxx Xxxxx
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Consultant
