Exhibit 99.5
Consulting Agreement with Xxxx Xxxxxxxxx
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into as of this 1st day
of September, 2003, between Xxxx Xxxxxxxxx, an individual residing in the
province of Ontario, Canada(herein referred to as "the Consultant") and Xxxxx
Biometry, Inc. (herein referred to as "the Company").
WITNESSETH:
WHEREAS, COMPANY requires the services of CONSULTANT; and
WHEREAS, CONSULTANT is in the business of providing consulting services to
private and public companies.
AGREEMENT
1. Appointment
COMPANY hereby appoints and engages CONSULTANT as its advisor and hereby retains
and employs CONSULTANT on the terms and conditions of this Consulting Agreement.
CONSULTANT accepts such appointment and agrees to perform the services upon the
terms and conditions of said Consulting Agreement.
2. Engagement
COMPANY engages CONSULTANT to provide the services described in paragraph 3
herein. CONSULTANT accepts said engagement and COMPANY as a client, and agrees
to provide services to COMPANY as further described in paragraph 3 below and
subject to the provisions of this Consulting Agreement.
3. Authority and Description of Services
During the term of this Consulting Agreement CONSULTANT will furnish some or all
of the various services from time to time as requested by the COMPANY and agreed
upon by the parties as described herein as follows:
>> Acting as advisor to the Company with respects to analyzing
the existing business of the Company and make recommendations
regarding proper corporate structure, corporate governance and
financial management;
COMPANY acknowledges that CONSULTANT will devote such time as is reasonably
necessary to perform the services for COMPANY, having due regard for
CONSULTANT's commitments and obligations to other businesses for which it
performs consulting services.
IT IS HEREBY ACKNOWLEDGED BY THE PARTIES THAT: CONSULTANT IS NOT ENGAGED TO
RAISE CAPITAL OR INTRODUCE THE COMPANY TO INVESTOR FOR SUCH PURPOSES.
4. Term of Agreement
This Consulting Agreement shall become effective upon execution hereof and shall
continue thereafter and remain in effect for a period of six (6) months
terminating February 28, 2004.
5. Where Services Shall be Performed
CONSULTANT's services shall be performed at the main office location of
CONSULTANT or other such designated location(s) as CONSULTANT and COMPANY agree
are the most advantageous for the work to be performed.
6. Reliance upon COMPANY
COMPANY shall act diligently and promptly in reviewing materials submitted to it
by CONSULTANT to enhance timely distribution of the materials and shall inform
CONSULTANT of any inaccuracies contained therein within a reasonable time prior
to the projected or known publication date The COMPANY acknowledges that the
consultant relying exclusively upon the information he receives from the COMPANY
and the COMPANY acknowledges that it is responsible for the truthfulness of the
information provided to the COMPANY and therefore, the COMPANY agrees to
indemnify, defend, release and hold harmless the consultant, its Officers,
Directors, Agents, Employees or Assigns from and against any losses,
liabilities, damages, deficiencies, costs or expenses (including interest,
penalties and reasonable attorneys fees and disbursements) based upon, arising
out of or otherwise resulting from the CONSULTANT entering into this Agreement.
7. Duties of COMPANY
a. COMPANY shall supply CONSULTANT, on a regular and timely basis, with all
approved data and information about COMPANY, its management, its products, and
its operations and COMPANY shall be responsible for advising CONSULTANT of any
facts which would affect the accuracy of any prior data and information
previously supplied to CONSULTANT.
b. COMPANY shall promptly supply CONSULTANT with full and complete copies of all
filings with all Federal and State securities agencies; with full and complete
copies of all shareholder reports and communications whether or not prepared
with CONSULTANT's assistance; with all data and information supplied to any
analyst, broker-dealer, market maker, or other member of the financial
community; and with all product/service brochures, sales materials, etc.
c. CONSULTANT services are not intended to be used in the sale or offering of
securities.
d. COMPANY shall contemporaneously notify CONSULTANT if any information or data
being supplied to CONSULTANT has not been generally released or promulgated.
8. Representation and Undertakings
a. COMPANY shall be deemed to make a continuing representation of the accuracy
of any and all material facts, material, information and data which it supplies
to CONSULTANT and COMPANY acknowledges its awareness that CONSULTANT will rely
on such continuing representation in disseminating such information and
otherwise performing its functions hereunder.
b. CONSULTANT, in the absence of notice in writing from COMPANY, will rely on
the continuing accuracy of material, information and data supplied by COMPANY.
c. CONSULTANT'S activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and shall not
constitute acting as a securities broker or dealer under Federal or State
securities laws.
d. COMPANY shall promptly deliver to CONSULTANT a complete due diligence package
to include last six (6) months of press releases and all other relevant
materials, including but not limited to corporate reports, brochures, etc.
9. Compensation
CONSULTANT shall be paid Fifty Thousand (50,000) fully vested common shares in
the capital stock of the Company in full satisfaction of all claims in relation
to the said services. These shares shall be deemed earned upon the execution of
this Agreement.
CONSULTANT shall be paid bonuses from time to time for services rendered beyond
those required by this Agreement.
10. CONSULTANT as an Independent Contractor
CONSULTANT shall provide said services as an independent contractor, and not as
an employee or of any company affiliated with COMPANY. CONSULTANT has no
authority to bind COMPANY or any affiliate of COMPANY to any legal action,
contract, agreement, or purchase, and such action cannot be construed to be made
in good faith or with the acceptance of COMPANY; thereby becoming the sole
responsibility of CONSULTANT. CONSULTANT is not entitled to any medical
coverage, life insurance, savings plans, health insurance, or any and all other
benefits afforded COMPANY employees. CONSULTANT shall be solely responsible for
any Federal, State or local taxes, and should COMPANY for any reason by required
to pay taxes at a later date, CONSULTANT shall reassure such payment is made by
CONSULTANT and not by COMPANY. CONSULTANT shall be responsible for all workers
compensations payments.
11. CONSULTANT May Engage in Conflicting Activities
COMPANY hereby acknowledges notification by CONSULTANT and understands that
CONSULTANT does, and shall, represent and service other and multiple clients in
the same manner as it does COMPANY, and that COMPANY is not an exclusive client
of CONSULTANT.
12. Severability
If any provision of this Consulting Agreement shall be held to be contrary to
law, invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Consulting Agreement is contrary to law, invalid or unenforceable, and that
by limiting such provision it would become valid and enforceable, then such
provision shall be deemed to be written, construed, and enforced as so limited.
13. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior to the
expiration of the term provided in paragraph 4 above except as follows: a. Upon
the bankruptcy or liquidation of the other party; whether voluntary or
involuntary; b. Upon the other party taking the benefit of any insolvency law;
and/or c. Upon the other party having or applying for a receiver appointed for
either party.
14. Attorney's Fees
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including all costs, reasonable
attorney fees, expenses and court costs through trial, appeal and to final
disposition.
15. COMPANY acknowledges CONSULTANT is not provided legal advice and COMPANY has
sought the advice of legal counsel prior to entering into this Agreement.
16. Inurement
This Consulting Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, personal
representatives, successors, assigns and any addenda attached hereto.
17. Entire Agreement
This Consulting Agreement contains the entire agreement of the parties and may
be modified or amended only by agreement in writing, signed by the party against
whom enforcement of any waiver, change, amendment, modification, extension or
discharge is sought. It is declared by both parties that there are no oral or
other agreements or understanding between them affecting this Consulting
Agreement, or relating to the business of CONSULTANT. This Consulting Agreement
supersedes all previous agreements between CONSULTANT and COMPANY.
18. Applicable Law
This Consulting Agreement is executed pursuant to and shall be interpreted and
governed for all purposes by the laws of the State of Florida. If any provision
of this Consulting Agreement is declared void, such provision shall be deemed
severed from this Consulting Agreement, which shall otherwise remain in full
force and effect.
20. The COMPANY has the full legal right and power and all authority and
approval required to enter into, execute and deliver this Agreement and to
perform fully the obligations hereunder including approval by the Board of
Directors of the COMPANY. This Agreement has been duly executed and delivered
and is the valid and binding obligation of the COMPANY enforceable in accordance
with its terms, except as may be limited by bankruptcy, moratorium, insolvency,
or other similar laws generally affecting the enforcement of creditors' rights.
The execution and delivery of this Agreement and the other agreements
contemplated hereunder, and the consummation of the transactions contemplated
hereby and thereby, and the performance by the COMPANY of this Agreement, in
accordance with their respective terms and conditions, will not:
(a) require the approval or consent of any foreign, federal, state, county,
local, or other governmental or regulatory body or the approval or consent of
any other person;
(b) conflict with or result in any breach or violation of any of the terms and
conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default under any order, judgment, or decree applicable to the
COMPANY, or any instrument, contract, or other agreement to which the COMPANY is
a party or by or to which the COMPANY is bound or subject; or
(c) result in the creation of any lien or other encumbrance on the assets or
properties of the COMPANY.
21. Arbitration
The CONSULTANT acknowledges and agrees that any controversy or claim arising out
of or relating to this investment, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Consulting Agreement.
CONSULTANT COMPANY
Xxxx Xxxxxxxxx Xxxxx Biometry, Inc.
_________________________________ ________________________________
By: By:
