CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 17th day of June,
2005, between CIMBIX CORPORATION, a bulletin board public company ("CBXC"),
and XXXXXX XXXXXX ("KHANNA") a Consultant (collectively the "Parties"
and each individually a "Party").
RECITALS:
KHANNA is a consultant who desire to provide consulting services to CBXC;
and
CBXC desires to retain KHANNA as a business marketing and due diligence
consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each Party, the Parties, intending to be legally bound,
hereby agree as follows:
I. Recitals. The Parties agree that the foregoing recitals are true
and correct and are incorporated herein by reference.
II. Engagement. CBXC hereby engages KHANNA and CBXC hereby accepts
such engagement upon the terms and conditions set forth in this Agreement.
A. Duties: KHANNA is engaged by CBXC as a business marketing
and due diligence consultant, to represent CBXC and its business in
Canada; to assist CBXC in expanding its business operations in
"business consulting" services and trade. KHANNA will report
directly to the board of directors of CBXC. The term of this
Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and effect
for a term of twelve (12) months from the date thereof, and may be
renewed for successive periods of twelve (12) months thereafter by
the mutual written agreement of the Parties hereto made at least one
(1) month prior to the expiration of such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with
respect to the Parties' respective obligations under this
Agreement.
2. Amount of Fee: CBXC hereby agrees to issue to KHANNA,
and KHANNA agrees to accept from CBXC, three hundred fifty
thousand (350,000) shares of common stock of CBXC, which will
be registered by CBXC on a Registration Statement Form S-8
with the Securities and Exchange Commission.
3. Timing of Payment of Fee: CBXC shall pay and release
Shares to KHANNA upon satisfaction of performance from time to
time in stages commencing within thirty (30) days from filing
of the Registration Statement. Failure of CBXC to finally pay
any Shares within thirty (30) days after the applicable due
date shall be deemed a material breach of this Agreement,
justifying suspension of the performance of the Services
provided by KHANNA and will be sufficient cause for immediate
termination of this Agreement by KHANNA, and such breach will
cause this Agreement to be null and void.
D. Independent Contractors: In all matters relating to this
Agreement and otherwise, the Parties hereto shall be and act as
independent contractors, neither shall be the employee or agent of
the other, and each shall assume any and all liabilities for its own
acts. As a result of his independent contractor status, KHANNA, and
not CBXC, shall be responsible for any and all income taxes and any
and all other employment related taxes or assessments which may be
required of KHANNA in his jurisdiction. Neither Party shall have any
authority to create any obligations, express or implied, on behalf of
the other Party and neither Party shall have any authority to
represent the other Party as an employee or in any capacity other
than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement shall
be binding on the Parties hereto for the Term provided herein, unless
terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the Parties themselves, shall
be settled by binding arbitration in Washington and judgment upon the award
may be entered in any court having jurisdiction thereof. Nothing, however,
contained herein shall limit CBXC's rights to injunctive relief as set out
in Paragraph V of this Agreement. The prevailing Party in any litigation,
arbitration or mediation relating to collection of fees, or any other matter
under this Agreement, shall be entitled to recover all its costs, if any,
including without limitation, reasonable attorney's fees, from the other
Party for all matters, including, but no limited to, appeals.
V. Injunctive Relief: KHANNA agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate
and irreparable harm to CBXC and, in such event, an injunction restraining
KHANNA from such violation may be entered against KHANNA in addition to any
other relief available to CBXC.
VI. Representations and Warranties: KHANNA represents, warrants,
covenants and agrees that KHANNA has a right to enter into this Agreement;
that KHANNA is not a Party to any agreement or understanding, whether
written or oral, which would prohibit KHANNA's performance of his obligations
hereunder; and KHANNA is not in possession of any proprietary information
belonging to another Party which KHANNA is legally prohibited from using.
A breach of this Paragraph VI shall be ground for immediate termination of
this Agreement.
VII. Indemnification and Hold Harmless Clause: KHANNA agrees to
indemnify and hold CBXC and its affiliates, control persons, directors,
officers, employees and agents (each an "Indemnified Person") harmless from
and against all losses, claims, damages, liabilities, costs or expenses,
including those resulting from any threatened or pending investigation,
action, proceeding or dispute whether or not CBXC or any such other
Indemnified Person is a party to such investigation, action, proceeding or
dispute, arising out of CBXC's entering into or performing services under
this Agreement, or arising out of any matter referred to in this Agreement.
This indemnity shall also include CBXC's and/or any such other Indemnified
Person's reasonable attorneys' and accountants' fees and out-of-pocket
expenses incurred in, and the cost of CBXC's personnel whose time is spent
in connection with, such investigations, actions, proceedings or disputes
which fees, expenses and costs shall be periodically reimbursed to CBXC
and/or to any such other Indemnified Person by KHANNA as they are incurred;
provided, however, that the indemnity herein set forth shall not apply to
an Indemnified Person where a court of competent jurisdiction has made a
final determination that such Indemnified Person acted in a grossly negligent
manner or engaged in willful misconduct in the performance of the services
hereunder which gave rise to the loss, claim, damage, liability, cost or
expense sought to be recovered hereunder (but pending any such final
determination the indemnification and reimbursement provisions hereinabove
set forth shall apply and KHANNA shall perform its obligations hereunder to
reimburse CBXC and/or each such other Indemnified Person periodically for
its, his or their fees, expenses and costs as they are incurred). KHANNA
also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to KHANNA for or in
connection with any act or omission to act as a result of its engagement
under this Agreement except for any such liability for losses, claims,
damages, liabilities or expenses incurred by KHANNA is found in a final
determination by a court of competent jurisdiction to have resulted from
such Indemnified Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable
to CBXC or any such other Indemnified Person or insufficient to hold it
harmless, then KHANNA shall contribute to the amount paid or payable by
CBXC or any such other Indemnified Person as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by KHANNA and its shareholders on the
one hand and CBXC or any such other Indemnified Person on the other hand,
but also the relative fault of KHANNA and CBXC or any such other
Indemnified Person, as well as any relevant equitable considerations;
provided that in no event will the aggregate contribution by CBXC and
any such other Indemnified Person hereunder exceed the amount of fees
actually received by CBXC pursuant to this Agreement. The reimbursement,
indemnity and contribution obligations of KHANNA hereinabove set forth
shall be in addition to any liability which KHANNA may otherwise have and
these obligations and the other provisions hereinabove set forth shall be
binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of KHANNA, CBXC and any other Indemnified
Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue
indefinitely thereafter.
VIII. Notice: Any notice given or required to be given under this
Agreement shall be in writing and service thereof shall be sufficient if
sent be hand or by telex or telegram, facsimile transmission or other
similar means of communication if confirmed by mail, or by certified mail,
return-receipt requested, with postage prepaid, directly to the Parties'
respective addresses herein above set forth. Each Party may, from time to
time, by like written notice, designate a different address to which notice
should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive
the termination of this Agreement, for whatever reason, and shall be binding
on the Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon
the respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either Party without the prior consent
of the other Party.
XII. Choice of Law: This Agreement is made in Washington, and all
questions related to the execution, construction, validity, interpretation
and performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of Washington.
XIII. Venue: The state of Washington shall be proper venue for any and
all litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of
this Agreement.
XV. Severability: In the event that any term, covenant, or condition
of this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to Parties
or circumstances other than those as to which it is held invalid or non
enforceable, shall not be affected thereby; and each term, covenant, or
condition of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this
Agreement or any provision hereof shall be valid unless in writing duly
signed by the Parties hereto, which writing specifically refers to this
Agreement and states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter, and
any and all prior representations and agreements with respect to such subject
matter, if any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are
not intended to expand or restrict the scope or substance of the provisions
of this Agreement. Whenever used herein, the singular shall include the
plural, the plural shall include the singular, and pronouns shall be read
as masculine, feminine, or neuter as the context requires.
ACCEPTED:
CONSULTANT CIMBIX CORPORATION
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Consultant President/Chief Executive Officer
