CONSULTING AGREEMENT
THIS
AGREEMENT is dated the 25th day of August, 2010.
BETWEEN:
Amazon Goldsands Ltd., with an
address at Xxxxx Xxxxxxx 0000, Xxxxx Xxxxx, Xxxx, Xxxx
(the
“Company”)
AND:
The Xxxxxxxx Group, Inc., with
an address at 0 Xxxxxxxx Xxxxx, Xxxx in the Hills, IL 60156
(the
“Contractor”)
WHEREAS:
A.
The
Company desires to retain the Contractor to provide the Company with the
services consisting of the Basic Services as detailed in Schedule A hereto
(the “Services”) in regards to the Company’s management and
operations;
B.
The
Contractor has agreed to provide the Services to the Company on the terms and
conditions of this Agreement.
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants
and promises set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by each, the parties
hereto agree as follows:
ARTICLE 1
APPOINTMENT
AND AUTHORITY OF CONTRACTOR
1.1
Appointment of
Contractor. The Company hereby appoints the Contractor to
perform the Services for the benefit of the Company as hereinafter set forth,
and the Company hereby authorizes the Contractor to exercise such powers as
provided under this Agreement. The Contractor accepts such
appointment on the terms and conditions herein set forth.
1.2
Performance of
Services. The Services hereunder have been and shall continue
to be provided on the basis of the following terms and conditions:
(a)
the
Contractor shall report directly to the Chief Executive Officer and board of
directors of the Company;
(b)
the
Contractor shall faithfully, honestly and diligently serve the Company and
cooperate with the Company and utilize maximum professional skill and care to
ensure that the Services rendered hereunder are to the satisfaction of the
Company, acting reasonably, and the Contractor shall provide any other services
not specifically mentioned herein, but which by reason of the Contractor's
capability the Contractor knows or ought to know to be necessary to ensure that
the best interests of the Company are maintained; and
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(c)
the
Company shall report the results of the Contractor's duties hereunder as may be
requested by the Company from time to time.
1.3
Authority of
Contractor. The Contractor shall have no right or authority,
express or implied, to commit or otherwise obligate the Company in any manner
whatsoever except to the extent specifically provided herein or specifically
authorized in writing by the Company. The Contractor is not entitled
to subcontract the Services to any subcontractor.
1.4
Independent
Contractor. In performing the Services, the Contractor shall
be an independent contractor and not an employee or agent of the Company, except
that the Contractor shall be the agent of the Company solely in circumstances
where the Contractor must be the agent to carry out its obligations as set forth
in this Agreement. Nothing in this Agreement shall be deemed to
require the Contractor to provide the Services exclusively to the Company and
the Contractor shall not be entitled to the fringe benefits provided by the
Company to its employees.
ARTICLE 2
CONTRACTOR'S
AGREEMENTS
2.1
Expense
Statements. The Contractor may incur expenses in the name of
the Company as agreed in advance in writing by the Company, provided that such
expenses relate solely to the carrying out of the Services. The
Contractor will immediately forward all invoices for expenses incurred on behalf
of and in the name of the Company and the Company agrees to pay said invoices
directly on a timely basis. The Contractor agrees to obtain approval
from the Company in writing for any individual expense of $1,500 or greater or
any aggregate expense in excess of $1,500 incurred in any given month by the
Contractor in connection with the carrying out of the Services.
2.2
Regulatory
Compliance. The Contractor agrees to comply with all
applicable securities legislation and regulatory policies in relation to
providing the Services, including but not limited to United States securities
laws (in particular, Regulation FD) and the policies of the United States
Securities and Exchange Commission.
2.3
Prohibition Against Xxxxxxx
Xxxxxxx. The Contractor hereby acknowledges that the
Contractor is aware, and further agrees that the Contractor will advise those of
its directors, officers, employees and agents who may have access to
Confidential Information, that United States securities laws prohibit any person
who has material, non-public information about a company from purchasing or
selling securities of such a company or from communicating such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities.
ARTICLE 3
COMPANY'S
AGREEMENTS
3.1
Remuneration. As
compensation for the Services rendered, the Contractor shall receive a monthly
management fee of: US$2,500 payable in
equal monthly instalments on the 15th day of the month to which payment of such
management fee relates.
3.2
Information. Subject
to the terms of this Agreement, including without limitation Article 5
hereof, and provided that the Contractor agrees that it will not disclose any
material non-public information to any person or entity, the Company shall make
available to the Contractor such information and data and shall permit the
Contractor to have access to such documents as are reasonably necessary to
enable it to perform the Services under this Agreement. The Company
also agrees that it will act reasonably and promptly in reviewing materials
submitted to it from time to time by the Contractor and inform the Contractor of
any material inaccuracies or omissions in such materials.
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ARTICLE 4
DURATION,
TERMINATION AND DEFAULT
4.1
Effective
Date. This Agreement shall be effective as of July 24, 2010 (the
“Effective Date”), and shall continue to October 24, 2010 (the
“Term”) or until earlier terminated pursuant to the terms of this
Agreement.
4.2
Termination. Contractor
may terminate this Agreement immediately for any reason upon delivery of written
notice to the Company. Without prejudicing any other rights that the
Company may have hereunder or at law or in equity, the Company may terminate
this Agreement immediately upon delivery of written notice to the Contractor
if:
(a) the
Contractor breaches section 2.2 of this Agreement;
(b)
the
Contractor breaches any other material term of this Agreement and such breach is
not cured to the reasonable satisfaction of the Company within thirty (30) days
after written notice describing the breach in reasonable detail is delivered to
the Contractor;
(c)
the
Contractor is unable or unwilling to perform the Services under this Agreement,
or
(d)
the
Contractor commits fraud, serious neglect or misconduct in the discharge of the
Services.
4.3
Duties Upon
Termination. Upon termination of this Agreement for any
reason, the Contractor shall upon receipt of all sums due and owing, promptly
deliver the following in accordance with the directions of the
Company:
(a)
a final
accounting, reflecting the balance of expenses incurred on behalf of the Company
as of the date of termination; and
(b)
all
documents pertaining to the Company or this Agreement, including but not limited
to, all books of account, correspondence and contracts, provided that the
Contractor shall be entitled thereafter to inspect, examine and copy all of the
documents which it delivers in accordance with this provision at all reasonable
times upon ten (10) days’ notice to the Company.
4.4
Compensation of Contractor
on Termination. Upon termination of this Agreement, the
Contractor shall be entitled to receive as its full and sole compensation in
discharge of obligations of the Company to the Contractor under this Agreement
all sums due and payable under this Agreement to the date of termination and the
Contractor shall have no right to receive any further payments; provided,
however, that the Company shall have the right to offset against any payment
owing to the Contractor under this Agreement any damages, liabilities, costs or
expenses suffered by the Company by reason of the fraud, negligence or wilful
act of the Contractor, to the extent such right has not been waived by the
Company.
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ARTICLE 5
CONFIDENTIALITY
5.1
Maintenance of Confidential
Information. The Contractor acknowledges that in the course of
its appointment hereunder the Contractor will, either directly or indirectly,
have access to and be entrusted with information (whether oral, written or by
inspection) relating to the Company or its respective affiliates, associates or
customers (the “Confidential Information”). For the purposes of this
Agreement, “Confidential Information” includes, without limitation, any and all
Developments (as defined herein), trade secrets, inventions, innovations,
techniques, processes, formulas, drawings, designs, products, systems,
creations, improvements, documentation, data, specifications, technical reports,
customer lists, supplier lists, distributor lists, distribution channels and
methods, retailer lists, reseller lists, employee information, financial
information, sales or marketing plans, competitive analysis reports and any
other thing or information whatsoever, whether copyrightable or uncopyrightable
or patentable or unpatentable. The Contractor acknowledges that the
Confidential Information constitutes a proprietary right, which the Company is
entitled to protect. Accordingly the Contractor covenants and agrees
that during the Term and thereafter until such time as all the Confidential
Information becomes publicly known and made generally available through no
action or inaction of the Contractor, the Contractor will keep in strict
confidence the Confidential Information and shall not, without prior written
consent of the Company in each instance, disclose, use or otherwise disseminate
the Confidential Information, directly or indirectly, to any third
party.
5.2
Exceptions. The
general prohibition contained in Section 5.1 against the unauthorized
disclosure, use or dissemination of the Confidential Information shall not apply
in respect of any Confidential Information that:
(a)
is
available to the public generally in the form disclosed;
(b)
becomes
part of the public domain through no fault of the Contractor;
(c)
is
already in the lawful possession of the Contractor at the time of receipt of the
Confidential Information; or
(d)
is
compelled by applicable law to be disclosed, provided that the Contractor gives
the Company prompt written notice of such requirement prior to such disclosure
and provides assistance in obtaining an order protecting the Confidential
Information from public disclosure.
5.3
Developments. Any
information, data, work product or any other thing or documentation whatsoever
which the Contractor, either by itself or in conjunction with any third party,
conceives, makes, develops, acquires or acquires knowledge of during the
Contractor’s appointment with the Company or which the Contractor, either by
itself or in conjunction with any third party, shall conceive, make, develop,
acquire or acquire knowledge of (collectively the “Developments”) during the
Term or at any time thereafter during which the Contractor is engaged by the
Company that is related to the business of designing and supplying security
systems for the cargo transit industry shall automatically form part of the
Confidential Information and shall become and remain the sole and exclusive
property of the Company. Accordingly, the Contractor does hereby
irrevocably, exclusively and absolutely assign, transfer and convey to the
Company in perpetuity all worldwide right, title and interest in and to any and
all Developments and other rights of whatsoever nature and kind in or arising
from or pertaining to all such Developments created or produced by the
Contractor during the course of performing this Agreement, including, without
limitation, the right to effect any registration in the world to protect the
foregoing rights. The Company shall have the sole, absolute and
unlimited right throughout the world, therefore, to protect the Developments by
patent, copyright, industrial design, trademark or otherwise and to make, have
made, use, reconstruct, repair, modify, reproduce, publish, distribute and sell
the Developments, in whole or in part, or combine the Developments with any
other matter, or not use the Developments at all, as the Company sees
fit.
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5.4
Protection of
Developments. The Contractor does hereby agree that, both
before and after the termination of this Agreement, the Contractor shall perform
such further acts and execute and deliver such further instruments, writings,
documents and assurances (including, without limitation, specific assignments
and other documentation which may be required anywhere in the world to register
evidence of ownership of the rights assigned pursuant hereto) as the Company
shall reasonably require in order to give full effect to the true intent and
purpose of the assignment made under Section 5.3 hereof. If the
Company is for any reason unable, after reasonable effort, to secure execution
by the Contractor on documents needed to effect any registration or to apply for
or prosecute any right or protection relating to the Developments, the
Contractor hereby designates and appoints the Company and its duly authorized
officers and agents as the Contractor’s agent and attorney to act for and in the
Contractor’s behalf and stead to execute and file any such document and do all
other lawfully permitted acts necessary or advisable in the opinion of the
Company to effect such registration or to apply for or prosecute such right or
protection, with the same legal force and effect as if executed by the
Contractor.
5.5
Remedies. The
parties to this Agreement recognize that any violation or threatened violation
by the Contractor of any of the provisions contained in this Article 5 will
result in immediate and irreparable damage to the Company and that the Company
could not adequately be compensated for such damage by monetary award
alone. Accordingly, the Contractor agrees that in the event of any
such violation or threatened violation, the Company shall, in addition to any
other remedies available to the Company at law or in equity, be entitled as a
matter of right to apply to such relief by way of restraining order, temporary
or permanent injunction and to such other relief as any court of competent
jurisdiction may deem just and proper.
5.6
Reasonable
Restrictions. The Contractor agrees that all restrictions in
this Article 5 are reasonable and valid, and all defenses to the strict
enforcement thereof by the Company are hereby waived by the
Contractor.
ARTICLE 6
DEVOTION
TO CONTRACT
6.1
Devotion to
Contract. During the term of this Agreement, the Contractor
shall devote sufficient time, attention, and ability to the business of the
Company, and to any associated company, as is reasonably necessary for the
proper performance of the Services pursuant to this
Agreement. Nothing contained herein shall be deemed to require the
Contractor to devote its exclusive time, attention and ability to the business
of the Company. During the term of this Agreement, the Contractor
shall, and shall cause each of its agents assigned to performance of the
Services on behalf of the Contractor, to:
(a)
at all
times perform the Services faithfully, diligently, to the best of its abilities
and in the best interests of the Company;
(b)
devote
such of its time, labor and attention to the business of the Company as is
necessary for the proper performance of the Services hereunder; and
(c)
refrain
from acting in any manner contrary to the best interests of the Company or
contrary to the duties of the Contractor as contemplated
herein.
6.2
Other
Activities. The Contractor shall not be precluded from acting
in a function similar to that contemplated under this Agreement for any other
person, firm or company.
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ARTICLE 7
MISCELLANEOUS
7.1
Notices. All
notices required or allowed to be given under this Agreement shall be made
either personally by delivery to or by facsimile transmission to the address as
hereinafter set forth or to such other address as may be designated from time to
time by such party in writing:
(a)
in the
case of the Company, to:
Xxxxx
Xxxxxxx 0000, Xxxxx Xxxxx, Xxxx, Xxxx
Attention:
Xxxxxx Xxx Xxxxxxx
(b)
and in
the case of the Contractor to:
0
Xxxxxxxx Xxxxx
Xxxx xx
xxx Xxxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
7.2
Change of
Address. Any party may, from time to time, change its address
for service hereunder by written notice to the other party in the manner
aforesaid.
7.3
Entire
Agreement. As of from the date hereof, any and all previous
agreements, written or oral between the parties hereto or on their behalf
relating to the appointment of the Contractor by the Company are null and
void. The parties hereto agree that they have expressed herein their
entire understanding and agreement concerning the subject matter of this
Agreement and it is expressly agreed that no implied covenant, condition, term
or reservation or prior representation or warranty shall be read into this
Agreement relating to or concerning the subject matter hereof or any matter or
operation provided for herein.
7.4
Further
Assurances. Each party hereto will promptly and duly execute
and deliver to the other party such further documents and assurances and take
such further action as such other party may from time to time reasonably request
in order to more effectively carry out the intent and purpose of this Agreement
and to establish and protect the rights and remedies created or intended to be
created hereby.
7.5
Waiver. No
provision hereof shall be deemed waived and no breach excused, unless such
waiver or consent excusing the breach is made in writing and signed by the party
to be charged with such waiver or consent. A waiver by a party of any
provision of this Agreement shall not be construed as a waiver of a further
breach of the same provision.
7.6
Amendments in
Writing. No amendment, modification or rescission of this
Agreement shall be effective unless set forth in writing and signed by the
parties hereto.
7.7 Assignment. Except
as herein expressly provided, the respective rights and obligations of the
Contractor and the Company under this Agreement shall not be assignable by
either party without the written consent of the other party and shall, subject
to the foregoing, enure to the benefit of and be binding upon the Contractor and
the Company and their permitted successors or assigns. Nothing herein
expressed or implied is intended to confer on any person other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
7.8
Severability. In
the event that any provision contained in this Agreement shall be declared
invalid, illegal or unenforceable by a court or other lawful authority of
competent jurisdiction, such provision shall be deemed not to affect or impair
the validity or enforceability of any other provision of this Agreement, which
shall continue to have full force and effect.
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7.9
Headings. The
headings in this Agreement are inserted for convenience of reference only and
shall not affect the construction or interpretation of this
Agreement.
7.10
Number and
Gender. Wherever the singular or masculine or neuter is used
in this Agreement, the same shall be construed as meaning the plural or feminine
or a body politic or corporate and vice versa where the context so
requires.
7.11
Time. Time
shall be of the essence of this Agreement. In the event that any day on or
before which any action is required to be taken hereunder is not a business day,
then such action shall be required to be taken at or before the requisite time
on the next succeeding day that is a business day. For the purposes
of this Agreement, “business day” means a day which is not Saturday or Sunday or
a statutory holiday.
7.12
Enurement. This
Agreement is intended to bind and enure to the benefit of the Company, its
successors and assigns, and the Contractor.
7.13 Counterparts. This
Agreement may be executed in several counterparts, each of which will be deemed
to be an original and all of which will together constitute one and the same
instrument.
7.14
Currency. Unless
otherwise provided, all dollar amounts referred to in this Agreement are in
lawful money of the United States of America.
7.15
Electronic
Means. Delivery of an executed copy of this Agreement by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy will be deemed to be execution and delivery
of this Agreement as of the effective date of this Agreement.
7.16 Proper Law. This
Agreement will be subject to and governed by the laws of the State of
Illinois.
[Signatures
Appear on the Following Page]
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
Per:
/s/ Xxxxxx Xxx
Xxxxxxx
Authorized Signatory
Name: Xxxxxx
Xxx Xxxxxxx
Title: Chief
Executive Officer
The
Xxxxxxxx Group, Inc.
Per:
/s/
Xxxx
Xxxxxxxx
Authorized Signatory
Name: Xxxx
Xxxxxxxx
Title: President
and CEO
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SCHEDULE A
It is
hereby also acknowledged and agreed that the Contractor will provide the
following specific consulting services to the Company as indicated below, or to
any of the Company’s respective subsidiaries, as the case may be, and as may be
determined by the Board of Directors, from time to time, in its sole and
absolute discretion, and in conjunction with the corporate development of the
Company’s various business interests subject, at all times, to the direction of
the Board of Directors
Services:
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§
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Create,
coordinate, and evaluate the financial programs of the Company to include
budgeting, tax planning and conservation of
assets.
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§
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Oversee
the approval and processing of expenditure documents, budgets, ledger, and
account maintenance and data entry.
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§
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Coordinate
the preparation of financial statements, financial reports, special
analyses, and information reports.
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§
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Develop
and implement finance, accounting, billing, and auditing
procedures.
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§
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Establish
and maintain appropriate internal control
safeguards.
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§
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Ensure
records systems are maintained in accordance with generally accepted
auditing standards.
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§
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Develop
and direct the implementation of strategic business and/or operational
plans, projects, programs, and
systems.
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§
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Analyze
cash flow, cost controls, and expenses to guide management. Analyze
financial statements to pinpoint potential weak
areas.
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§
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Establish
and implement short- and long-range goals, objectives, policies, and
operating procedures.
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§
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Serve
on planning and policy-making
committees.
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§
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Oversee
financial management of foreign operations to include developing financial
and budget policies and procedures.
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§
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Other
duties as assigned.
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A -
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