CONFIDENTIAL INITIAL:
January 2002
COMPANY________
CONSULTANT_____
AGREEMENT TO ENGAGE PROSPERITUS CAPITAL CORP.
AS BUSINESS CONSULTANT FOR
XXXXXXXXXX.XXX , INC.
This Consulting Agreement (the "Agreement") is entered into this 2nd day of
April 2002 by and between Xxxxxxxxxx.Xxx , Inc, a Nevada Corporation (The
"Company"), and Prosperitus Capital Corp. a Nevada Corporation, hereinafter PCC
( "Consultant").
RECITALSRECITALS
The Consultant, through the expenditure of considerable money, time and
effort, have created and developed, a system for providing financial services
(the "Services") to private and public companies. The Company desires to obtain
the assistance of the Consultant and on the basis of financial statements,
initial reports submitted by The Company, and the representations that The
Company has made to the Consultant describing The Company and its principals,
the present and proposed business activities of The Company, its operations,
financial condition and capital structure, and various agreements and documents
related thereto, the Consultant are willing to provide such assistance, with
respect to the Services.
CONFIDENTIAL INITIAL:
December 21, 1999
COMPANY_____
CONSULTANT_____
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the sufficiency of which is hereby acknowledged by each of the
parties, The Company and the Consultant hereby agree as follows:
I. ENGAGEMENT
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The Company hereby engages and retains the Consultant as Business
Consultant for and on behalf of The Company to perform the Services (as that
term is hereinafter defined) and the Consultant hereby accepts such appointment
on the terms and subject to the conditions hereinafter set forth and agree to
use their best efforts in providing such Services. Company and Consultant agree
that this is a non-binding agreement with respect to the cash only , unless a
funding source acceptable to Company, and documented in Appendix A, that
Consultant introduces to Company is utilized.
II. INDEPENDENT CONTRACTOR
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A. The Consultant shall be, and in all respects be deemed to be, an
independent contractor in the performance of his duties hereunder, any law of
any jurisdiction to the contrary notwithstanding.
B. The Consultant shall not, by reason of this Agreement or the performance
of the Services, be or be deemed to be, an employee, agent, partner, co-venturer
or controlling person of The Company, and the Consultant shall have no power to
enter into any agreement on behalf of or otherwise bind The Company.
CONFIDENTIAL INITIAL:
January 2002
COMPANY________
CONSULTANT_____
C. The Consultant shall not have or be deemed to have, fiduciary
obligations or duties to The Company and shall be free to pursue, conduct and
carry on for his own account (or for the account of others) such activities,
employment's, ventures, businesses and other pursuits as the Consultant in its
sole, absolute and unfettered discretion, may elect. THE CONSULTANT IS NOT
REGISTERED BROKER DEALER OR ASSOCIATED PERSON OF SUCH, AND IS NOT PURPORTING TO
ACT IN ANY CAPACITY REQUIRING REGISTRATION AS A BROKER DEALER OR ASSOCIATED
PERSON.
D. Consultant will NOT directly or indirectly promote or maintain a
market for the registrant's securities. Specifically the Consultant will NOT
negotiate the capital raising transactions, will NOT solicit any purchasers of
our common stock. Will NOT hold any funds or securities, will NOT participate in
the establishment of a purchase price of our securities and will NOT prepare or
offer any materials for any capital raising transaction.
E. Notwithstanding the above, no activity, employment, venture, business or
other pursuit of the Consultant during the term of this agreement shall conflict
with the Consultant's obligations under this Agreement or be adverse to The
Company's interests during the term of this Agreement.
III. SERVICES
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The Consultant agrees to provide the following, hereafter collectively
referred to as the "Services":
A. Advise The Company and/or any of its affiliates, associates, in its
efforts in obtaining capital in an amount of $ 2,000,000. US in any form or
structure acceptable to The Company with terms from an accepted
entity(s)introduced by the Consultant to The Company.
B. Advise The Company and/or any of its affiliates, associates, in attaining
public listed status in the US through a merger or other vehicle/action
acceptable to management.
C. Best Efforts. The Consultant shall devote such time and best effort to
the affairs of The Company as is reasonable and adequate to render the
consulting services contemplated by this agreement.
IV. EXPENSES
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Both The Company and the Consultant agree that:
A. Both the Consultant and The Company shall be responsible for their own
normal and reasonable out-of-pocket expenses
V. COMPENSATION
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If, at any time during the term of this Agreement and for a period of two years
(2) following the termination of this agreement, The Company obtains capital,
acquires assets or any property, capital, financial assistance (i.e.; line of
credit, bridge financing, IPO financing, reverse merger, debt or equity
financing) of $2,000,000 or greater, under terms acceptable to The Company, from
any of the entities in Appendix A, or their affiliations or persons, The Company
agrees to:
1)
a) Pay the Consultant a finder's fee of: "Cash" payment $200,000.00 payable
at closing from the closing escrow per Consultant wires instructions, or other
equivalent payment, if acceptable to the Consultant.
b) Issue Eighty-Three Thousand Three Hundred Thirty-Three (83,333) shares of
common stock* (the"Stock") 144 issued monthly until the agreement is cancelled
or Twelve months, whichever occurs first.
CONFIDENTIAL INITIAL:
January 2002
COMPANY_________
CONSULTANT_____
c) If required by applicable law, or at the election of Consultant, the
finder's fee will be deemed to have been earned by and be paid in a timely
manner to a placement agent selected exclusively by Consultant.
*Once the common stock has been registered, or, after the one year period
applicable under Rule 144, whichever occurs first, the Company at its sole cost
and expense have its attorney issue an opinion letter for removal of the legend
and release all stock transfer instructions on the common stock, except as maybe
required under Rule 144. The Consultant agrees that the resale of said shares
shall be limited to 15% per day of the average of the previous three months
daily volume.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
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A. EXECUTION. The execution, delivery and performance of this Agreement, in
the time and manner herein specified, will not conflict with, result in a breach
of, or constitute a default under any existing agreement, indenture, or other
instrument to which either The Company or the Consultant is a party or by which
either entity may be bound or affected.
B. NON-DISCLOSURE AND NON-CIRCUMVENTION. The Company hereby irrevocably
agrees not to circumvent, avoid, bypass, or obviate, directly or indirectly, the
intent of this Agreement, to avoid payment of fees in any transaction with any
corporation, partnership or individual, introduced by the Consultant to The
Company, in connection with any project, any loans or collateral, or other
transaction involving any products, transfers or services, or addition, renewal
extension, rollover, amendment, renegotiations, new contracts, parallel
contracts/agreements, or third party assignments thereof. The Company
understands and acknowledges that its obligations under this Non-Disclosure and
Non-Circumvention Agreement are for the benefit of the Consultant and its
successors and assigns, and that the Consultant's failure to delay in exercising
any right, power and privilege hereunder shall not operate as a waiver thereof,
nor shall any single or partial exercise thereof or the exercise of any other
right, power or privilege hereunder operate as a waiver. The obligations of this
provision shall remain in effect for a period of two (2) years.
C. CORPORATE AUTHORITY. Both The Company and the Consultant have
full legal authority to enter into this Agreement and to perform the same in the
time and manner contemplated.
1. The individuals whose signatures appear below are authorized to sign this
Agreement on behalf of their respective corporations.
2. When issued, the Shares of The Company's Common Stock shall be duly and
validly issued, fully paid and non-assessable.
VII. TERM AND TERMINATION
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1. A. TERM:This Agreement shall be initially for a period of 360 days.
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Any additional closings / advances or transactions involving equity / debt /
strategic partnerships made between the parties introduced through this
agreement for a period of Two (2) year's from this date shall provide for the
same terms and conditions regarding compensation as identified in section V of
this agreement. At the conclusion of 2 year's from the signing of this agreement
no additional payments will be made to the Consultant unless a new agreement is
entered into.
B. In no event shall any termination be effective until the expiration of at
least sixty (60) days after the signing of this agreement.
C. After three hundred and sixty (360) days from the date hereof, The
Company shall have the right to terminate CONSULTANT engagement hereunder by
furnishing CONSULTANT with written notice of such termination.
D. However, no termination of this Agreement by The Company shall in any way
affect the right of CONSULTANT to receive as a result of its Services rendered
and transactions consummated its compensation as described in Section V of this
agreement on any transactions which result in The Company receiving financing or
other benefits hereunder.
VIII CONFIDENTIAL DATA
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A. The Consultant shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining to the
business and affairs of The Company, obtained by the Consultant as a result of
its engagement hereunder, unless authorized, in writing by The Company.
B The Company shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining to the
business and affairs of the Consultant, obtained by The Company as a result of
its engagement hereunder, unless authorized, in writing, by the Consultant.
C. The Consultant shall not be required in the performance of its duties to
divulge to The Company or any officer, director, agent or employee of The
Company, any secret or confidential information, knowledge, or data concerning
any other person, firm or entity (including, but not limited to, any such
persons, firm or entity which may be a competitor or potential competitor of The
Company) which the Consultant may have or be able to obtain otherwise than as a
result of the relationship established by this Agreement.
IX OTHER MATERIAL TERMS AND CONDITIONS:
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A. INDEMNIFICATION. The Company agrees to indemnify and hold Consultant,
its attorneys And all of its officers, directors, employees, affiliates and
agents harmless from and against any And all manner of actions, causes of
action, claims, demands, costs, damages, liabilities, losses, Obligations and
expenses (including actual attorney's fees) arising or resulting from or related
to Consultant's performance of the services to be provided hereunder, unless
they are based upon State or Federal Securities law violations,
misrepresentations, and breaches of this Agreement by Consultant or negligence
or willful misconduct of Consultant. Consultant agrees to Indemnify and hold The
Company, its attorneys and all of its officers, directors, and employees
Affiliates and agents harmless from and against any and all manner of actions,
causes of Action, claims, demands, costs, damages, liabilities, losses,
obligations and expenses (including Actual attorney's fees) arising or resulting
from or related to Consultant's performance of the Services to be provided
hereunder, unless they are based upon State or Federal securities law
Violations, misrepresentations or breaches of this Agreement by the Company.
B. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to time, at
the request of others, execute, acknowledge and deliver to the other party any
and all further instruments that may be reasonably required to give full effect
and force to the provisions of this Agreement.
C. ENTIRE AGREEMENT. Each of the parties hereby covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and Agreements, both written or oral, of the parties hereby with
respect to the subject matter of this Agreement, and that there exists no oral
agreement or understanding expressed or implied liability, whereby the absolute,
final and unconditional character and nature of this Agreement shall be in any
way invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
D. LAWS OF THE STATE OF NORTH CAROLINA. This Agreement shall be
deemed to be made in, governed by and Interpreted under and construed in all
respects in accordance with the laws of the State of
North Carolina, irrespective of the country or place of domicile or residence
of either party. In the event of controversy arising out of the
interpretation, construction, performance or breach of this Agreement, the
parties hereby agree and consent to the jurisdiction and venue of the District
or County Court of Mecklenburg County, North Carolina; or the United States
District Court for the District of North Carolina, and further agree and consent
that personal service or process in any such action or Proceeding outside of the
State of North Carolina and Mecklenburg County shall be tantamount to service in
person within Mecklenburg County, North Carolina and shall confer personal
jurisdiction and venue upon either of said Courts.
E. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assigns Of the parties hereto and of the indemnified
parties hereunder and their successors and assigns and Representatives, and the
obligations and liabilities assumed in this Agreement by the parties hereto
Shall be binding upon their respective successors and assigns provided that the
rights and Obligations of the Company under this Agreement may not be assigned
or delegated without the Prior written consent of the Consultant, and any such
purported assignment shall be null and void. Notwithstanding the foregoing, the
Consultant may not assign or delegate its obligations and Rights under this
Agreement without consent of the Company, in The Company's sole discretion.
F. ORIGINALS. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed an original and constitute one and the
same agreement. Facsimile copies with signatures shall be given the same legal
effect as an original.
G. ADDRESSES OF PARTIES. Each party shall at all times keep the other
informed of its principal place of business if different from that stated
herein, and shall promptly notify the other of any change, giving the address of
the new place of business or residence.
H. NOTICES. All notices that are required to be or may be sent pursuant to
the provision of this Agreement shall be sent by certified mail, return receipt
requested, or by overnight package delivery service to each of the parties at
the address appearing herein, and shall count from the date of mailing or the
validated air xxxx.
I. MODIFICATION AND WAIVER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing and
executed with the same formality as this Agreement. The failure of any party to
insist upon strict performance of any of the provisions of this Agreement shall
not be construed as a waiver of any subsequent default of the same or similar
nature or of any other nature.
J. ARBITRATION: Any controversy or claim arising out of or relating in any
matter to this consulting agreement, or alleged breach thereof by either party,
shall be settled by arbitration administered by the American Arbitration
Association under its existing Commercial Arbitration Rules. All hearings as to
any such controversy or claim shall be held in Mecklenburg county , North
Carolina. The prevailing party shall be entitled to an award of reasonable
attorney's fees by the Arbritator(s) and it may be included in any award
rendered. Judgement on the award rendered by the Arbiterator(s) may be entered
in any State Court within the State of North Carolina having jurisdiction
thereof or in the United Stated district Court for the District of North
Carolina. The parties also agree that the AAA optional rules for Emergency
Measures of Protection shall apply to the proceedings.
Solely by virtue of their respective execution of this Agreement and in
consideration for the mutual covenants of each other, The Company and the
Consultant hereby agree, consent and acknowledge that, in the event of the
failure by The Company to pay the consideration to the Consultant or in the
event of a breach of any other material term, the Consultant will be without
adequate remedy-at-law and shall therefore, be entitled to immediately redress
any material breach of this Agreement by temporary or permanent injunctive or
mandatory relief obtained in an action or proceeding instituted in the District
or County Court of Mecklenburg County, State of North Carolina or the United
States District Court for the District of North Carolina without the necessity
of proving damages and without prejudice to any other remedies which the
Consultant may have at law or in equity.
XATTACHMENTS:
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A. See attached " Appendix A " which will become a part of and attached
hereto.
APPROVED AND AGREED:
Consultant:
Prosperitus Capital Corp.
0000 X Xxxxxxxx Xxxx. Xxxxx 0000
Xxxxx , XX 00000 XXX
000-000-0000 Fax305-377-0111
__________________________/_________
By Xxxxxxx X. Xxxxxxxx.
Xxxxxxxxxx.Xxx, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
000-000-0000 Fax 000-000-0000
_________________________/____________
By ,
It's Chairman
