Exhibit 10.2
THIS AGREEMENT is made the 20th day of August 2001 (the "Effective Date")
BETWEEN:
(1) X.X. XXXXXXXX (ROW), LTD., a company incorporated under the laws of
Anguilla with its registered office situated at The Hansa Bank Building
- 1st Floor, The Valley, Anguilla, British West Indies (the
"Consultant"),
AND
(2) XXXXX.XXX, INC., a company incorporated under the laws of Florida with
its office situated at Suite C200 - 4223 Glencoe Avenue, Marina del
Xxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America
AND
(3) X. X. XXXXXXXX, businessman of #203 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx,
XX0X 0XX (the "Executive"),
WHEREAS:
A. the Consultant has the ability to provide, outside the United Kingdom,
consultancy services to the Company, which services the Company
requires in connection with the developing, establishing, financing and
day-to-day operations of an Internet Bingo company operating worldwide
to provide both free and Pay for Play Bingo over the Internet and
throughout the world (the "Business");
B. the Consultant and the Company have agreed that the Consultant shall
provide services as an independent contractor on the terms and
conditions set out hereinbelow;
C. the Executive is employed by the Consultant and is willing and able to
provide the services on behalf of the Consultant by acting as the
interim President and CEO of Xxxxx.Xxx, Inc.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the sum of ten
dollars in lawful money of the United States of America (US$10.00) paid by each
of the parties hereto to the other, the respective covenants herein contained
and other good and valuable consideration, the receipt and sufficiency whereof
is hereby expressly acknowledged, the parties HERETO AGREE AS FOLLOWS:-
1. 1. INTERPRETATION
1.1 References in this Agreement to clauses, sub-clauses and
schedules are to those in this Agreement and the schedules to
this Agreement shall be deemed to be a part of this Agreement.
1.2 References to any provision of a statute or regulation shall
be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time.
1.3 Clause headings in this Agreement are for ease of reference
only and shall not affect the interpretation of this
Agreement.
1.4 Words importing one gender shall be construed as importing any
other gender and words importing the singular shall be
construed as importing the plural and vice versa.
1.5 References to persons shall include bodies corporate and vice
versa.
2. CONSULTING & EXECUTIVE SERVICES
2.1 With effect from the Effective Date, the Company engages the
Consultant to provide services, outside the United Kingdom, in
connection with the operation of the Business and the
Consultant hereby accepts the engagement (the "Consultancy").
2.2 With effect from the Effective Date, the Consultant releases
the Executive from his employment to the extent necessary to
give effect to the terms of this Agreement provided that any
agreement made between the Company and the Executive for his
services does not conflict with his obligations at any time
and from time to time to the Consultant (the Release").
3. AGENTS AND ADVICE
The Consultant shall be at liberty in the performance of its duties and
in the exercise of any of the powers and discretions vested in it
hereunder to employ and pay an agent to perform or assist in performing
any or all of the services, duties and obligations required to be
performed hereunder by the Consultant. Further the Consultant may act
or rely upon the opinion or advice of or any information obtained
without verifying or otherwise enquiring as to the accuracy of any
information or assertions provided or from any broker, lawyer, valuer,
surveyor, auctioneer or other expert whether reporting to the Company
or to the Consultant or not and the Consultant, absent gross negligence
or willful default, shall not be responsible for any loss occasioned by
its so acting.
4. RELATIONSHIP
4.1 The Consultant shall be an independent contractor and nothing
herein shall be construed as creating a partnership,
co-venture or employment relationship between the Consultant
and the Company.
4.2 Neither the Consultant nor the Executive shall have the
authority to obligate or bind the Company to any obligations
or agreements in excess of US$25,000 without the prior
authorization of the Board of Directors of the Company and,
without limiting the generality of the foregoing:
4.2.1 they shall not hold themselves out as having any
right, power or authority to create any contract or
obligation, either express or implied, on behalf of,
in the name of, or binding upon the Company save and
except those obligations falling within the normal
course of obligations of a President and CEO of an
organization;
4.2.2 they shall not make any representation or warranty on
behalf of the Company save and except those
obligations falling within the normal course of
obligations of a President and CEO of an
organization; and
4.2.3 they are not authorized to accept service of process
for the Company.
4.3 The Consultant and the Executive shall accept any reasonable
directions issued by the Company in respect of the Business
and pertaining to goals to be attained and results to be
achieved during the currency of this Agreement.
4.4 For the avoidance of doubt, none of the parties hereto intends
to create a partnership, joint venture or to assume
partnership liability or responsibility by entering into this
Agreement, rather it is the intent of the parties hereto that
the rights and obligations of the parties hereto be several
and not joint or joint and several.
4.5 The parties agree that the Executive is not an employee of the
Company and, as
such, save as required by law, there will be no deductions for
any statutory withholdings. The Consultant will defend,
indemnify and save harmless the Company from and against any
liability that the Company may incur to any authority for
source deductions, goods and services tax, provincial sales
tax and any other remittance obligations arising with respect
to payments under this Agreement.
5. DURATION
5.1 This Agreement shall commence on the Effective Date and remain
in full force and effect until the earlier of the first
anniversary of the Effective Date or the date this Agreement
is terminated pursuant to clause 9 hereof (the "Termination
Date").
5.2 Unless this Agreement has been terminated pursuant to clause 9
hereof, upon the Termination Date the Consultant shall have
the option to renew, by giving three (3) months notice in
writing to the Company, this Agreement for a further term of
up to one (1) year upon substantively the same terms as then
pertain.
6. COMPENSATION
In consideration of the Consultancy and the Release, the Consultant
shall be entitled to receive from the Company for each calendar month
or part thereof during the duration of the agreement the sum of twenty
thousand dollars in lawful money of the United States of America
(US$20,000) payable monthly in arrears in accordance with the
provisions set out below or as may be agreed in writing from time to
time by the parties hereto.
7. COSTS AND EXPENSES
The Company shall reimburse the Consultant and/or the Executive for all
out of pocket expenses reasonably incurred during the Consultancy
including, without limiting the generality of the foregoing, airfares,
accommodations, and vehicle expenses, provided that the Consultant
and/or the Executive shall provide the Company with such vouchers or
other evidence of actual payment of the said expenses as the Company
may reasonably require.
8. CONFIDENTIALITY
8.1 For the purposes of this Agreement, "Confidential Information"
means all confidential or proprietary facts, data, techniques,
materials and other information relating to the Business of
the Company, which may before or after the date of this
Agreement be disclosed or delivered to the Consultant or the
Executive by the Company or which may otherwise come within
the knowledge of the Consultant or the Executive or which may
be developed by the Consultant or the Executive in the course
of providing the services or from any other Confidential
Information. Confidential Information does not include:
(i) any information that is presently in the public
domain;
(ii) any information that subsequently becomes part of the
public domain through no fault of the Consultant or
the Executive;
(iii) any information obtained by the Consultant or the
Executive from a third party with a valid right to
disclose it, provided that said third party is not
under a confidentiality obligation to the Company; or
(iv) any information that was independently developed by
the Consultant or the Executive or was otherwise in
the Consultant's or the Executive's lawful possession
prior to receipt from the Company, other than through
prior disclosure by the Company, as evidenced by
their business records.
8.2 The Consultant and the Executive acknowledge that the
Confidential Information consists entirely of information and
knowledge that is the exclusive property of the Company or
persons from whom the Company has obtained its rights. They
will treat the Confidential Information in strict confidence
and will not disclose or permit the disclosure of the
Confidential Information unless otherwise required by law or
by a regulatory authority having jurisdiction over the
Company, or except as previously approved in writing by the
Company. They will protect such Confidential Information from
disclosure by exercising a standard of care as may reasonably
be expected to preserve its secret and confidential nature.
The Consultant and Executive acknowledge and agree that
nothing contained in this Agreement will be construed as an
assignment to the Consultant or the Executive of any right,
title or interest in the Confidential Information. All right,
title and interest relating to the Confidential Information is
expressly reserved by the Company. All documents containing
Confidential Information are the property of the Company.
Without limiting the generality of the foregoing, the
Consultant and the Executive hereby transfer to the Company
the property rights in all documents that now or hereafter may
contain the Confidential Information.
8.3 The Consultant and the Executive will not use the Confidential
Information for any purpose other than as may reasonably be
required in order to provide the services.
8.4 The Consultant and the Executive will, if required by the
Company, execute an agreement whereby they agree to disclose
to the Company all works, discoveries, inventions,
developments, productions, processes, improvements and work
products, including, but not limited to, documents, written
materials, programs, designs, discs and tapes resulting from,
derived from or otherwise related to the provision of the
services or the Confidential Information.
9. TERMINATION
9.1 The Executive shall not terminate this Agreement unless he has
the prior written approval of the Consultant.
9.2 Any of the parties hereto may terminate this Agreement,
without prejudice to its other remedies, forthwith by giving
thirty (30) days' notice in writing to the other parties if
any other party either:
9.2.1 commits a material breach of the provisions of this
Agreement provided that if the breach is capable of
remedy then notice shall only be given if the party
in breach shall not have remedied the same within
thirty (30) days of having been given notice in
writing specifying the breach and requiring it to be
remedied; or
9.2.2 acts or omits to act, or any of its directors,
officers, employees or agents act or omit to act, in
a manner which shall, in the opinion of giving
notice, in any way prejudice the interests of the
party giving notice or bring the name of that party
giving notice into disrepute; or
9.2.3 is unable to pay its debts or enters into compulsory
or voluntary liquidation (other than for the purpose
of amalgamation or reconstruction and the resulting
company agrees to be bound by and assume the
obligations of the relevant party under this
Agreement) or compounds with or convenes a meeting of
its creditors or has a receiver or manager or an
administrator or administrative receiver appointed of
its assets or ceases for any reason to carry on
business or takes or suffers any similar action
which, in the opinion of the party giving notice,
means that the other may be unable to pay its debts.
9.3 Termination of this Agreement for whatever reason shall not
affect or prejudice the rights of the parties arising in any
way out of this Agreement as at the date of
termination and in particular, but without limitation, the
right to recover damages from the other.
9.4 All provisions of this Agreement which are expressed to
operate or survive in the event of termination of this
Agreement shall remain in full force and effect after such
termination.
10. INDEMNITY
10.1 Subject to the constating documents of the Company and all
applicable laws, and with the exception of matters covered by
clause 4.5 of this Agreement, the Company hereby agrees to
indemnify and keep indemnified the Consultant (together with
its directors, officers, employees and agents) from and
against:-
10.1.1 any and all demands, claims, liabilities, losses,
damages, costs, legal costs, professional and other
expenses of any nature whatsoever including all
interest and penalties, incurred or suffered by the
Consultant or the Executive in connection with the
Business and all or any breaches by the Consultant or
the Executive of the provisions of this Agreement
(including all or any act, neglect or default of the
Consultant's directors, officers, employees and
agents); or
10.1.2 all actions, suits and proceedings which may be
commenced, taken or made against the Consultant or
the Executive or which may be incurred or which may
arise directly or indirectly by reason of the
provision by the Consultant or the Executive of all
or any of the services under this Agreement or by
reason of any act done and/or omitted to be done in
relation thereto or attempting to enforce the
Consultant's rights under this indemnity, except
insofar as any such claims arise from any breach of
this Agreement by the Consultant,
so long as the Consultant or the Executive (as applicable)
acted honestly and in good faith with a view to the best
interests of the Company and, in the case of a criminal or
administrative action or proceeding that is enforced by a
monetary penalty, the Consultant or the Executive (as
applicable) had reasonable grounds for believing that their
conduct was lawful.
10.2 All sums payable under clause 6 of this Agreement shall be
payable by the Company immediately on demand by the Consultant
in full without any deduction, withholding, counterclaim or
set-off and if any such deduction or withholding is made, or
any tax, duty or levy of any nature whatsoever, except taxes
imposed on the Consultant and measured by the income of the
Consultant, is required to be paid on the sum due, the Company
shall immediately pay to the Consultant such additional amount
as will result in the payment to and retention by the
Consultant of the full amount which would have been received
and retained by the Consultant but for such deduction or
withholding or the imposition of any such tax, duty or levy.
11. ASSIGNMENT AND DELEGATION
11.1 The provisions of this Agreement shall be binding on and enure
to the benefit of the successors and assigns of each party
hereto provided that either party may not, and may not agree
to, assign, transfer, charge or otherwise dispose of or
subcontract any of its rights or obligations under this
Agreement without the prior written consent of the other
parties.
11.2 Neither the Consultant nor the Company shall be permitted to
delegate any of their duties or obligations arising under this
Agreement otherwise than may be expressly agreed in writing
between the Consultant nor the Company.
12. FORCE MAJEURE
12.1 None of the parties shall be in breach of the provisions of
this Agreement if there is any failure of performance by it of
its obligations under this Agreement occasioned by any act of
God, fire, act of local, national or supranational authority
or government or state, war, civil commotion, embargo, strike,
lock-out or other cause beyond the control of either party.
12.2 If any of the parties is unable to perform its duties and
obligations under this Agreement as a direct result of the
effect of one or more of such causes, such party shall give
written notice to the others of such inability stating the
cause in question, without delay. The operation of this
Agreement (but not the provisions relating to confidentiality
and the restrictive obligations of the parties) shall be
suspended during the period in which the cause continues to
have effect. Forthwith upon the cause ceasing to have effect,
the party relying upon it shall give written notice thereof to
the others.
12.3 If the cause continues to have effect for a period of more
than sixty (60) days, the parties not claiming relief under
this clause shall have the right to terminate this Agreement
forthwith upon giving written notice of such termination to
the other parties.
13. ILLEGALITY AND SEVERABILITY
If any provision of this Agreement shall become or be declared illegal,
invalid or unenforceable, in whole or in part, for any reason
whatsoever by any competent court, tribunal or authority in Anguilla,
such provision or part thereof shall be divisible from this Agreement
and shall be deemed to be deleted from this Agreement in so far as the
continued operation of this Agreement is concerned provided always
that, if such deletion substantially affects or alters the commercial
basis of this Agreement, the parties shall negotiate in good faith to
amend and modify the provisions of this Agreement as may be necessary
or desirable in the circumstances.
14. NO WAIVER
No failure or delay on the part of either of the parties to exercise
any right or remedy under this Agreement shall be construed or operate
as a waiver thereof, nor shall any single or partial exercise of any
right or remedy preclude the further exercise of such right or remedy
as the case may be.
15. ANNOUNCEMENTS
No public announcement shall be made in respect of the subject matter
of this Agreement without the prior written approval of the Consultant
and provided always that the Consultant agrees to the form and content
of any such announcement in writing.
16. NOTICES
16.1 Any notices or other communication given or made under this
Agreement shall be in writing and shall be deemed to have been
duly given if delivered by hand or by registered post as
follows:
If to the Consultant or to the Executive to:
X.X. Xxxxxxxx (Row) Ltd.
XX Xxx 000
The Valley
TV1 02P
Anguilla
British West Indies
Fax: 000 000 0000
Attention: Xx Xxxxxx X. Xxxxxx
If to the Company:
Suite C200 - 0000 Xxxxxxx Xxxxxx
Marina del Xxx
Xxxxxxxxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 000 000 0000
Attention: Mr X.X. Xxxxxxxx
16.2 In the event of any postal or other strike or industrial
action affecting postal communications in or between Anguilla
and the United States of America notices shall be given
personally or by facsimile.
16.3 Any such notice or other documents shall be deemed to have
been received by the addressee five (5) working days following
the date of dispatch if the notice or other document is sent
by registered post or on the next working day after delivery
if sent by hand or by facsimile.
17. AMENDMENTS
This Agreement may only be amended by written agreement signed by all
parties.
18. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of Florida and the parties hereto submit to the jurisdiction
of the courts of Florida.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with
respect to the matters covered in it and no other or prior promises,
representations, agreements, negotiations or discussions, oral or
written, made by either party or its employees, officers or agents
shall be valid or binding.
20. COUNTERPARTS
This Agreement may be executed in separate counterparts, which together
shall be construed as a single instrument.
IN WITNESS whereof the parties or their respective duly authorised
representatives have executed this Agreement as of the day and year first before
written.
(SIGNATURE PAGE FOLLOWS)
Signed by Xxxxxx X. Xxxxxx, Director )
for and on behalf of )
X.X. Xxxxxxxx (Row) Ltd. )
in the presence of:- )
)
)
"Xxxxxxxxx Xxxxxxx" ) "Xxxxxx Xxxxxx"
------------------------------------ ) ---------------------------
Witness
Signed by Xxxxx Xxxxx, Director )
for and on behalf of )
XXXXX.XXX, Inc. in the presence of:- )
)
)
"Xxxxx Xxxxxxxxx" ) "Xxxxx Xxxxx"
------------------------------------ ) ---------------------------
Witness
Signed by )
X.X. Xxxxxxxx )
In the presence of:- )
)
)
"Xxxxx Xxxxxxxxx" ) "X.X. Xxxxxxxx"
------------------------------------ ) ---------------------------
Witness
