CONSULTING AGREEMENT
Exhibit
10.21
This
consulting agreement (this “Agreement”) is made the 15th
day of
July 2007 by and between Promotora Xxxxx Hermosa Corporation, (the “Company”),
and Xxxx Xxx, on (the “Consultant”).
RECITALS
WHEREAS,
the Company wishes to engage the Consultant with respect to certain aspects
of
its business;
WHEREAS,
the Consultant is willing to make available to the Company the consulting
services provided for in the Agreement as set forth below;
AGREEMENT
NOW
THEREFORE, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, the parties hereto agree as
follows:
1.
TERM
The
term
of this Agreement shall commence on the date hereof and end on July 15,
2008.
2.
CONSULTING SERVICES
(a)
Long
range corporate planning and business development, including but not limited
to
the development of corporate strategy, market direction and implantation of
business plans; Review and analysis of potential markets and customers in such
markets.
Prepare
and consult the company as to the penetration of the European Markets,
specifically German Construction Market, what will include but not be limited
to
seeking merger candidates, acquisition targets, development projects that would
fit the company business model. Review of operations and analysis of deviations
from the business model for such markets.
(b)
Compensation. In consideration of the consulting services set forth in paragraph
2 (a), and subject to the terms and conditions set forth herein the Company
hereby agrees to issue to Consultant 30,000 shares of the Company’s Common stock
(the “Shares”) and register such shares at the time of initial issuance, or
immediately thereafter, on Form S-8 under the Securities Act of
1933.
(c)
Issuance. Issuance and delivery of the Common Stock shall be within 45 days
of
the full reporting date of the company, at which time, the Company shall deliver
to the Consultant:
(i)
the
certificate or certificates evidencing the Shares to be issued to the Consultant
and the respective dates, registered in the name of the Consultant; and
(ii)evidence that the Shares have been registered on Form S-8 to be filed upon
issuance of the Shares to the Consultant, registering for resale
thereof.
(d)
Expenses.
During
the term of the Consultant’s engagement hereunder. The Consultant shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by
the Consultant in performing services hereunder, including all travel and living
expenses while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted for
in
accordance with the policies and procedures established by the Company, and
that
any expenses in excess of $100.00 have been pre-approved in writing by the
Company.
3.
CONFIDENTIAL INFORMATION
(a)
Confidential Information. In connection with the providing of Consulting
Services, hereunder, the Company may provide the Consultant with information
concerning the Company which the Company deems confidential (the “Confidential
Information”). The Consultant understands and agrees that any Confidential
Information disclosed pursuant to this Agreement is secret, proprietary and
of
great value to the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he will take
reasonable security
measures
to preserve and protect the secrecy of such Confidential Information, and to
hold such information in confidence and not to disclose such information, either
directly or indirectly to any person or entity during the term of this agreement
or any time following the expiration or termination hereof; provided, however,
that the Consultant may disclose the Confidential Information to an assistant
to
whom disclosure is
necessary
for the providing of services under this agreement.
(b)
Exclusions. For purposes of this paragraph 3, the term Confidential Information
shall not include Information which (i) becomes generally available to the
public other than as a result of a disclosure by the Consultant or his
assistants, agents or advisors, or (ii) becomes available on a non-confidential
basis to the Consultant from a source other than the Company or it’s
advisors,
provided
that such source is not known to the Consultant to be bound by a Confidentiality
agreement with or other obligation of secrecy to the Company or another party.
(c)
Government Order. Notwithstanding anything to the contrary in this Agreement,
the Consultant shall not be precluded from disclosing any of the Confidential
Information pursuant to a valid order of any governmental or regulatory
authority, or pursuant to the order of any court or arbitrator.
(d)
Injunctive Relief. The Consultant agrees that, since a violation of this
paragraph 3 would cause irreparable injury to the Company, and that there may
not be an adequate remedy at law for such violation, the Company shall have
the
right in addition to any other remedies available at law or in equity, to enjoin
the Consultant in a court of equity for violating the provisions of this
paragraph 3.
4.
REPRESENTATION AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to the Consultant that as of the date
hereof and as of the Closing Date (after giving effect to the transactions
contemplated hereby):
(a)
Existence and Authority. The Company is a corporation duly organized and validly
existing in good standing under the laws of its jurisdiction of incorporation
and has full power and authority to own its respective property, carry on its
respective business as no being conducted, and enter into and perform its
obligations under this Agreement and to issue and deliver the Shares to be
issued by it hereunder. The Company is duly qualified as a jurisdiction in
which
it is necessary to be so qualified to transact business as currently conducted.
This Agreement, has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and to general principals of equity.
(b)
Authorization and Validity of Shares. The Shares have been duly authorized
and
are validly issued and outstanding, fully paid and non-assessable and free
of
any preemptive rights. THE Shares are not subject to any lien, pledge, security
interest or other encumbrance.
(c)
Authorization of Agreement. The Company has taken all actions and obtains all
consents or approvals necessary to authorize it to enter into this Agreement.
(d)
No
Violation. Neither the execution or delivery of this Agreement, the issuance
or
delivery of Shares, the performance by the Company of its obligations under
this
Agreement, nor the consummation of the transactions contemplated hereby will
conflict with, violate, constitute a breach of or a default (with the passage
of
time or otherwise) under, require the consent or approval of or filing with
any
person (other than consent and approvals which have been obtained and filings
which have been made) under, or result in the imposition of a lien on or
securities interest in any properties or assets of the Company, pursuant to
the
charter or bylaws of the Company, any award of any arbitrator or any agreement
(including any agreement with stockholders), instruments, order, judgment,
decree, statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets is
subject.
(e)
Registration. The Shares have been, or will be upon the filing of an S-8
Registration Statement, registered pursuant to the Securities Act of 1933,
as
amended and all applicable state laws.
5.
FILINGS
The
Company shall furnish to the Consultant, promptly after the sending or filing
thereof, copies of all reports which the Company sends to its equity security
holders generally, and copies of all reports and registration statements which
the Company files with the Securities and Exchange Commission (the
“Commission”), any other securities exchange or the national Association of
Securities Dealers, Inc. (“NASD”)
6.
SUPPLYING INFORMATION
The
Company shall cooperate with the Consultant in supplying such publicity
available information as may be reasonably necessary for the Consultant to
complete and file any information reporting forms.
7.
INDEMNIFICATION
(a)
The
Company shall indemnify the Consultant from and against any and all expenses
(including attorneys’ fees), judgments, fines, claims, cause of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with such action,
suit
or proceeding if (i) the Consultant was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith and
in a
manner reasonably believed by the Consultant to be in or not opposed to the
interests of the Company, and with respect to any criminal action or proceeding,
had no reasonable cause or believe his conduct was unlawful. The termination
of
any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a
presumption that the Consultant did not act in good faith in or not opposed
to
the best interests of the Company, and, with respect to any criminal action
or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Notwithstanding the foregoing, the Company shall not indemnify the Consultant
with respect to nay claim, issue or matter as to which the consultant shall
have
been adjudged to be liable for gross negligence or willful misconduct in the
performance other duties pursuant to this Agreement unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjunction of liability, but in view of
all
the circumstances of the case, the Consultant is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper.
(b)
The
Consultant shall indemnify the Company from and against any and all expenses
(including attorney’s fees), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Company in connection with such action, suit
or
proceeding if (i) the Company was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services pursuant
to this Agreement, and (ii) the Consultant did not act in good faith and in
a
manner reasonably believed by the Consultant to be in or not opposed to the
interests of the Company, and with respect to any criminal action or proceeding,
did not reasonably believe his conduct was lawful. Notwithstanding the
foregoing, the Consultant shall not indemnify the Company with respect to any
claim, issue or matter as to which the Company shall have been adjudged to
be
liable for gross negligence or willful misconduct in connection with the
performance of the Consultant’s duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought
shall
determine upon application that, despite the adjunction of liability, in view
of
all circumstances of the case, the Company is fairly and reasonably entitled
to
indemnify for such expenses which such court shall deem proper.
8.
INDEPENDENT CONTRACTOR STATUS
It
is
expressly understood and agreed that this is a consulting agreement only and
does not constitute an employer-employee relationship. Accordingly, the
Consultant agrees that the consultant shall be solely responsible for payment
of
his own taxes or sums due to the federal, state, or local governments, overhead,
workmen’s compensation, fringe benefits, pension contributions and other
expenses. It is further understood and agreed that the Consultant is an
independent contractor and the company shall have no right to control the
activities of the Consultant other than during the express period of time in
which the Consultant is performing services hereunder, and that such services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the company. The
parties further acknowledge that the Company’s services hereunder are not
exclusive, but that the Consultant shall be performing services and undertaking
other responsibilities, for and with other entities or persons, which may
directly or indirectly compete with the Company. Accordingly, the services
of
the Consultant hereunder are on a part time basis only, and the Company shall
have no discretion, control of, or interest in, the Consultant’s services which
are not covered by the terms of the Agreement. The Company hereby waives any
conflict of interest which now exists or may hereafter arise with respect to
Consultant’s current employment and future employment.
9.
NOTICE
All
notices provided by this Agreement shall be in writing and shall be given by
facsimile transmission, overnight courier, by registered mail or by personal
delivery, by one party to the other, addressed to such other party at the
applicable address set forth below, or to such other address as may be given
for
such purpose by such other party by notice duly given hereunder. Notice shall
be
deemed properly given on the date of the delivery.
To
Consultant: Xxxx Xxx
0000
Xxxxxx Xxxx Xxx #000
Xxxxxxx,
XX. 00000
To
the
Company: 0000 X Xxxxxxxx Xx., Xxx 000
Xxxxxx,
XX. 00000
10.
MISCELLANEOUS
(a)
Waiver. Any term or provision of this Agreement may be waived at any time by
the
party entitled to the benefit thereof by a written instrument duly executed
by
such party.
(b)
Entire Agreement. This Agreement contains the entire understanding between
the
parties hereto with respect to the transactions contemplated hereby, and may
not
be amended, modified, or altered except by an instrument in writing signed
by
the party against whom such amendment, modification, or alteration is sought
to
be enforced. This Agreement supercedes and replaces all other agreements between
the parties with respect to any services to be performed by
the
Consultant of behalf of the Company.
(c)
Governing Law. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Florida.
(d)
Binding Effect. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
(e)
Construction. The captions and headings contained herein are inserted for
convenient reference only, are not a part hereof and the same shall not limit
or
construe the provisions to which they apply. Reference in this agreement to
“paragraphs” is to the paragraphs in this Agreement, unless otherwise
noted.
(f)
Expenses. Each party shall pay and be responsible for the cost and expanses,
including, without limitations, attorney’s fees, incurred by such party in
connection with negotiation, preparation and execution of this Agreement and
the
transactions contemplated hereby.
(g)
Assignment. No party hereto may assign any of its rights or delegate any of
its
obligations under this Agreement without the express written consent of the
other party hereto.
(h)
No
Rights to Others. Nothing herein contained or implied is intended or shall
be
construed to confer upon or give to any person, firm or corporation, other
than
the parties hereto.
(i)
Counterparts. This Agreement may be executed simultaneously in two counterparts,
each of which shall be deemed an original, but both of which together shall
constitute on and the same agreement, binding upon both parties hereto,
notwithstanding that both parties are not signatories to the original or the
same counterpart.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year
first above written.
PROMOTORA
XXXXX HERMOSA CORPORATION
By:
President
and CEO
Xxxx
Xxx
By:
