EXHIBIT 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of March 18th, 2005, by and between XXXXXXX XXXXXXX ("Consultant"), an
individual, and TRANSAX INTERNATIONAL LIMITED ("Company"), a public corporation
(OTCBB:TSNX).
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and the benefits that have and will inure to each of the parties
hereto, the parties hereto do agree as follows:
1. SERVICES. Subject to the terms and conditions of this Agreement,
Consultant agrees to perform for Company the following services:
A. Corporate planning, strategy and negotiations with potential
strategic business partners/alliances, mergers and acquisitions
and other general consulting needs as expressed by Company;
B. Identify and coordinate investor relations services;
C. Identify and organize strategic broker/dealers;
D. Provide business development and business solutions to assist in
increasing the services distribution of Company's products;
E. Periodic reporting as to developments concerning the general
financial markets and public securities markets and industry
which may be relevant or of interest or concern to the Client or
the Client's business;
F. Provide financial engineering services for the possible listing
of Company's common stock on a listed exchange.
Such services are hereinafter referred to as "Services." Company agrees
that Consultant shall have ready access to Company's staff and resources as
necessary to perform the Consultant's Services provided for by this Agreement.
Company agrees that the cost of legal, accounting, investor relations and
Director services are the responsibility of the Company and not of the
Consultant. Consultant and its members, principles, employees and agents are not
officers or directors of the Company. Consultant shall have no power to bind
Company to any contract or obligation or to transact any business in Company's
name or on behalf of Company in any manner. None of the Consultant's Services
include the raising of funds for the Company or any direct investor relations
services.
It is expressly understood and agreed by Company that, in reliance upon
Company's representations, warranties and covenants contained herein,
immediately upon execution and delivery of this Agreement by Company, Consultant
is setting aside and allocating for the benefit of Company valuable resources
(including, without limitation, capital and reservation of work schedules of
employees) required to fulfill Consultant's obligations described in Item 1,
above. In doing so, Consultant agrees to forebear from undertaking other
opportunities and commitments (that would result in enrichment to Consultant) in
order to be available to provide Company the services contemplated by this
Agreement.
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2. PERIOD OF PERFORMANCE. The Company shall hire Consultant for a
period of three (3) months commencing on the date hereof, unless earlier
terminated pursuant to the terms of this Agreement, see Item 6, below. The
Agreement may also be extended upon agreement by both parties.
3. EXCLUSIVITY, PERFORMANCE AND CONFIDENTIALITY. The services of
Consultant hereunder shall not be exclusive, and Consultant and its agents may
perform similar or different services for other persons or entities whether or
not they are competitors of Company. The Consultant agrees that it will, at all
times, faithfully and in a professional manner perform all of the duties that
may be reasonably required of the Consultant pursuant to the terms of this
Agreement. Consultant shall be required to expend only such time as is necessary
to service Company in a commercially reasonable manner. The Consultant does not
guarantee that its efforts will have any impact upon the Company's business or
that there will be any specific result or improvement from the Consultant's
efforts. Consultant acknowledges and agrees that confidential and valuable
information proprietary to Company and obtained during its engagement by the
Company, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Company, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential.
4. COMPENSATION FOR SERVICES. Company agrees to compensate Consultant
for Services in the amount of one hundred and fifty thousand (150,000) free
trading shares due on the date hereof. The Shares, when issued as directed by
Consultant, will be duly authorized, validly issued and outstanding, fully paid
and non-assessable, and will not be subject to any liens or encumbrances.
Securities shall be issued to Consultant in accordance with a mutually
acceptable plan of issuance as to relieve securities or Consultant from
restrictions upon transferability of shares in compliance with applicable
registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Company and Consultant and their advisors, Company agrees that, when received by
Consultant, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Company further acknowledges and agrees that said
consideration is earned by Consultant: (1) upon Company's execution and delivery
of the Agreement and prior to the provision of any service hereunder; (2) in
part, by reason of Consultant's agreement to make its resources available to
serve Company and as further described in the Preliminary Statement and
elsewhere herein; and (3) regardless of whether Company seeks to terminate this
Agreement prior to consultant's delivery of any services hereunder. If Company
takes any action to terminate this Agreement or to recover any consideration
paid or delivered by Company to Consultant other than by reason of Consultant's
gross negligence or willful misconduct, Consultant shall be entitled to all
available equitable remedies, consequential and incidental damages and
reasonable attorneys' fees and costs incurred as a result thereof, regardless of
whether suit is filed and regardless of whether Company or Consultant prevails
in any such suit.
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5. TERMINATION. For the duration of the Period of Performance, this
Agreement may be terminated by either party, who may cancel this Agreement upon
ten (10) days written notice in the event the other party violates any material
provision of this Agreement and fails to cure such violation within ten (10)
days of written notification of such violation from the other party. Such
cancellation shall not excuse the breach or non-performance by the other party
or relieve the breaching party of its obligation incurred prior to the date of
cancellation, including, without limitation, the obligation of Company to pay
the nonrefundable consideration described in Item 4, above. Effective as of the
date of cancellation, Consultant's right to receive compensation hereunder shall
cease (except to the extent, as of the cancellation date, that the Company owes
the Consultant consideration).
6. REPRESENTATIONS, WARRANTS AND COVENANTS. The Company represents,
warrants and covenants to the Consultant as follows:
a. The Company has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of this
Agreement by the Company and its delivery to the Consultant, and
the consummation by it of the transactions which are contemplated
herein have been duly approved and authorized by all necessary
action by the Company's Board of Directors and no further
authorization shall be necessary on the part of the Company for
the performance and consummation by the Company of the
transactions which are contemplated by this Agreement.
b. The business and operations of the Company have been and are
being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Company or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Company or cause an acceleration under any arrangement, agreement
or other instrument to which the Company is a party or by which
any of its assets are bound. The Company has performed in all
respects all of its obligations which are, as of the date of this
Agreement, required to be performed by it pursuant to the terms
of any such agreement, contract or commitment.
7. NOTICES. All notices, consents, changes of address and other
communications required or permitted to be made under the terms of this
Agreement shall be in writing and shall be (i) personally delivered by an agent
of the relevant party, or (ii) transmitted by postage prepaid, certified or
registered mail, or (iii) facsimile transmission with an original mailed by
first class mail, postage prepaid, addressed as follows:
TO COMPANY: TRANSAX INTERNATIONAL LTD
Irvine Spectrum Center
Suite 200 - 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX,00000
Fax: 000-000-0000
Attention: Xxxxxxx Xxxxxxx
TO CONSULTANT: 0000 Xxxxxxxx
Xxxxxxxx Xxxx
XX 00000
Fax: 000.000.0000
Attention: XXXXXXX XXXXXXX
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or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
8. WAIVER OF BREACH. The waiver by any party of a breach by another
party of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the breaching party. No waiver shall be valid
unless in writing and signed by the party sought to be bound.
9. ASSIGNMENT. Consultant acknowledges that the services to be rendered
by Consultant are unique and personal. Accordingly, Consultant may not assign
any of Consultant's rights or delegate any of Consultant's duties or obligations
under this Agreement, except to the extent amounts are payable to Consultant
hereunder after Consultant's death, in which case those benefits may be assigned
by will or the law of descent. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
Company and its successors and assigns.
10. SEVERABILITY. In the event that any of these provisions shall be
held to be invalid or unenforceable, the remaining provisions hereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. The parties in no way intend
to include a provision that contravenes public policy. Therefore, if any
provision of this Agreement is unlawful, against public policy, or otherwise
declared void or unenforceable, such provision shall be deemed excluded from
this Agreement, which shall in all other respects remain in effect.
11. ENTIRE AGREEMENT, MODIFICATION OR AMENDMENT. The parties hereby
agree that this Agreement contains the entire agreement and understanding by and
between the parties with respect to the subject matter hereof, and no
representations, promises, agreements, or understandings, written or oral,
relating to the subject matter hereof not contained herein shall be of any force
or effect. Consultant agrees that Consultant has actively participated in
negotiating the provisions contained in this Agreement, that these provisions
have been negotiated in good faith by all parties, and that the terms of this
Agreement should not be construed against either the Company or Consultant. This
Agreement may be amended only by written amendment signed by the parties.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument. Rebut
table proof of execution of this Agreement by any party may be made by
presentation of a copy of this Agreement bearing a facsimile or photostatic copy
of the signature of the party whose execution is sought to be proved, and such
copies shall be as valid as the originals and as admissible as evidence of proof
of the execution and terms and provisions hereof as the originals.
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13. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. ARBITRATION. Any and all disputes arising out of or relating to the
interpretation, application, formation, or the termination of this Contract
shall be subject to binding and final arbitration in Orange County, California,
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Any decision issued there from shall be binding upon the parties
and shall be enforceable as a judgment in any court of competent jurisdiction.
The prevailing party in such arbitration or other proceeding shall be entitled,
in addition to such other relief as many be granted, to a reasonable sum as and
for attorney's fees in such arbitration or other proceeding which may be
determined by the arbitrator or other officer in such proceeding. If collection
is required for any payment not made when due, the creditor shall collect
statutory interest and the cost of collection, including attorney's fees whether
or not court action is required for enforcement. The prevailing party in any
such proceeding shall also be entitled to reasonable attorneys' fees and costs
in connection all appeals of any judgment
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect to
Colordao rules of conflicts of law, and regardless of the place or places of its
physical execution and performance.
16. INDEPENDENT CONTRACTOR RELATIONSHIP. The parties hereto intend that
an independent contractor-owner relationship will be created by this Agreement.
Company is interested only in the result to be achieved, and the conduct and
control of the Services will lie solely with Consultant. Consultant is not to be
considered an agent or employee of Company for any purpose, and neither
Consultant nor his employees are entitled to any of the benefits that Company
may provide for its own employees. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee. It is understood that Company does not
agree to use Consultant exclusively. It is further understood that Consultant is
free to contract for similar or other services to be performed for other owners
while under this Agreement with Company.
17. PRELIMINARY STATEMENT. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above-written.
COMPANY CONSULTANT
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: CEO Title: Consultant
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