Exhibit 10.1
Consulting Agreement
This CONSULTING AGREEMENT is made effective the 4th day of December, 2003 by and
between Xxxxx Xxxxxx, with offices at 00 Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx,
Xxxxxx ("Consultant") and Maximum Awards, Inc. a Nevada Corporation (the
"Company"), with its principal offices at 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxx, XX 00000
WHEREAS, Consultant has experience in corporate finance, management, mergers and
acquisitions: and ,
WHEREAS, the Company desires to employ Consultant, to provide advice concerning
mergers and acquisitions, corporate finance, day-to-day management, guidance
with respect to general business decisions, and other duties commonly performed
by the Consultant of a Corporation.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Consultant agree as follows:
1. Engagement
The Company hereby engages Xxxxx Xxxxxx as Consultant, to provide the Company
with advice and leadership as provided herein effective the date hereof and
continuing through the Engagement Period (as defined below).
2. Scope of Services
The services to be provided by Consultant under this Agreement shall be all
those necessary or proper to supervise the Company's management personnel and,
as needed, to evaluate and advise on transactions between the Company and third
parties. Specifically excluded from the scope of this agreement are any services
related to the Company's efforts to raise capital.
3. Term of Engagement
This Agreement shall have an initial term of three months (3) months.
Thereafter, this Agreement will automatically be extended on a month to month
basis unless Consultant or the Company shall serve written notice on the other
party terminating the Agreement (the "Engagement Period"); provided, however,
that Consultant and the Company shall agree in writing as to Consultant's
continuing compensation for the Management term following the initial term.
Notice to terminate shall be in writing and shall be delivered at least ten (10)
days prior to the end of the Engagement Period, as extended, as provided herein.
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December 4, 2003
4. Duties of Consultant
Consultant shall devote that amount of time as Consultant deems necessary to
fulfilling his obligations under as set forth herein. The Company understands
that Consultant serves as an officer and/or director for other companies which
require some of Consultant's professional time, but which do not conflict with
Consultant's obligations hereunder. Consultant agrees that he will at all times,
faithfully and to the best of their experiences, abilities, and talents, perform
all the duties required of them under this Agreement.
5. Compensation
Compensation to Consultant for services provided pursuant to this Agreement
shall consist of 1,100,000 shares of the Company's common stock issued pursuant
to the registration statement referred in paragraph 6 below.
6. Registration of Company Shares
The Company will register any securities referred to in paragraph 5 in
connection with the Services with the Securities and Exchange Commission (the
"Commission") on a registration statement on Form S-8 or other applicable
registration statement within three (3) months of the effective date of the
Company's registration statement Form 10-SB. Any Option Shares issued prior to
registration will be done so only in reliance on exemptions from registration
provided by Section 4(2) of the Securities Act of 1933 (the "Act"), Regulation D
of the Act, and applicable state securities laws. Such issuance shall be in
reliance on representations and warranties of Advisor set forth herein, and
updated upon written request by the Company.
7. Place of Services
The services provided by Consultant hereunder will be performed from the
Consultants offices, except as otherwise mutually agreed in writing between
Consultant and the Company.
8. Status
The Company will not be responsible for payment of all federal, state, and local
taxes on compensation paid under this Agreement, including income and social
security taxes, unemployment insurance, and any other taxes as may be required.
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December 4, 2003
9. Termination
(A) Death. In the event of Consultant's death, except for the Life
Insurance, this Agreement and all rights and obligations hereunder shall
immediately be terminated.
(B) Termination for Cause. The Company may, at its option, terminate this
Agreement by giving written notice of termination to Consultant without
prejudice to any other remedy to which the Company may be entitled either
at law, in equity, if Consultant:
(i) Willfully breaches or neglects the duties that he is required to
perform under the terms of this Agreement; or
(ii) Fails to promptly comply with and carry out all directives of the
Company's management not otherwise in conflict or banned by the terms
hereof, in which case, the terms hereof shall prevail; or
(iii) Is convicted of committing any dishonest or unlawful act.
(C) Termination Other Than For Cause. This Agreement shall terminate
immediately on the occurrence of any one of the following events:
(i) The occurrence of circumstances, in the judgment of the Company's
management, that make it impracticable for the Company to continue its
present line(s) of business; or
(ii) The decision of and upon notice by Consultant to voluntarily
terminate this Agreement; or
(iii) The loss by Consultant of legal capacity; or
(iv) If the Company makes a general assignment for the benefit of
creditors, or institutes, or has instituted against it any bankruptcy
proceeding for reorganization for rearrangement of its financial
affairs, or has a receiver of its assets or property appointed because
of insolvency, or otherwise becomes insolvent or
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December 4, 2004
unable to timely satisfy all obligations in the ordinary course of
business.
(D) Effect of Termination on Compensation. In the event of Termination
Other Than For Cause prior to the completion of the Engagement Period,
Consultant shall be entitled to a lump sum payment equal to the balance of
all compensation due to Consultant under this Agreement.
10. Representations and Warranties of the Company
The Company represents and warrants to Consultant that:
(A) Limited Liability Corporate Existence. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of
the State of Nevada, with power to own property and carry on its business
as it is now being conducted.
(B) No Conflict. This Agreement has been duly executed by the Company and
the execution and performance of this Agreement will not violate, or result
in a breach of, or constitute a default in any agreement, instrument,
judgment, decree or order to which the Company is a party or to which the
Company is subject, nor will such execution and performance constitute a
violation or conflict of any fiduciary duty to which the Company is
subject.
(C) Full Disclosure. The information concerning the Company provided to
Consultant pursuant to this Agreement is, to the best of the Company's
knowledge and belief, complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
(D) Date of Representations and Warranties. Each of the representations and
warranties of the Company set forth in this Agreement is true and correct
at and as of the date of execution of this Agreement.
11. Indemnification
The Company and Consultant each agree to indemnify, defend and hold each other
harmless from and against all demands, claims, actions, losses, damages,
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liabilities, costs and expenses, including without limitation, interest,
penalties and attorneys' fees and expenses asserted against or imposed or
incurred by either party by reason of or resulting from a breach of any
representation, warranty, covenant, condition, or agreement of the other party
to this Agreement.
The Company further agrees to indemnify defend and hold Consultant harmless from
and against all demands, claims, actions, losses, damages, liabilities, costs
and expenses, including without limitation, interest, penalties and attorneys'
fees and expenses asserted against or imposed or incurred by Consultant arising
from Consultant's fulfillment of his duties as the Consultant to the maximum
extent permitted by the Nevada Revised Statutes.
In addition to the foregoing indemnity, the Company agrees to indemnify and hold
harmless Consultant, and each other person controlling Consultant or any of its
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party"), within the meaning of either Section 15 of the Act, or Section 20 of
the Securities Exchange Act of 0000, (xxx "Xxxxxxxx Xxx") from and against any
losses, claims, damages and liabilities (or actions in respect thereof), joint
or several, which are related to or arise out of or are based upon any untrue or
alleged untrue statement of material fact or any omission or alleged omission of
material fact required to be stated or necessary to make other statements, in
light of the circumstances in which they are made, not misleading contained in
any document, report or material provided to and relied upon by Consultant to
prepare any registration statement, prospectus, prospectus, application of any
kind or other materials or reports filed by the Company with any regulatory
agency.
12. Miscellaneous
(A) Subsequent Events. Consultant and the Company each agree to notify the
other party if, subsequent to the date of this Agreement, either party
incurs obligations which could compromise their efforts and obligations
under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any time and in
any manner only by an instrument in writing executed by the parties hereto.
(C) Further Actions and Assurances. At any time and from time to time, each
party agrees, at its or their expense, to take actions and to execute and
deliver documents a may be reasonably necessary to effectuate the purposes
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December 4, 2004
of this Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply with any
of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed. The failure of any
party to this Agreement to enforce at any time any of the provisions of
this Agreement shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to enforce each
and every such provision. No waiver of any breach of or non-compliance with
this Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.
(E) Assignment. Neither the Company nor Consultant shall assign their
rights or obligations under the Agreement without the prior written consent
of the other.
(F) Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly given
when delivered in person to an officer of the other party, when deposited
in the United States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph company for
transmittal, or when sent by facsimile transmission charges prepared,
provided that the communication is addressed:
(1) In the case of the Company:
00 Xxxx Xxxxxx Xxxxxx,
Xxxxx 000,
Xxxx, XX 00000
Xxxxxx Xxxxxx of America.
(2) In the case of Consultant:
Xxxxx Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxxxx
Xxxxxxx, X0X 0X0
or to such other person or address designated by the Company or Consultant
to receive notice.
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December 4, 2004
(G) Headings. The section and subsection headings in this agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(H) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(I) Governing Law. This Agreement was negotiated and is being contracted
for in the State of California, and shall be governed by the laws of the
State of California, notwithstanding any conflict-of-law provision to the
contrary.
(J) Binding Effect. This Agreement shall be binding upon the parties hereto
and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
(K) Entire Agreement. This Agreement contains the entire agreement between
the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject
matter of this Agreement. No oral understandings, statements, promises, or
inducements contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express or implied,
other than as set forth herein, have been made by any party.
(L) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(M) Facsimile Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile of similar instantaneous
electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of
any party hereto, all parties agree to execute an original of this
Agreement as well as any facsimile, telecopy or other reproduction hereof.
(N) Termination of Any Prior Agreements. Effective the date hereof, all
prior rights of Consultant relating to the accrual or payment of any form
of compensation or other benefits from the Company based upon any
agreements other than this Agreement, whether written or oral, entered into
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December 4, 2004
prior to the date hereof, are hereby terminated.
(O) Consolidation or Merger. Subject to the provisions hereof, in the event
of a sale of the stock, or substantially all of the stock, of the Company,
or consolidation or merger of the Company with or into another corporation
or entity, or the sale of substantially all of the operating assets of the
Company to another corporation, entity or individual, the Company may
assign its rights and obligations under this Agreement to its
successor-in-interest and such successor-in-interest shall be deemed to
have acquired all rights and assumed all obligations of the Company
hereunder; provided, however, that in no event shall the duties and
services of Consultant provided for herein, or the responsibilities,
authority or powers commensurate therewith, change in any material respect
as a result of such sale of stock, consolidation, merger or sale of assets.
(P) Time is of the Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first written above.
"Consultant"
Xxxxx Xxxxxx.
"Company"
Maximum Awards Inc.
a Nevada Corporation
Title: President
