EXHIBIT 10.5
Business Development Agreement
Xxx Xxx
0000 Xxxxxxx 000, Xxxxxxxx, XX 00000
This agreement (this "Agreement") is made this 4th day of February, 2004,
between Siteworks, Building & Development Co., an OTCBB public company ("SWKJ"),
having a principal place of business located at 0000 X Xxxxx Xxxxxx, Xxxxx
Xxxxxxx and [Xxx Xxx Xx.], having a principal residence at 0000 xxxxxxx 000,
Xxxxxxxx, XX 00000 North Carolina collectively the "Parties" and each
individually a "Party").
RECITALS:
XXX XXX XX is a consulting firm whose principal place of business is located in
North Carolina and
SWKJ desires to retain XXX XXX XX as a business development and marketing
consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged
by each Party, the Parties, intending to be legally bound, hereby agree as
follows:
I. Recitals. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement. SWKJ hereby engages XXX XXX XX and XXX XXX XX hereby
accepts such engagement upon the terms and conditions set forth in this
Agreement.
A. Duties: XXX XXX XX is engaged by SWKJ as a business
development and marketing consultant, to represent SWKJ and
its business in the United States and internationally
(Thailand) ; to assist SWKJ in expanding its business
operations construction and development " services and trade.
XXX XXX XX will report directly to the Chief Executive Officer
("CEO") of SWKJ. The term of this Agreement begins
immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and
effect for a term of six (6) months from the date hereof, and
may be renewed for successive periods of six (6) months
thereafter by the mutual written agreement of the Parties
hereto made at least one (1) month prior to the expiration of
such term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with
respect to the Parties' respective obligations under
this Agreement.
2. Amount of Fee: SWKJ hereby agrees to issue to XXX XXX
XX, and XXX XXX XX agrees to accept from SWKJ, five
million (5,000,000) shares of common stock of SWKJ,
as discussed as payment in full for services
rendered.
3. Timing of Payment of Fee: Any and all fees due to XXX
XXX XX under this Agreement shall be paid upon
completion of the work.
D. Expense Reimbursement: SWKJ shall reimburse XXX XXX XX for
all reasonable expenses incurred. Expenses and materials
reimbursements shall be made promptly upon submission of an
expense report to SWKJ.
E. Independent Contractors: In all matters relating to this
Agreement and otherwise, the Parties hereto shall be and
act as independent contractors, neither shall be the
employee or agent of the other, and each shall assume any
and all liabilities for its own acts. As a result of his
independent contractor status, XXX XXX XX, and not SWKJ,
shall be responsible for any and all income taxes and any
and all other employment related taxes or assessments which
may be required of XXX XXX XX in his jurisdiction. Neither
Party shall have any authority to create any obligations,
express or implied, on behalf of the other Party and
neither Party shall have any authority to represent the
other Party as an employee or in any capacity other than as
herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement
shall be binding on the Parties hereto for the Term provided herein,
unless terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the Parties
themselves, shall be settled by binding arbitration in Florida and
judgment upon the award may be entered in any court having
jurisdiction thereof. Nothing, however, contained herein shall
limit SWKJ's rights to injunctive relief as set out in Paragraph V
of this Agreement. The prevailing Party in any litigation,
arbitration or mediation relating to collection of fees, or any
other matter under this Agreement, shall be entitled to recover
all its costs, if any, including without limitation, reasonable
attorney's fees, from the other Party for all matters, including,
but no limited to, appeals.
V. Injunctive Relief: XXX XXX XX agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause
immediate and irreparable harm to SWKJ and, in such event, an
injunction restraining XXX XXX XX from such violation may be entered
against XXX XXX XX in addition to any other relief available to SWKJ.
VI. Representations and Warranties: XXX XXX XX represents, warrants,
covenants and agrees that XXX XXX XX has a right to enter into this
Agreement; that XXX XXX XX is not a Party to any agreement or
understanding, whether written or oral, which would prohibit XXX XXX
JR's performance of his obligations hereunder; and XXX XXX XX is not in
possession of any proprietary information belonging to another Party
which XXX XXX XX is legally prohibited from using. A breach of this
Paragraph VI shall be ground for immediate termination of this
Agreement.
VII. Indemnification and Hold Harmless Clause: XXX XXX XX agrees to
indemnify and hold SWKJ and its affiliates, control persons,
directors, officers, employees and agents (each an "Indemnified
Person") harmless from and against all losses, claims, damages,
liabilities, costs or expenses, including those resulting from any
threatened or pending investigation, action, proceeding or dispute
whether or not SWKJ or any such other Indemnified Person is a
party to such investigation, action, proceeding or dispute,
arising out of SWKJ's entering into or performing services under
this Agreement, or arising out of any matter referred to in this
Agreement. This indemnity shall also include SWKJ's and/or any
such other Indemnified Person's reasonable attorneys' and
accountants' fees and out-of-pocket expenses incurred in, and the
cost of SWKJ's personnel whose time is spent in connection with,
such investigations, actions, proceedings or disputes which fees,
expenses and costs shall be periodically reimbursed to SWKJ and/or
to any such other Indemnified Person by XXX XXX XX as they are
incurred; provided, however, that the indemnity herein set forth
shall not apply to an Indemnified Person where a court of
competent jurisdiction has made a final determination that such
Indemnified Person acted in a grossly negligent manner or engaged
in willful misconduct in the performance of the services hereunder
which gave rise to the loss, claim, damage, liability, cost or
expense sought to be recovered hereunder (but pending any such
final determination the indemnification and reimbursement
provisions hereinabove set forth shall apply and XXX XXX XX shall
perform its obligations hereunder to reimburse RWNT and/or each
such other Indemnified Person periodically for its, his or their
fees, expenses and costs as they are incurred). XXX XXX XX also
agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to
XXX XXX XX for or in connection with any act or omission to act as
a result of its engagement under this Agreement except for any
such liability for losses, claims, damages, liabilities or
expenses incurred by XXX XXX XX that is found in a final
determination by a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or
willful misconduct.
If for any reason, the foregoing indemnification is unavailable to SWKJ
or any such other Indemnified Person or insufficient to hold it
harmless, then XXX XXX XX shall contribute to the amount paid or
payable by SWKJ or any such other Indemnified Person as a result of
such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by XXX
XXX XX and its shareholders on the one hand and SWKJ or any such other
Indemnified Person on the other hand, but also the relative fault of
XXX XXX XX and SWKJ or any such other Indemnified Person, as well as
any relevant equitable considerations; provided that in no event will
the aggregate contribution by SWKJ and any such other Indemnified
Person hereunder exceed the amount of fees actually received by SWKJ
pursuant to this Agreement. The reimbursement, indemnity and
contribution obligations of XXX XXX XX hereinabove set forth shall be
in addition to any liability which XXX XXX XX may otherwise have and
these obligations and the other provisions hereinabove set forth shall
be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of XXX XXX XX, SWKJ and any other
Indemnified Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue
indefinitely thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar
means of communication if confirmed by mail, or by certified mail,
return-receipt requested, with postage prepaid, directly to the
Parties' respective addresses herein above set forth. Each Party may,
from time to time, by like written notice, designate a different
address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be
binding on the Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners,
partners, associates, employers, affiliates, subsidiaries, parent
companies, nominees, representatives, employees, agents, consultants
and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder may
not be assigned or delegated by either Party without the prior consent
of the other Party.
XII. Choice of Law: This Agreement is made in Florida, and all questions
related to the execution, construction, validity, interpretation and
performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of Florida.
XIII. Venue: The state of Florida shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an
original of this Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, covenant or condition
to Parties or circumstances other than those as to which it is held
invalid or non enforceable, shall not be affected thereby; and each
term, covenant, or condition of this Agreement shall be valid and shall
be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by
the Parties hereto, which writing specifically refers to this Agreement
and states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter,
and any and all prior representations and agreements with respect to
such subject matter, if any, are merged herein and are superseded by
this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions
of this Agreement. Whenever used herein, the singular shall include the
plural, the plural shall include the singular, and pronouns shall be
read as masculine, feminine, or neuter as the context requires.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
SiteWorks Building& Development Co., .
Date: June 31, 2005 By: /s/ C Xxxxxxx Xxxxx
--------------------
CEO & Chairman
Date: June 31, 2005 By: /s/ Xxx Xxx Xx
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ss Xxx Xxx Xx
