CONSULTING AND INVESTMENT BANKING SERVICES AGREEMENT
EXHIBIT
10.9
This
Consulting Services Agreement (“Agreement”), dated as of October 8, 2005, is
made by and between Xxxxxxxx X. Xxxxx, an individual (“Consultant”), whose
address is 000 Xxxxxxxxx Xx., Xxxxxx, XX 00000 and Xxxxxxx Technologies Corp.
(“Client”), a Delaware corporation, having it’s principal place of business at
0000 X. 000xxXx. Xxxxx Xx. 00000.
WHEREAS,
Consultant has extensive background and contacts in the area of business
development and marketing;
WHEREAS,
Consultant desired to be engaged by Client to provide information, evaluation
and consulting and investment banking services to the Client in his area of
knowledge and expertise on the terms and subject to the conditions set forth
herein;
WHEREAS,
Client is a publicly held corporation with its common stock shares trading
on
the Over the Counter Bulletin Board under the ticker symbol “GWLK,” and desires
to further develop its business and increase it’s common stock share’s value;
and
WHEREAS,
Client desires to engage Consultant to provide information, evaluation and
consulting and investment banking services to the Clients in his area of
knowledge and expertise on the terms and subject to the conditions set forth
herein.
NOW,
THEREFORE, in consideration for those services Consultant provides to Client,
the parties agree as follows:
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1.
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Services
of Consultant.
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Consultant
agrees to perform for Client all necessary services required in working to
bring
about the effectiveness of the Client’s business plan of operations. As such
Consultant will provide bona fide services to Client. Services to Client,
throughout the term, shall include, but not be limited to, identifying and
securing business opportunities, acquisitions and combinations for Client,
investment banking advice, marketing advice, interfacing with marketers, all
at
the direction of Client. Consultant shall dedicate all of the necessary time
and
facilities required to perform under the Agreement, however, Consultant is
only
obligated to perform such services on a non-exclusive basis and may provide
similar services to others provided they are not directly competitive with
Client’s businesses. The services to be provided by Consultant will not be in
connection with the offer or sale of securities in a capital-raising
transaction, and will not directly or indirectly promote or maintain a market
for Client’s securities.
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2.
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Consideration.
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In
complete consideration for Client providing the services as described in
paragraph 1 above, Client shall issue to Consultant, as compensation and fees
for his services, 1,500,000 shares of its restricted stock (“shares”). Those
said shares shall have piggy back rights attached upon filing a
registration.
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3.
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Confidentiality.
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Each
party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans, software, technical
processes and formulas, source codes, product designs, sales, costs and other
unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data (“Confidential
Information”). Confidential Information shall not include information that the
receiving party can demonstrate: (a) is, as of the of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
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4.
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Late
Payment.
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Clients
all pay to Consultant all fees within fifteen (15) days of the due date. Failure
of Client to finally pay any fees with fifteen (15) days
after the applicable due date shall be deemed a material breach of this
Agreement, justifying suspension of the performance of the “Services” provided
by the consultant, will be sufficient cause for immediate termination of this
Agreement by Consultant. Any such suspension will in no way relieve Client
from
payment of fees, and, in the event of collection enforcement, Client shall
be
liable for any costs associated with such collection, including, hut not limited
to, legal costs, attorneys’ fees, courts costs, and collection agency
fees.
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5.
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Indemnification.
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(a)
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Client.
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Client
agrees to indemnify, defend, and shall hold harmless Consultant and/or his
agents, and to defend any action, brought against said parties with respect
to
any claim, demand, cause of action, debt or liability, including reasonable
attorneys’ fees to the extent that such action is based upon a claim that: (I)
is true, (ii) would constitute a breach of any of Client’s representations,
warranties, or agreements hereunder, or (iii) arises out of the negligence
or
willful misconduct of Client, or any Client Content to be provided by Client
and
does not violate any rights of third parties, including, without limitation,
rights of publicity, privacy, patents, copyrights, trademarks, trade secrets,
and/or licenses.
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(b)
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Consultant.
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Consultant
agrees to indemnify, defend, and shall hold harmless Client, its directors,
employees and agents, and defend any action brought against same with respect
to
any claim, demand, cause of action, debt or liability, including reasonable
attorneys’ fees, to the extent that such an action arises out of the gross
negligence or willful misconduct of Consultant.
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(c)
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Notice.
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In
claiming any indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim, which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense, and
all negotiations relative to the settlement of any such claim. Any settlement
intended to bind the indemnifying party shall not be final without the
indemnified party’s written consent, which shall not be unreasonably
withheld.
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6.
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Limitation
of Liability.
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Consultant
shall have no liability with respect to Consultant’s obligations under this
Agreement or otherwise for consequential, exemplary, special, incidental, or
punitive damages even if Consultant has been advised of the possibility of
such
damages. In any event, the liability of Consultant to Client for any reason
and
upon any cause of action, regardless of the form in which the legal or equitable
action may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the fee paid by Client to
consultant for the specific service provided that is in question.
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7.
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Termination and
Renewal.
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(a)
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Term.
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This
Agreement shall become effective on the date appearing next to the signatures
below and terminate one (1) year thereafter. Unless otherwise agreed upon in
writing by Consultant and Client, this Agreement shall not automatically be
renewed beyond its Term.
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(b)
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Termination.
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Either
party may terminate this agreement on thirty (30) calendar days written notice,
or if prior to such action, the other party materially breaches any of its
representations, warranties, or obligations under this Agreement. Except as
may
be otherwise provided in this Agreement, such breach by either party will result
in the other party being responsible to reimburse the non-defaulting party
for
all costs incurred directly as a result of the breach of this Agreement, and
shall be subject to such damages as may be allowed by law including all
attorneys’ fees an costs of enforcing the Agreement. In the event consultant
voluntarily terminates this agreement prior to the completion of its initial
term, for reasons other than breach, Consultant’s fees under this agreement will
be pro-rated for the period for which services were actually
performed.
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(c)
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Termination
and Payment.
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Upon
any
termination or expiration of this Agreement, Client shall pay all unpaid and
outstanding fees through the effective date of termination or expiration of
this
Agreement. And upon such termination, Consultant shall provide and deliver
to
Client any and all outstanding services due through the effective date of this
agreement.
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8.
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Miscellaneous.
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(a)
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Independent
Contractor.
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This
Agreement establishes an “independent contractor” relationship between
Consultant and client.
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(b)
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Rights
Cumulative; Waivers.
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The
rights of each of the parties under this Agreement are cumulative.
The rights
of
each of the parties hereunder shall not be capable of being waived or varied
other than by an express waiver or variation in writing. Any failure to exercise
or any delay in exercising any of such rights shall not operate as a waiver
or
variation of that or any other such right. Any defective or partial exercise
of
any of such rights shall not preclude any other or further exercise of that
or
any other such right. No act or course of conduct or negotiation on the part
of’
any party shall in any way preclude such party from exercising any such right
or
constitute a suspension or an variation of any such right.
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(c)
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Benefit
Successors Bound.
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This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of; the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
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(d)
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Entire
Agreement.
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This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representations, oral
or
written, express or implied, between them with respect to this Agreement or
the
matters described in the Agreement, except as set forth in this Agreement.
Any
such negotiations, promises, or understandings shall not be used to interpret
or
constitute this Agreement.
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(e)
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Assignment.
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Neither
this Agreement nor any other benefit to accrue hereunder shall be assigned
or
transferred by either party, either in whole or in part, without the written
consent of the other party, and any purported assignments in violation hereof
shall be void.
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(f)
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Amendment.
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This
agreement may be amended only by an instrument in writing executed by all the
parties hereto.
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(g)
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Severability.
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Each
part
of this Agreement is intended to be severable. In the event that any provision
of the Agreement is found by any court or other authority of competent
jurisdiction to be illegal or unenforceable, such provision shall be severed
or
modified to the extent necessary to render it enforceable and as so severed
or
modified, this Agreement shall continue in full force and effect.
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(h)
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Section
Headings.
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The
Section headings in the Agreement arc for reference purposes only and shall
not
affect in any way the meaning or interpretation of the Agreement.
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(i)
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Construction.
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Unless
the context otherwise requires, when used herein, the singular shall be deemed.
to include the plural, the plural shall, be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
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(j)
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Further
Assurances.
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In
addition to the instruments and document to be made, executed and delivered
pursuant to this Agreement, the parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
may
reasonably require to carry out the terms of this Agreement and the transactions
contemplated hereby.
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(k)
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Notices.
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Any
notice which is required or desired under this Agreement shall be given in
writing and may be sent by personal delivery or by mail (either a. United Stales
mail, postage prepaid, or b. Federal Express or similar generally recognized
overnight carrier), addressed as follows (subject to the right to designate
a
different address by notice similarly given):
To
Client:
Xxxxx
Xxxxxxxxx, CEO/President
Xxxxxxx
Technologies Corp.
0000
X.
000xx
Xx.
Xxxxx
XX.
00000
To
Consultant:
Xxxxxxxx
X. Xxxxx
000 Xxxxxxxxx
Xxxxx
Xxxxxx,
XX 00000
Telephone
(000) 000-0000
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(l)
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Governing
Law.
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This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of Delaware without reference to its conflicts of laws rules or
principles. Each of the parties consents to the exclusive jurisdiction of the
federal courts of the State of Nebraska in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by
law,
any objection, including any objection based on
forum non coveniens, to
the
bringing of any such proceeding in such jurisdictions.
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(m)
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Consents.
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The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of such party.
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(n)
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Survival
of Provisions.
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The
provisions contained in paragraphs 3, 5, 6, and 8 of this Agreement shall
survive the termination of this Agreement.
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(o)
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Execution
in Counterparts.
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This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which together shall constitute on and the same
agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed amid
have
agreed to and accepted the terms herein on this date October 8,
2005.
| Xxxxxxx Technologies Corp. | ||
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| By: | /s/ Xxxxx Xxxxxxxxx | |
| Xxxxx Xxxxxxxxx, CEO/President | ||
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| By: | /s/ Xxxxxxxx X. Xxxxx | |
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Xxxxxxxx
X. Xxxxx, Consultant
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