Business Development Agreement Ken Ash
Exhibit10.5
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▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ and [▇▇▇ ▇▇▇ ▇▇.], having a principal residence at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ North Carolina collectively the “Parties” and each
individually a “Party”).
RECITALS:
▇▇▇
▇▇▇
▇▇ is a consulting firm whose principal place of business is located in North
Carolina and
SWKJ
desires to retain ▇▇▇ ▇▇▇ ▇▇ 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:
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I.
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Recitals.
The Parties agree that the foregoing recitals are true and correct
and are
incorporated herein by reference.
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II.
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Engagement.
SWKJ hereby engages ▇▇▇ ▇▇▇ ▇▇ and ▇▇▇ ▇▇▇ ▇▇ hereby accepts such
engagement upon the terms and conditions set forth in this
Agreement.
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A.
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Duties:
▇▇▇ ▇▇▇ ▇▇ 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. ▇▇▇
▇▇▇ ▇▇
will report directly to the Chief Executive Officer (“CEO”) of SWKJ. The
term of this Agreement begins
immediately.
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B.
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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.
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C.
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Fee
Structure:
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1.
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Time
is of the Essence: Time is of the essence with respect to the Parties'
respective obligations under this
Agreement.
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2.
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Amount
of Fee: SWKJ hereby agrees to issue to ▇▇▇ ▇▇▇ ▇▇, and ▇▇▇ ▇▇▇ ▇▇
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.
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3.
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Timing
of Payment of Fee: Any and all fees due to ▇▇▇ ▇▇▇ ▇▇ under this
Agreement
shall be paid upon completion of the
work.
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D.
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Expense
Reimbursement: SWKJ shall reimburse ▇▇▇ ▇▇▇ ▇▇ for all reasonable
expenses
incurred. Expenses and materials reimbursements shall be made promptly
upon submission of an expense report to
SWKJ.
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E.
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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, ▇▇▇ ▇▇▇ ▇▇, 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 ▇▇▇ ▇▇▇ ▇▇ 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.
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| 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.
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| 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.
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V.
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Injunctive
Relief: ▇▇▇ ▇▇▇ ▇▇ 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
▇▇▇
▇▇▇ ▇▇ from such violation may be entered against ▇▇▇ ▇▇▇ ▇▇ in addition
to any other relief available to
SWKJ.
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VI.
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Representations
and Warranties: ▇▇▇ ▇▇▇ ▇▇ represents, warrants, covenants and agrees
that
▇▇▇ ▇▇▇ ▇▇ has a right to enter into this Agreement; that ▇▇▇ ▇▇▇
▇▇ is
not a Party to any agreement or understanding, whether written or
oral,
which would prohibit ▇▇▇ ▇▇▇ JR's performance of his obligations
hereunder; and ▇▇▇ ▇▇▇ ▇▇ is not in possession of any proprietary
information belonging to another Party which ▇▇▇ ▇▇▇ ▇▇ is legally
prohibited from using. A breach of this Paragraph VI shall be ground
for
immediate termination of this
Agreement.
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VII.
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Indemnification
and Hold Harmless Clause: ▇▇▇ ▇▇▇ ▇▇ 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 ▇▇▇ ▇▇▇ ▇▇ 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 ▇▇▇ ▇▇▇ ▇▇ 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). ▇▇▇ ▇▇▇ ▇▇ also agrees that no Indemnified
Person shall have any liability (whether direct or indirect, in contract
or tort or otherwise) to ▇▇▇ ▇▇▇ ▇▇ 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 ▇▇▇ ▇▇▇ ▇▇ 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.
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If
for
any reason, the foregoing indemnification is unavailable to SWKJ or any such
other Indemnified Person or insufficient to hold it harmless, then ▇▇▇ ▇▇▇
▇▇
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 ▇▇▇ ▇▇▇ ▇▇ 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 ▇▇▇ ▇▇▇
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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 ▇▇▇ ▇▇▇ ▇▇ hereinabove set forth
shall
be in addition to any liability which ▇▇▇ ▇▇▇ ▇▇ 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 ▇▇▇ ▇▇▇ ▇▇, 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.
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VIII.
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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.
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IX.
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Survival:
The covenants contained in this Agreement shall survive the termination
of
this Agreement, for whatever reason, and shall be binding on the
Parties.
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X.
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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.
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| 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.
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XII.
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XIII.
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Venue:
The state of Florida shall be proper venue for any and all litigation
and
other proceeds involving this
Agreement.
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| XIV. |
Counterparts:
This
Agreement may be signed in more than one counterpart, in which case
each
counterpart shall constitute an original of this
Agreement.
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XV.
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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.
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XVI.
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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.
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XVII.
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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.
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XVII.
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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.
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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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
| _______________ | |
| CEO & Chairman | |
| Date: June 31, 2005 | By: /s/ ▇▇▇ ▇▇▇ ▇▇ |
| _______________ | |
| ss ▇▇▇ ▇▇▇ ▇▇ | |