Exhibit 99.5
AGREEMENT FOR CONSULTING SERVICES
1. Parties. This Agreement for Consulting Services
("Agreement") is entered into by and between Trufello Associates
Limited, ("The Consultant") and The Prestige Xxxxx.Xxx, Inc.
("The Company") this 14th day of August 2002. Consultant and
Company is collectively called the "Parties."
2. Purpose. Consultant and Company have voluntarily
agreed to enter into this Agreement in view of its mutual
benefits, including the provision of valuable services by
Consultant and the payment of valuable consideration by Company
3. Scope of Services. Consultant agrees to provide
advisory and consulting services as requested by Company during
the term of this Agreement. Consultant's services will include
coordination, development, delivery and execution of strategic
planning efforts as directed by, and other projects mutually
agreed to with, the President of the Company and shall include
but not limited to (a) the identification of mortgage and other
financial service related companies for possible acquisition by
or merger with the Company, (b) conducting preliminary
discussions with such companies regarding their acquisition by,
or merger with, the Company and other related matters; (c)
assisting the Company in performing due diligence inquiries of
any entities being considered for an acquisition by, or merger
with, the Company, irrespective of whether or not the Consultant
had originally identified such entity for such proposed
acquisition or merger; and (d) providing the Company with
recommendations regarding management strategies for the operating
subsidiaries of the Company. The parties acknowledge that the
compensation to be paid Consultant is based upon Consultant's
overall consulting services to be rendered only to the extent
that such services are requested by the Company and that the
funding targets set forth in paragraph 2, above, are not
mandatory, but desired goals. At no time will Consultant perform
any services, for which Consultant would be compensated pursuant
to this Agreement, which would be in contravention to any rules
and or regulations of the United States Securities and Exchange
Commission (the "SEC") concerning compensation of consultants and
others by means of issuance of securities that have been
registered with the SEC on Form S-8 (the "SEC S-8 Rules").
4. Term of Agreement. This Agreement shall be effective
commencing on August 15, 2002, through August 15, 2005, unless
earlier terminated under paragraph 6 below. This Agreement may be
extended (with or without change) for additional periods on such
terms as the parties may agree in writing.
5. Payment. As compensation for services to be performed
by Consultant during the term of this Agreement, Company agrees
to pay Consultant the total sum of $1,500,000, to be paid, in
installments, by issuance of the Company's Common Stock (the
"Prestige Common Stock"). Each installment payment of Prestige
Common Stock to Consultant (individually and collectively, the
"Prestige Shares") shall be subject to the following terms and
conditions:
(a) Within fifteen (15) days of execution of this
Agreement, Company shall deliver to Consultant 200,000
Shares to be considered as a deposit of $31,000 towards
future installment payments.
PAGE-1-
(b) On, or before, December 1, 2002, and on, before
March 1, 2003, and continuing on, or before, the first
day of June, September, December and March of each year
thereafter through August 15, 2005, (each such date
being an "Installment Payment Date") the Company shall
deliver to Consultant that number of Prestige Shares
that shall be equal in value to the sum of $100,000 the
calculation of the number of shares being issued and
delivered to be determined in accordance with
subparagraph (d), below.
(c) On, or before, August 15, 2005, (the "Final
Installment Payment Date"), the Company shall deliver
to Consultant that number of Prestige Shares that shall
be equal in value to the sum of $300,000, less the
initial deposit, the calculation of the number of
shares being issued and delivered to be determined in
accordance with subparagraph (d), below.
(d) The number of Prestige Shares to be issued and
delivered to Consultant pursuant to subparagraphs (b)
and (c), above, shall be calculated in the following
manner: For each Installment Payment Date and the
Final Installment Payment Date, a date 15 days prior
thereto (the "Valuation Date") shall be utilized for
the determination of the number of Prestige Shares to
be issued and delivered to Consultant on the respective
Installment Payment Date or Final Installment Payment
Date. As of each Valuation Date, the value of the
Prestige Shares shall be determined by dividing the
dollar amount of the payment then due by the fair
market value of one share of Prestige Common Stock, as
determined in the manner set forth in this subparagraph
(d). If, as of the Valuation Date, the Prestige Common
Stock is traded on a national securities exchange or
the NASDAQ Stock Market, then the fair market value of
one share of Prestige Common Stock shall be the average
of the closing selling prices of the Prestige Common
Stock as reported by such exchange or as reported on
the NASDAQ Stock Market for the five trading days
immediately preceding the Valuation Date, or if there
were no sales of Prestige Common Stock during such five-
day period, then the fair market value of one share of
Prestige Common Stock shall be deemed to be the closing
selling price of the Prestige Common Stock as reported
by such exchange or as reported on the NASDAQ Market
System for the next prior day on which there were sales
of Prestige Common Stock. If, as of the Valuation
Date, Prestige Common Stock is traded other than on a
national securities exchange or the NASDAQ Stock
Market, then the fair market value of one share of
Prestige Common Stock shall be the average of the
closing bid and asked prices of a share of Prestige
Common Stock on the Valuation Date as quoted on the OTC
Bulletin Board or the Pink Sheets, as relevant, for the
five trading days immediately preceding the Valuation
Date or, if there is no bid and asked price during such
five-day period, the fair market value of one share of
Prestige Common Stock shall be deemed to the average of
the closing bid and asked prices of Prestige Common
Stock as quoted on the OTC Bulletin Board, or the BBX,
or the Pink Sheets, as relevant, for the next prior
trading day on which there was a bid and asked price.
If no such bid and asked price is available, the Board
of Directors of Prestige shall make a good faith
determination of the fair market value of one share of
Prestige Common stock using any reasonable method of
valuation.
(e) All of the Prestige Shares to be issued and delivered to
Consultant shall have been registered with the SEC on Form S-8.
PAGE-2-
(f) In order to comply with the XXX X-0 Rules, unless, as a date
of issuance of Prestige Shares to Consultant, any such applicable
rule has been amended to provide otherwise, the Prestige Shares
shall be issued in the name of such individual nominee of
Consultant, as Consultant shall advise the Company.
6. Termination. This Agreement may be terminated before
its expiration date specified in paragraph 4:
a. Upon written notice by the non-breaching party
specifying a material breach of this Agreement by the other party
(including without limitation breach of any obligation referenced
in paragraphs 17 through 20 below);
b. Any act of dishonesty against the interest of
Company;
c. Any willful and continual failure of Consultant to
substantially perform his duties;
d. Automatically upon the insolvency of Company
resulting in a petition in bankruptcy;
e. Notwithstanding any notice of termination pursuant
to subparagraphs (a) through (d), above, Consultant shall remain
bound by the promises contained in paragraphs 16-17, 19-21 and 22-
29 below.
7. Supplies and Equipment. Consultant will provide the
supplies and equipment necessary to perform the services
requested. Company shall provide Consultant with reasonable
access to the information and facilities necessary to enable
Consultant to perform services under this Agreement.
8. Expenses. Consultant shall pay all expenses incurred
in performance of said services. Unless otherwise agreed upon by
Company in writing, expenses incurred by Consultant in performing
services for, or on behalf of Company, shall not be reimbursed by
Company.
9. Relationship Between Parties. The parties intend that
Consultant shall provide services to Company as an independent
contractor. Nothing in this Agreement shall be interpreted or
construed as creating or establishing the relationship of
employee or employee between Company and Consultant, or any
employee or agent of Consultant. Consultant shall be solely and
entirely responsible for Consultant's acts and the acts of
Consultant's employees, agents or subcontractors.
PAGE-3-
10. Control. Consultant retains the sole and exclusive
right to control or direct the manner or means by which the
services described herein are to be performed.
11. Non-Exclusive Arrangement. It is not intended that
Company will have an exclusive right to Consultant's services
during the course of this Agreement, and Consultant shall retain
the right to perform services for others during the term of this
Agreement. Company is free to utilize the services of others
during the term of this Agreement.
12. Time and Place of Work. Consultant's services shall be
rendered in a timely and professional manner at such places and
during such hours as Consultant and Company may determine
consistent with the needs of the project as defined by Company.
13. Benefits. Because Consultant is engaged as an
independent contractor and not an employee, Consultant will not
be eligible to participate in employee benefits, leaves of
absence or other programs that are now or may be provided by
Company to its employees.
14. Taxes. Because Consultant is engaged as an independent
contractor and not an employee, no payment received by Consultant
pursuant to this Agreement shall be subject to employment tax
withholding, nor shall Company withhold or pay federal social
security tax (FICA), Medicare tax, or federal or state income
tax, or make contributions to the federal or state unemployment
or disability insurance funds on behalf of Consultant.
Consultant is responsible for filing all income and other tax
forms and paying all taxes due.
15. Insurance. Consultant shall be solely responsible for
maintaining insurance coverage applicable to Consultant's
performance of services under this Agreement, including but not
limited to workers' compensation, automobile, and general
liability and property damage insurance. Consultant shall
indemnify and defend Company against all liability or loss, and
against all claims or actions based upon or arising out of damage
or injury to persons or property caused by or sustained in
connection with Consultant's performance of services under this
Agreement.
16. Arbitration. Except for any legal action by Company
seeking injunctive relief under paragraph 21 below, Consultant
and Company hereby consent to submit to final and binding
arbitration in accordance with California Code of Civil Procedure
sections 1280 through 1296 any and all disputes and controversies
between Consultant and Company, or any of their respective
employees, officers, agents, or representatives, including
without limitation any claims relating to Consultant's
engagement, claims for breach of contract, statute or public
policy, or personal injury (tort). Any dispute submitted to
arbitration shall be decided by a single, neutral arbitrator,
which shall be mutually selected by the parties not later than
forty-five days after service of the demand for arbitration. If
the parties for any reason do not mutually select the Arbitrator
within the forty-five (45) day period, then either party may
apply to any court of competent jurisdiction to appoint a retired
judge as the arbitrator. Judgment on an award issued by the
arbitrator may be entered in any court of competent jurisdiction.
The prevailing party shall be entitled to recover all costs
incurred as a result of the arbitration, including without
limitation, filing fees, attorneys' fees, compensation paid to
the arbitrator and costs of transcripts.
PAGE-4-
17. Proprietary Information.
a. Consultant's work for Company will bring
Consultant into contact with valuable business, technical and
trade secret information that has been discovered or accumulated
by Company or its affiliates through the expenditure of
substantial time, effort and expense, and provides a competitive
advantage to Company ("Proprietary Information").
b. Proprietary Information includes confidential
information and trade secrets owned by Company, including but not
limited to:
(1) Customer needs, customer requirements, the
services rendered or proposed to customers, and fees charged or
proposed to customers;
(2) Financial, sales and marketing data relating
to Company, the industry or other areas pertaining to Company's
activities or contemplated activities including, without
limitation, marketing plans, business strategies, development
plans and strategies, sales, profits, financial and/or accounting
information and techniques, and non-public cost and pricing
information;
(3) Research, development, inventions,
specifications, designs, ideas, methods, processes, technologies,
and know-how, whether or not patentable, copyrightable, or
otherwise protected by law, conceived or made by Consultant or
others engaged to work on behalf of Company, individually or
jointly with others;
(4) Company's relations with its employees,
including without limitation, salaries, job classifications and
skill levels;
(5) Any other information designated by Company
to be confidential, secret and/or proprietary.
c. Such information is confidential regardless of
whether it is merely remembered, embodied in tangible form,
developed in whole or part by Consultant, or whether it is
provided to Consultant. However, Proprietary Information does
not include information, which has been made publicly available
or otherwise placed in the public domain by means that do not
violate this Agreement or similar agreements between Company and
others.
d. Consultant agrees that at all times, Consultant
will protect, safeguard and keep secret the Proprietary
Information; use Proprietary Information only in connection with
Consultant's work for Company; disclose Proprietary Information
only to those employees or agents of Company with a "need to
know" the same for use in connection with their duly authorized
duties as employees or agents of Company; and refrain from using
Proprietary Information for any purpose whatsoever, without
proper authorization therefor.
e. Consultant agrees to refrain from using
Proprietary Information for Consultant's own benefit, or for the
benefit of any third party, and will not directly or indirectly
disclose or reveal it, in any manner, to any person or entity
both during and after the termination of this Agreement. In
particular, Consultant will not use Proprietary Information to
solicit, encourage or in any way influence any of Company's
customers to divert their business from Company.
PAGE-5-
18. Policy against Use of Trade Secrets of Others. In the
course of Consultant's employment for Company, Consultant will
not utilize the trade secrets of others (such as Consultant's
prior employers), which Consultant has an obligation to maintain
as confidential. However, Consultant is not required to maintain
the confidentiality of any information, which is:
a. known to Consultant prior to learning the
information in connection with work for a prior employer, or
known to third parties knowledgeable in the industry without
Consultant's fault or negligence; or
b. furnished by a prior employer to a third party, or
received by Consultant without restrictions or obligations
regarding secrecy or confidentiality; or
c. independently developed by Consultant or Company
without recourse to the trade secret of another; or
d. approved for release by the owner of the trade
secret information.
19. Non-Solicitation. Consultant specifically agrees that
during the term of this Agreement and for a period of one (1)
year thereafter, Consultant will not directly or indirectly,
either for Consultant or for any other person, company or other
entity, solicit or encourage any person employed by or engaged to
render services on behalf of Company to leave Company or engage
in any activity contrary to Company's interests.
20. Products and Documents. Consultant hereby acknowledges
and agrees that the results of all services provided pursuant to
this Agreement are the sole and exclusive property of Company.
Upon request or upon the termination of this Agreement,
Consultant shall promptly deliver to Company all notes, writings,
lists, files, reports, correspondence, tapes, cards, maps,
machines, technical data or any product or document (whether
maintained in tangible documentary form, or in computer memory or
other electronic format) which Consultant or Consultant's
employees, agents or subcontractors produced or received while
performing services pursuant to this Agreement.
21. Injunctive Relief. Consultant acknowledges that
violations of paragraphs 17, 19 and 20 would cause irreparable
injury to Company. Therefore, Consultant agrees that in addition
to any other remedies available, and without being required to
prove actual damages or being required to post any bond or
undertaking, Company shall be entitled to obtain an injunction to
prevent any actual or threatened use or disclosure of Proprietary
Information, or to otherwise enforce the provisions of this
Agreement.
22. Compliance with Laws. In performing services under
this Agreement, Consultant promises to comply with all applicable
federal, state, county and city laws, ordinances and regulations.
PAGE-6-
23. Assignment/Subcontracting. This Agreement is
assignable by Company upon written notice to Consultant.
However, since the services to be rendered by Consultant are
personal in nature, this Agreement may not be assigned by
Consultant without the written consent of Company. Consultant
shall not utilize Consultant's employees, agents, or
subcontractors to perform services under this Agreement without
the express, written consent of Company.
24. No Authority to Bind Company. Consultant has no
authority to enter into contracts or agreements on behalf of
Company, or to represent Company as an agent or in any other
capacity without the express written consent of the Chief
Executive Officer of Company.
25. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of California.
26. Notices. All notices or other communications provided
for in this Agreement shall be made in writing and shall be
deemed properly delivered when (i) delivered personally or (ii)
by the mailing of such notice by registered or certified mail,
postage prepaid, to the parties at the addresses set forth on the
signature page of this Agreement (or to such other address as one
party designates to the other in writing).
27. Reformation/Severability. If any provision of this
Agreement is declared invalid by any tribunal, then such
provision shall be deemed automatically adjusted to the minimum
extent necessary to conform to the requirements for validity as
declared at such time and, so adjusted, shall be deemed a
provision of this Agreement as though originally included
therein. In the event the provision invalidated is of such a
nature that it cannot be so adjusted, the provision shall be
deemed deleted from this Agreement as though such provision had
never been included. In either case, the remaining provisions of
this Agreement shall remain in effect.
28. Entire Agreement. This Agreement is the entire
agreement between the parties relating to the engagement of
Consultant by Company. Except as specifically incorporated
herein, this Agreement supersedes and terminates all prior
agreements, whether oral or written, between Company and
Consultant.
29. Amendments. No supplement, modification or amendment
of any term, provision or condition of this Agreement shall be
binding or enforceable unless evidenced in writing executed by
the parties hereto.
[SIGNATURE PAGE FOLLOWS]
PAGE-7-
After carefully reading and considering the foregoing provisions
of this Agreement, Consultant and Company have voluntarily signed
this Agreement to be effective as of the date first above
written.
Trufello Associates Limited The Prestige Xxxxx.Xxx, Inc.
Xxxxxxx Xxxxxxxxxx Xxxxx 0000 Xx. Xxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx 000
Xxxxxxxx Xxxxxx Denver, Colorado 80237
Charleston
Nevis West Indies
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------- --------------------
Xxxxxx Xxxxxxxx Xxxxxxx X. Xxxxx
President
PAGE-8-
