Exhibit 10.4
CONSULTING AGREEMENT
Consulting Agreement dated as of May 30th 2005, by and between Execute
Sports, Inc., a corporation with offices at 0000 Xxxxxx Xxx Xxx Xxxxx 000, Xxx
Xxxxxxxx, XX 00000, (the "Company") and Valley Financial Holding Corp, a
corporation organized and existing under the laws of the BVI (the "Consultant").
W I T N E S S E T H:
The Company desires to engage the services of the Consultant for purposes
of general corporate counseling and advice and more specifically for those
services set forth on Schedule A (collectively, the "Counseling Services").
Consultant desires to perform Consulting Services on behalf of the Company
and desires to be engaged and retained by the Company for such purposes.
ACCORDINGLY, in consideration of the recitals, promises and conditions in
this Agreement, the Consultant and the Company agree as follows:
1. CONSULTING SERVICES. The Company hereby retains the Consultant, and the
Consultant accepts such retention all on the terms and conditions herein
contained.
2. TERM.
(a) The initial term (the "Initial Term") of this Consulting Agreement
shall be for a twelve-month period commencing on the date hereof.
(b) Notwithstanding paragraph 2(a), this Agreement may be terminated by
either party prior to the expiration of the Initial Term as follows:
(i) Upon failure of the other party to cure a material default under or a
breach of, this Agreement (including, but not limited to, the Company's
obligations under Section 5 hereof) within 5 days after written notice is
given as to such breach by the terminating party;
(ii) Upon the bankruptcy or liquidation of the other party, whether
voluntary or involuntary;
(iii) Upon the other party taking the benefit of any insolvency law and/or
(iv) Upon the other party having or applying for a receiver appointed for
all or a substantial part of such party's assets or business.
(c) Subject to compliance with Section 5(e) hereof, following the
expiration of the Initial Term, the Agreement will continue in full force and
effect until terminated by either party, for any reason whatsoever, upon thirty
(30) days prior written notice.
(d) Termination will not affect the right (i) of the Consultant to be paid
any fees which are payable as of the effective date of such termination or to be
reimbursed for any reimbursable expenses incurred in connection with the
Consulting Services, or (ii) of any Indemnified Person to receive
indemnification pursuant to the provision set forth in Section of the Agreement.
3. FEES. In addition to and not in mitigation of, or substitution for, the
additional fees enumerated in any of the Schedules hereto, the Company shall pay
and deliver to the Consultant, simultaneously with the execution and delivery of
this Agreement, an initial engagement fee consisting of a cash payment in the
amount of $187,500 to be paid in cash or the Company's common stock with piggy
back registration rights in lieu of cash.
4. EXPENSES. The Company will reimburse the Consultant for its expenses,
reasonably incurred by the Consultants, only upon prior written authorization.
5. DUTIES OF THE COMPANY.
(a) The Company shall supply the Consultant, on a regular and timely
basis, with all approved data and information about the Company, its management,
its products and its operations, and the Company shall be responsible for
advising the Consultant of any facts which would affect the accuracy of any
prior data and information previously supplied to the Consultant so that the
Consultant may take corrective action.
(b) The Company shall promptly supply the Consultant with: full and
complete copies of all filings with all federal and state securities agencies;
full and complete copies of all stockholder reports and communications, whether
or not prepared with the Consultants' assistance; all data and information
supplied to any analyst, broker-dealer, market maker or other member of the
financial community; and all product/services brochures, sales materials, etc.
(c) The Company shall contemporaneously notify the Consultant if any
information or data being supplied to the Consultant has not been generally
released or promulgated.
6. REPRESENTATION AND INDEMNIFICATION BY COMPANY.
(a) The Company shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information, and data that it
supplies to the Consultant and the Company acknowledges its awareness that the
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its public relations functions.
(b) The Consultant, in the absence of notice in writing from the Company,
will rely on the continuing accuracy of material, information and data supplied
by the Company.
(c) The Company hereby agrees to indemnify the Consultants against, and to
hold the Consultant harmless from, any claims, demands, suits, loss, damages,
etc. arising out of the Consultant's reliance upon the accuracy and continuing
accuracy of such facts, material, information and data, unless the Consultant
has been negligent in fulfilling his duties and obligations hereunder.
(d) The Company hereby agrees to indemnify the Consultant against, and to
hold the Consultant harmless form, any claims, demands, suits, loss, damages,
etc. arising out of the Consultant's reliance on the general availability of
information supplied to the Consultant and the Consultant's ability to
promulgate such information, unless the Consultant has been negligent in
fulfilling his duties and obligations hereunder.
7. REPRESENTATION AND INDEMNIFICATION BY CONSULTANT.
(a) The Consultant agrees to provide the Consulting Services hereunder in
a good and workmanlike manner consistent with the performance standards observed
by other professionals undertaking such functions.
(b) The Consultant agrees that it will not release or disseminate any
information pertaining to the Company without providing the Company with an
advance copy thereof and obtaining authorization for such release and
dissemination.
(c) The Consultant hereby agrees to indemnify the Company against, and to
hold the Company harmless from, any claims, demands, suits, loss, damages, etc.
arising out of any inaccurate statement or misrepresentation provided that such
indemnification shall not pertain to any information provided by or attributable
to the Company.
8. RELATIONSHIP OF PARTIES. The Consultant is an independent contractor,
responsible for compensation of its agents, employees and representatives, as
well as all applicable withholding therefrom and taxes thereon (including
unemployment compensation) and all workers' compensation insurance. This
Agreement does not establish any partnership, joint venture, or other business
entity or association between the parties, and neither party is intended to have
any interest in the business or property of the other.
9. MISCELLANEOUS.
(A) ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the
Schedules and Exhibits hereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters.
(B) NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 4:30 p.m. (Eastern Standard
time) on a Business Date, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 4:30 p.m. (Eastern
Standard time) on any date and earlier than 11:59 p.m. (Eastern Standard time)
on such date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Company: 0000 Xxxxxx Xxx Xxx #000
Xxx Xxxxxxxx XX 00000.
If to the Consultant:
or such other address as may be designated in writing hereafter, in the same
manner, by such party.
(C) AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Company and the Consultant, or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
(D) HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. All words used in this Agreement will be construed
to be of such number and gender as the circumstances require.
(E) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
insure to the benefit of the parties and their successors and permitted assigns.
This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assignees, and other than with respect to
permitted assignees is not for the benefit of, nor may any other person hereof
enforce any provision. Anything in the foregoing to the contrary
notwithstanding, subject to compliance with applicable securities laws, the
Consultant may assign and/or transfer all or a portion of the consideration
payable by the Company hereunder.
(F) GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Florida without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the United States
Federal District Court for the Middle District of Florida for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, or that such suit,
action or proceeding is improper.
(G) SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
(H) REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, the Subscriber
will be entitled to specific performance or the obligations of the Company
hereunder. The Company and the Subscriber agree that monetary damages would not
be adequate compensation for any loss incurred by reason of any breach of its
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
Company Consultant
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Authorized Signature Authorized Signature
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Name and Title Name and Title
SCHEDULE A
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To the Consulting Agreement dated as of May 30th 2005, Between Execute Sports,
Inc. and Valley Financial Corp.
1.1 STRATEGIC PLANNING SERVICES. The following strategic planning services
shall be provided to the company by the Consultant which will undertake for and
consult with the Company concerning management, marketing, consulting, strategic
planning, corporate organization and structure, financial matters in connection
with the operation of the business of the Company, expansion of services, and
shall review and advise the Company regarding its overall progress, needs and
condition. The Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) Advise the Company in the implementation of short and long term
strategic planning to fully develop and enhance the Company's assets,
resources, products and services.
(b) Advise the Company relative to the recruitment and employment of key
executives consistent with the expansion of operations of the Company.
(c) Advise and recommend to the Company additional services relating to
the present business and services provided by the Company as well as new
products and services that may be provided by the Company.
(d) Advise the officers and employees of the company concerning matters
relating to the management and organization of the company, their
financial policies, the terms and conditions of employment, and generally
any matter arising out of the business affairs of the company.
1.2 DISCLAIMER BY CONSULTANT. The Consultant makes no representation that
as a result of the services to be provided by it (a) the price of the Company's
publicly traded securities will increase (if applicable), (b) any person will
purchase securities in the Company as a result of the contract, or (c) any
investor will lend money to or invest in or with the Company. In addition, the
Consultant makes no representation that he is a securities attorney or
equivalent and reliance should not be made on those statements. The Company
should consult legal counsel for such decisions as deemed appropriate by the
Company.