EXHIBIT 10.5
NUMARK CAPITAL
c o r p o r a t i o n
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into between NuMark
Corporation ("Consultant") and the Client identified on the signature page to
this Agreement ("Client").
The Consultant is in the business of providing management consulting services,
business advisory services, shareholder information services and public
relations services. The Client deems it to be in its best interest to retain the
Consultant to render to the Client such services as may be agreed to by the
parties from time to time; and the Consultant desires to render such services to
the Client as set forth hereunder.
Now therefore, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Consulting Services. The Client hereby retains the Consultant as an
independent contractor, and the Consultant hereby accepts and agrees to
such retention. It is acknowledged and agreed by the Client that the
Consultant carries neither professional licenses nor memberships in any
self-regulatory organizations. It is further acknowledged and agreed by the
Client that the Consultant is not rendering legal advice or performing
accounting services and is not acting and shall not act as an investment
advisor or broker/dealer within the meaning of any applicable state or
federal securities laws. The services of the Consultant shall not be
exclusive nor shall the Consultant be required to render any specific
number of hours or assign specific personnel to the Client or its projects.
2. Independent Contractor. The Consultant agrees to perform its consulting
duties hereto as an independent contractor. Nothing contained herein shall
be considered to create an employer-employee relationship between the
parties to this Agreement. The Client shall not make social security,
workers' compensation or unemployment insurance payments on behalf of
Consultant. The parties hereto acknowledge and agree that the Consultant
cannot guarantee the results or effectiveness of any of the services
rendered or to be rendered by the Consultant. Rather, Consultant shall
conduct its operations and provide its services in a professional manner
and in accordance with good industry practice. The Consultant will use its
reasonable business efforts in providing services to Client.
3. Time, Place and Manner of Performance. The Consultant shall be available to
the officers and directors of the Client at such reasonable and convenient
times and places as may be mutually agreed upon. Except as aforesaid, the
time, place and manner of performance of the services hereunder, including
the amount of time to be allocated by the Consultant to any specific
service, shall be determined in the sole discretion of the Consultant.
4. Term of Agreement. The term of this Agreement shall be 90 days (the
"Term"), commencing on the date of this Agreement, subject to prior
termination as hereinafter provided.
5. Compensation. The Client shall provide to the Consultant compensation for
its services hereunder in the amounts and at the times as set forth as
follows. Prior to the signing of this Agreement, Consultant will be issued
a certificate for one million two hundred thousand (1,200,000) shares of
restricted Common Stock (the "Shares") of Worldwide Petromoly, Inc. (OTC
BB:MOLY). Consultant understands, acknowledges and agrees that such shares
will be fully-paid and non-assessable upon completion of the initial thirty
(30) days of the Term.
6. Termination. Either the Consultant or the Client may terminate this
Agreement at the end of any month during the term of this Agreement on
thirty (30) days prior written notice. This Agreement shall automatically
terminate upon expiration of the Term or the dissolution, bankruptcy or
insolvency of the Client or the Consultant. The Consultant and the Client
shall have the right and the discretion to terminate this Agreement should
the other party, in performing its duties hereunder, violate any law,
ordinance, permit or regulation of any governmental entity or
self-regulatory organization, accept for violations that either singularly
or in the aggregate do not have or will not have a materially adverse
effect on the party desiring termination. In the event of any termination
hereunder, following the initial thirty (30) days of the Term all
consideration paid to the Consultant through the date of termination shall
be fully earned and non-refundable, and the parties shall have no further
duties or responsibilities to each other, except that the Client shall be
responsible to make any and all other payments, if any, due to the
Consultant through the date of termination, and the parties shall continue
to be bound by the confidentiality provisions contained in Section 8 of
this Agreement.
7. Work Product. It is agreed that all information and materials produced for
the Client shall be the property of the Client, free and clear of all
claims thereto by the Consultant, and the Consultant has no claim of
authorship therein or ownership rights thereto.
8. Confidentiality. The Client and the Consultant each agree to provide
reasonable security measures to keep information belonging to the other
party confidential where release of the same would be detrimental to such
party's business interests ("Confidential Information"). Each party agrees
that Confidential Information shall be subject to this Agreement if
provided to the other party and marked "Confidential" in a conspicuous
manner or otherwise by its nature is known, or should have been known, by
its nature to the receiving party as being of a Confidential nature.
Consultant and Client shall each require their employees, agents,
affiliates, sub-contractors, other licensees, and others who have access to
Confidential Information through Consultant or Client, as the case may be,
to enter into appropriate non-disclosure agreements requiring the level and
degree of confidentiality contemplated by this Agreement. Consultant and
Client each agree that it will not, either during the term of this
Agreement or at any time thereafter, disclose, use or make known for its
own or another's benefit, any Confidential Information acquired or used by
it hereunder. The term "Confidential Information" excludes information
that: (a) becomes generally available to the public, other than as a result
of disclosure by Consultant or Client or another party in violation of any
obligation of confidentiality, or (b) Client or Consultant obtains from a
third party who is not otherwise bound by any confidentiality obligation.
9. Conflict of Interest. The Consultant shall be free to perform services for
other entities or persons. The Consultant will notify the Client of its
performance of consulting services for any other entity or person that the
Consultant reasonably believes could materially conflict with its
obligations to the Client under this Agreement.
10. Disclaimer of Responsibility for Acts of the Client: Limitation on
Liability. In no event shall the Consultant be authorized or required by
this Agreement to represent or make management decisions for the Client.
The Consultant shall, under no circumstances, be made liable for any
expense incurred or loss suffered by the Client as a consequence of such
decisions by the Client or any affiliates or subsidiaries of the Client as
a result of services performed by the Consultant hereunder.
CONSULTANT DISCLAIMS ANY AND ALL WARRANTIES RESPECTING THE SERVICES,
INCLUDING ALL IMPLIED WARRANTIES OF, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR OTHERWISE
RELATING TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, HOWEVER
CAUSED, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OR
LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL CONSULTANT'S LIABILITY FOR
DAMAGES UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF HOW ARISING,
EXCEED THE AMOUNT OF CASH COMPENSATION PAID TO CONSULTANT HEREUNDER.
11. Indemnification. Each party agrees to indemnify and hold harmless
the other party, as well as each of its officers, directors, employees,
agents and each person, if any, who controls that party, against any and
all liability, loss, costs, expenses or damages, including, but not limited
to, any and all expenses reasonably incurred in investigating, preparing or
defending against any litigation or arbitration, commenced or threatened,
directly resulting by reason of any act, neglect, default or omission, or
any untrue or allegedly untrue statement of a material fact, or any
misrepresentation of any material fact, or any breach of any material
warranty or covenant, by that party or any of its agents, employees, or
other representatives, arising out of, or in relation to, this Agreement.
12. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by fax, registered
or certified mail, or by Federal Express or other nationally recognized
overnight couriers to the principal office of each party and addressed to
its principal executive officer at the address set forth on the signature
page to this Agreement. Faxes should be marked for the attention of the
principal executive officer and sent to the fax number set forth on the
signature page to this Agreement.
13. Waiver of Breach. Any waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by such party.
14. Assignment. Neither party may assign this Agreement without the written
consent of the other party.
15. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant to the
laws of the State of New York and that in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with, or
by reason of this Agreement, the laws of the State of New York, without
regard to conflicts of law principles, shall be applicable. The parties
agree to submit all litigation arising hereunder to the state or federal
courts located in Monroe County, New York, and consent to the jurisdiction
and venue of such courts, and further waive any objection that such courts
are an inconvenient forum.
16. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
17. Entire Agreement. Client and Consultant had entered into a Consulting
Agreement dated 5/21/2001 for similar services. By signing this Agreement,
the previous Agreement between NuMark Capital Corporation and Small Town
Radio (OTC: MOLY) becomes unenforceable and null and void and no fees are
due under any prior agreement or understanding. This Agreement constitutes
and embodies the entire understanding and agreement of the parties and
supercedes and replaces all prior understandings, agreements and
negotiations between the parties.
18. Waiver and Modification. Any waiver, alteration, or modification of any of
the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto.
19. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original but all of which, taken together, shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party.
[The signatures of the parties appear on the next page.]
By signing below, the parties agree to the terms of this Agreement and further
certify that their respective signatories are duly authorized to execute this
Agreement.
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Date
NuMark Capital Corporation Worldwide Petromoly, Inc.
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(Client)
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By By
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Name Name
Managing Director Chairman of the Board
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Title Title
Address for notices: Address for notices:
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Fax Number Fax Number
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Telephone Number Telephone Number
