Exhibit 10.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 13th day of January, 2004 (this
"Agreement"), at Greenville, South Carolina, by and between XXXXXXX XXXXXXXXX
(hereinafter referred to as "Strenglis") and AMERICAN CONSOLDIATED MANAGEMENT
GROUP, INC. (hereinafter referred to as "Corporation").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein
contained, and specifically, the exclusive initial and continued services to the
Corporation by Strenglis, for the term and with the benefits hereinafter
provided, the parties have agreed as follows:
1. Consulting Arrangement. The Corporation hereby retains the services of
Strenglis as an independent contractor to provide management and consulting
activities hereinafter described commencing on the date hereof and ending no
later than July 13, 2004, unless earlier terminated or extended as provided
herein (such date on which termination occurs being referred to hereinafter as
the "termination date"). This Agreement may be terminated or extended by either
party with thirty (30) days written notice delivered in the form and to the
address(es) as set forth herein.
2. Future Employment. During the term of this Agreement, the parties agree
to negotiate in good faith the full time employment of Strenglis as an executive
officer of the Corporation. It is the parties' good faith expectation that such
employment, if any, will commence on or prior to July 1, 2004, and that such
employment relationship and all terms and conditions thereof (that shall
include, without limitation, the receipt by Strenglis of an ownership interest
in the Corporation constituting a minimum of _____ percent (___%) of the
Corporation's stock, which stock shall be subject to dilution protection) shall
be formalized in a written employment agreement agreed upon and executed by the
parties hereto. This Agreement shall automatically terminate when the parties
execute any such employment agreement.
3. Duties. Strenglis is hereby retained as an independent contractor to act
in the capacity as general manager with respect to all aspects of management of
the business of the Corporation, including the retail and commercial sale,
marketing and development of food related applications of phytogenic technology
to members of the public and the food service industry, inventory control,
budgeting, finance, accounting and operation of computer systems. Specifically,
Strenglis shall:
(a) Accurately represent and offer for sale the products of the
Corporation;
(b) Devote such time and attention as is reasonably required to provide
the services to and for the Corporation pursuant to the provisions of
this Agreement;
(c) Vigorously promote the sale, development and marketing of the products
of the Corporation;
(d) Complete and promptly file with the Corporation all reports which
shall be required by the Corporation from time to time regarding sales
or other business matters;
(e) Abide by and quote prices established by the Corporation for the
products. Strenglis shall not quote any unpublished or irregular
prices unless specifically authorized to do so by the Corporation;
(f) Formulate a full business plan for the Corporation to be presented to
and approved by the Board of Directors of the Corporation; and
(g) Engage, with Board approval, whichever firms and/or individuals he
deems necessary to promote via advertising in various media, and other
acceptable promotional methods the main asset of the Corporation, the
phytogenics technology developed by Dr. Xxxx Xxxxxxx.
Strenglis shall report directly to the board of directors of the
Corporation and said board may, from time to time, assign additional duties to
Strenglis. Any additional duties assigned shall be subject to mutual agreement
between the board and Strenglis.
4. Compensation and Expense Reimbursement. Strenglis, or his estate, in the
event of his death prior to the termination date, shall receive as compensation
for such services provided under this Agreement a sum equal to Ten Thousand and
No/100s ($10,000.00) Dollars per month for the term of this Agreement. Strenglis
shall also receive reimbursement, weekly, for all reasonable out-of-pocket
expenses related to this Consulting Agreement incurred during the term of this
Agreement. However, out-of-pocket expenses in excess of $1,000.00 in any week
shall require written approval of a member of the Corporation's board of
directors prior to being incurred to be eligible for reimbursement.
5. License and Goodwill. Any and all licenses granted to Strenglis to use
Corporation's trademarks and trade names terminate with the termination of this
Agreement. Any enhancement in the value of good will during the term of this
Agreement is for the sole benefit of the Corporation.
6. Termination. The Corporation has the right to terminate this Agreement,
with or without cause, for any reason, by giving Strenglis at least thirty (30)
days advance written notice, said termination notice to become effective on the
date of mailing or otherwise sending such written notice to the address stated
herein. The foregoing right of termination is absolute and the Corporation shall
not be liable for damages of any kind whatsoever to the other by reason of the
exercise of any such right, including by way of example and not by way of
limitation, loss of prospective profits or anticipated sales, expenditures,
leases or other commitments in connection with the performance of this Agreement
or for any other reason whatsoever; provided, however, that the cancellation or
termination of this Agreement shall not operate to relieve Strenglis from the
obligation to repay any loans or advances due the Corporation; and provided,
further, that in the event of cancellation and termination of this Agreement,
the Corporation shall pay Strenglis any compensation earned prior to termination
by Strenglis, including reimbursement for any out-of-pocket expenses incurred,
and approved as necessary.
The Corporation may terminate Strenglis at any time (a) because of fraud,
misappropriation, embezzlement or the like; (b) if he becomes disabled; (c) if
he shall have violated any provision of this Agreement; (d) if he for any reason
fails to perform his activities assigned with reasonable promptness and skill;
or (e) in the event of the death of Strenglis. Any such termination shall not
constitute a breach of this Agreement by the Corporation and Strenglis will only
be paid what amount has been earned up until termination, including
reimbursement for any out-of-pocket expenses incurred, and approved as
necessary. It is understood by the parties that should Strenglis be terminated
prior to the last calendar day of any month during which this agreement is in
effect, that Strenglis shall be entitled to full compensation for that month.
7. Independent Contractor. The relationship between the Corporation and
Strenglis shall be that of an independent contractor and not that of an employee
of the Corporation or any of its affiliates. Nothing contained in this Agreement
shall be construed so as to constitute the Corporation or any of its affiliates
and Strenglis as having an employment, partnership, joint venture or similar
relationship. The parties agree that Corporation shall not withhold nor pay any
unemployment insurance nor any local, state or federal taxes or withholdings on
behalf of or for the benefit of Strenglis. The Corporation shall not maintain
any insurance, either liability or worker's compensation for or for the benefit
of Strenglis.
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8. No Restrictions. Strenglis represents that his engagement hereunder does
not conflict with and will not be constrained nor inhibited by any preexisting
business relationship or agreement to which Strenglis is a party or is otherwise
bound.
9. Applicable Law. This Agreement, its execution, interpretation and
performance, shall be governed by the laws of the State of South Carolina, and
Strenglis does hereby consent to jurisdiction of the laws and the courts of such
state for such purposes and agrees that process may be served upon him in any
manner provided by the laws of the State.
10. Other Activities. It is recognized by the parties hereto that it is
reasonably necessary to the success of the business of the Corporation that
Strenglis not engage in competitive business activities during the term of this
Agreement. Strenglis shall not use any of Corporation's confidential and/or
proprietary information in direct or indirect competition with the business of
Corporation as it exists on the date of termination of this agreement and for
one (1) year following termination of this agreement. Except as expressly
provided herein, nothing shall limit Strenglis from engaging in any employment,
investment or other activities in any business or industry, including but not
limited to, the functional food business.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
the last known address of the recipient.
12. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
prior or subsequent breach of that provision or of any other provision of this
Agreement.
13. Amendment. This Agreement may not be orally amended, but rather may be
amended only by an agreement in writing signed by the party against whom
enforcement of the amendment is sought.
14. Enforceability. If, in any judicial proceeding, a Court shall refuse to
enforce any provision of this Agreement, then such unenforceable provision shall
be deemed eliminated from the provisions hereof for the purpose of such
proceedings to the extent necessary to permit the remaining separate terms to be
enforced in such proceedings.
15. Costs and Attorney's Fees. In the event either party breaches this
Agreement, the other agrees to pay all reasonable expenses incurred in enforcing
this Agreement, including, but not limited to, Court costs and reasonable
attorney's fees.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
IN THE PRESENCE OF:
_________________________ /s/ Xxxxxxx Strengles
---------------------------------
_________________________ Xxxxxxx Xxxxxxxxx
AMERICAN CONSOLIDATED
MANAGEMENT GROUP, INC.
_________________________ BY: /s/ Xxxxxx X. Xxxxxx
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_________________________ Its: Director
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