EXHIBIT 10.3
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), made effective as of February
9th, 2005 will confirm the understanding between Vista Continental Corp., and
its affiliates and/or subsidiaries (collectively, the "Company") and CLX &
Associates, (`Consultant"), pursuant to which the Company has retained
Consultant in connection with (i) short and long term strategic planning; (ii)
short term crisis management; (iii) short and long term marketing; (iv) meeting
with/selecting qualified companies for joint business ventures; (v) contracting
and interviewing qualified accounting firms and legal counsel; (vi) recruitment
selection of key executives and staff; (vii) internet and website design; and
(viii) recommending and identifying of board members, with all such services
(the "Services") on the terms and subject to the condition set forth herein.
1. Retention. The Company hereby retains Consultant to provide the
Services. Consultant shall devote time and effort, as Consultant deems
necessary to provide the Services.
2. Further Agreements. This Agreement does not constitute any agreement
express or implied, on the part of Consultant or the Company or any
commitment by Consultant, or by the Company to engage Consultant to
underwrite, purchase, place, or cause the placement of any securities or
indebtedness or to advise the Company or negotiate on behalf of the Company
in connection with any sale of any securities or its business or assets or
in connection with any merger, consolidation or similar transaction.
3. Compensation. Company will pay consultant for the services 2,600,000
shares of restricted 144 trading stock.
4. Termination. The term of this Agreement shall be 3 months.
5. Indemnity. The Company agrees to indemnify the Indemnified Persons (as
defined in Schedule as set forth in Schedule A hereto, which Schedule A is
incorporated herein and made a part hereof.
6. Representations and Warranties of the Company. In addition to any
representations and warranties for which provision is made in any other
agreement between the Company and Consultant, the Company represents and
warrants to Consultant that at the commencement of the Services and at the
time of the provision of the Services during the term of this Agreement:
(a) (a) The Company will furnish Consultant and its agents and counsel
with all information concerning the Company that Consultant and its
agents reasonably deem appropriate and agrees to provide Consultant
and its agents with reasonable access to the Company's officers,
directors, accountants, counsel, consultants and other appropriate
agents and representatives. The Company acknowledges the Consultant
and its agents may rely upon the completeness and accuracy of
information and data furnished to any of them
by or on behalf of the Company and that the Company will use its best
efforts to ensure that such information will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(a) (b) All payments of compensation to Consultant shall not cause the
Company to violate any law or regulation applicable to the Company and
that in the event payment is in the form of securities or instruments
convertible to securities, each registration statement, preliminary
and final prospectus required to be filed or previously filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended, and each document required to be
filed or previously filed with the Commission pursuant to the
provisions of the Securities Exchange Act of 1934, as amended,
pertaining to any such securities or instruments convertible into
securities and each appendix, attachment, amendment, or supplement to
any of the foregoing and all related documents, including but not
limited to each related letter of transmittal will not, and no other
report, filing, document, release or communication mailed, delivered,
published, or filed by or on behalf of the Company will, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and
(b) (c) This Agreement had been, and the Services contemplated hereby at
the time of the commencement and consummation thereof, shall be duly
authorized by the Company.
7. Certain Other Covenants of the Company. Other than to the Company's
representatives, the Company agrees that no advice or recommendations
rendered or summarized, excerpted from or otherwise referred to without
Consultant's prior written consent. In addition, other than to the
Company's representatives, Consultant may not be otherwise referred to by
the Company without Consultant's prior written consent or unless required
by law.
8. Survival of Certain Provisions. The compensation provisions contained in
paragraph 3 above, the indemnity contained in paragraph 5 hereof and the
representations and warranties of the Company contained in paragraph 6
hereof and this paragraph 8 shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of
Consultant, or by or on behalf of any Indemnified Person (as such is
defined in Schedule A hereto), and (ii) any termination or expiration of
this Agreement, and shall be binding upon, and shall inure to the benefit
of, any successors, assigns, heirs and personal representatives of the
Company, Consultant, and any and all Indemnified Persons.
9. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (i) to the
Company at: 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
and (ii) CLX & Associates, 0000 Xxxxx Xxx, Xxxxx, XX 00000.
10. Construction. This Agreement, including Schedule A hereto, incorporates
the entire understanding of the parties and supersedes all previous
agreements and shall be governed by, and constructed in accordance with,
the laws of the State of Florida as applied to contracts made and performed
in such State. The Company and Consultant each hereby irrevocably submits
to the exclusive jurisdiction of the Federal and Florida State courts
located in Miami-Dade County, Florida in connection with any suit, action,
or proceeding related to this Agreement or any of the matters contemplated
hereby, irrevocably waives any defense of lack of personal jurisdiction and
irrevocably agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court. The Company and
Consultant each irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court had been brought in an
inconvenient forum. Each Indemnified Person (as defined in Schedule A to
this Agreement) is intended to be a third party beneficiary of the
provisions of paragraph 5 hereof and Schedule A. All obligations of the
Company hereunder and under Schedule A shall be joint and several
obligations of the Company and its affiliates and subsidiaries. In the
event it is necessary for Consultant to file an action in either equity
and/or at law to enforce this Agreement, Company shall be responsible and
obligated to pay Consultant all attorneys' fees and costs, including
appellate.
11. Severability. Any determination that any provision of this Agreement
(including any provision of Schedule A) may be, or is unenforceable shall
not affect the enforceability of the remainder of this Agreement (including
Schedule A)
12. Headings. The paragraph headings in this Agreement have been inserted
as a matter of convenience of reference and are not part of this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an original,
but all of which shall constitute one and the same instrument.
14. Third Party Beneficiaries. This Agreement has been and is made solely
for the benefit of the Company and Consultant (including other Indemnified
Persons for purposed of paragraph 5 hereof and Schedule A only) and
Schedule A hereof and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement.
15. Modification. This Agreement may not be modified or amended except in
writing, duly executed by the parties hereto.
If the foregoing terms correctly set forth our agreement, please confirm
this by signing and returning to Consultant a duplicate copy of this
letter. Thereupon, this letter, as signed in counterpart, shall constitute
our agreement on the subject matter herein.
CLX & Associates Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------
Xxxxxx Xxxxxxxxxx, President
Confirmed and agreed to as of the date first above written:
Vista Continental Corp.
-----------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Schedule A
Indemnity
---------
This Schedule A is a part of and is incorporated into that certain
consulting agreement (the "Consulting Agreement" and together with this Schedule
A, the "Agreement"), Vista Continental Corp., (collectively, the "Company") and
CLX & Associates, ("Consultant"). Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Letter Agreement.
The Company agrees to indemnify and hold harmless Consultant, his
affiliates and their respective directors, officers, agents, and employees
(Consultant and each such entity or person are an "Indemnified Person" from and
against any losses, claims, damages, judgments, assessments, costs, and other
liabilities (collectively "Liabilities"), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel at trial and on appeal (collectively,
"Expenses") as they are incurred in an investigating, preparing, pursuing, or
defending any claim, action, proceeding or investigation, whether or not in
connection with pending or threatened litigation and whether or not any
indemnified person is a party (collectively, "Actions"), (i) caused by, arising
out of or in connection with the Company's breach of this Agreement including,
but not limited to the breach of any representation, warranty or term contained
in the Consulting Agreement, or services rendered or to be rendered by any
Indemnified Person pursuant to the Consulting Agreement. The Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith or willful misconduct of an Indemnified Person in
connection with any of the Services referred to in the Consulting Agreement. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under this Agreement (including, without limitation, its rights under this
Schedule A) and the Consulting Agreement.
Upon receipt by an Indemnified Person of actual notice of an Action against
such Indemnified Person with respect to which indemnity may be sought under this
Agreement, such Indemnified Person shall promptly notify the Company in writing;
provided that failure so to notify the Company shall not relieve the Company
from any liability which the Company may have on account of this indemnity or
otherwise, except to the extent the Company shall have been materially
prejudiced by such failure. The Company shall, if requested by Consultant or at
the Company's option, assume the defense of any such Action including the
employment of counsel selected by the Company that is reasonably satisfactory to
Consultant. Notwithstanding the Company's option to assume a defense of an
Indemnified Person, any Indemnified Person shall have the right to employ
separate counsel in any such Action and participate in the defense thereof, with
the fees and expenses of such counsel shall be at the expense of the Company.
The Company shall not be liable for any settlement of any Action effected
without its prior written consent (which shall not be unreasonably withheld). In
addition, the Company will not, without prior written consent of Consultant,
settle, compromise or consent to the entry of any judgment in or otherwise seek
to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnification
Person is party thereto) unless such settlement, compromise, consent or
termination includes an unconditional release of each Undefined Person from all
Liabilities arising out of such Action.
The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the company
for or in connection with Services rendered or to be rendered by the Indemnified
Person pursuant to this Agreement. The transactions contemplated hereby or any
Indemnified Person's actions or inactions in connection with any such Services
except for Liabilities competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from the gross negligence, bad
faith, or willful misconduct of an Indemnified Person in connection with such
Services.
The reimbursement and indemnity obligations of the Company set forth herein
shall apply to any modification of this Agreement and the Consulting Agreement
and shall remain in full force and effect regardless of any termination of, or
the completion of any Indemnified Person's Services under or in the connection
with, this Agreement and the Consulting Agreement.
