EXHIBIT 10.89
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement"), is made and entered into as of the
1st day of October 2001 ("Effective Date") by and between VITAFORT INTERNATIONAL
CORPORATION, a Delaware corporation ("the Company") and XXXXXXX X. XXXXXXXXX, an
individual ("Consultant").
RECITALS
WHEREAS, Company desires to engage Consultant to perform certain consulting
services for it, and Consultant desires, subject to the terms and conditions of
this Agreement, to perform consulting services for the Company.
THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. ENGAGEMENT BY CONSULTANT.
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Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, and to render at the request of the Company,
independent advisory and consulting services for the Company to the best of his
ability, upon the terms and conditions hereinafter set forth. Such consulting
services shall include, but not be limited to, consulting advice and serving as
President, Corporate Secretary and Chief Financial Officer of the Company and
the performance of duties in connection with these offices..
2. TERM.
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The term of this Agreement shall be October 1, 2001 through September 30,
2003 unless terminated or extended in accordance with provisions of this
Agreement.
3. COMPENSATION.
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In consideration of the services to be rendered pursuant to this Agreement,
Consultant shall be entitled to receive compensation in the amount of Four
Thousand Dollars ($4,000.00) per month or, at the election of Consultant,
compensation may be taken in the form of stock.
4. INDEPENDENT CONTRACTOR.
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It is expressly agreed that Consultant is acting as an independent
contractor in performing his services hereunder, and this Agreement is not
intended to, nor does it create, an employer-employee relationship nor shall it
be construed as creating any joint venture or partnership between the Company
and Consultant. Consultant shall be responsible for all applicable federal,
state and other taxes related to Consultant's consulting fee and Company shall
not withhold or pay any such taxes on behalf of Consultant, including without
limitation social security, federal, state and other local income taxes. Since
Consultant is acting solely as an independent contractor under this Agreement,
Consultant shall not be entitled to insurance or other benefits normally
provided by Company to its employees.
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5. ASSIGNMENT.
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This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skill and qualifications of Consultant.
Neither Consultant nor the Company shall voluntarily, or by operation of law
assign or otherwise transfer the obligations incurred on its part pursuant to
terms of this Agreement without the prior written consent of the other party.
Any attempt at assignment or transfer by either party of its obligations
hereunder, without such consent, shall be null and void.
6. CONFIDENTIALITY.
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Consultant recognizes that during the course of Consultant's activities on
behalf of the Company, he will accumulate certain proprietary and confidential
information and trade secrets used in the Company's business and will have
divulged to him certain confidential and proprietary information and trade
secrets about the business, operations and prospects of the Company, which
constitute valuable business assets of the Company. Consultant hereby
acknowledges and agrees that such information, except for information which is
in the public domain prior to Consultant's receipt thereof, or which
subsequently becomes part of the public domain other than by Consultant's breach
of a confidentiality obligation, or which Consultant can clearly demonstrate was
in his possession prior to receipt thereof from the Company and was developed by
Consultant or received by Consultant from a third-party without breach of such
third-parties confidentiality obligations with respect thereto ("Proprietary
Information") is confidential and proprietary and constitutes trade secret
information and the Proprietary Information belongs to the Company and not to
Consultant. Consultant agrees, to the extent not prohibited by law, that he
shall not, at any time during or after the Term of this Agreement and three
years after the expiration or termination of this Agreement, disclose, divulge
or make known, directly or indirectly, to any person, or otherwise use or
exploit in any manner any Proprietary Information obtained by Consultant under
this Agreement, except in connection with and to the extent required by his
performance of his duties hereunder for the Company. Upon termination of this
Agreement, Consultant shall deliver to Company all tangible displays and
repositories of Proprietary Information.
7. TERMINATION.
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This Agreement may be terminated on the occurrence of any one of the
following events:
7.1 The expiration of the Term hereof;
7.2 The mutual agreement of the parties;
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7.3 At the Company's option, on the last day of the month in which
Consultant dies or becomes permanently incapacitated. 'Permanent incapacity' as
used herein shall mean mental or physical incapacity, or both, reasonably
determined by the Company's Board of Directors based upon a certification of
such incapacity by, in the discretion of the Company's Board of Directors,
either Consultant's regularly attending physician or a duly licensed physician
selected by the company's Board of Directors, rendering Consultant unable to
perform substantially all of his duties hereunder and which appears reasonably
certain to continue for at least six consecutive months without substantial
improvement. Consultant shall be deemed to have 'become permanently
incapacitated' on the date the Company's Board of Directors has determined that
Consultant is permanently incapacitated and so notifies Consultant. Under no
circumstances shall Consultant's incapacity, whether permanent or not, limit
Consultant's right to receive all the compensation set forth in Section 3 above.
7.4 By the Company "with cause," effective upon delivery of written notice
to Consultant given at any time (without any necessity for prior notice) if any
of the following shall occur:
(a) a material breach of this Agreement by Consultant,
which breach has not been cured within thirty (30) days after a
written demand for such performance is delivered to Consultant by the
Company that specifically identifies the manner in which the Company
believes that Consultant has breached this Agreement;
(b) any material acts or events which inhibit Consultant
from fully performing his responsibilities to the Company in good
faith, such as (i) a felony criminal conviction; (ii) any other
criminal conviction involving Consultant's lack of honesty or
Consultant's moral turpitude; (iii) drug or alcohol abuse; or (iv)
acts of dishonesty, gross carelessness or gross misconduct.
8. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF COMPANY.
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The obligations of the Consultant described in this Agreement consist
solely of the furnishing of information and advice to the Company. In no event
shall Consultant be required by this Agreement to act as the agent of the
Company or otherwise to represent or make decisions for the Company. All final
decisions with respect to acts of the Company or its affiliates, whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of the Company or such affiliates and Consultant shall
under no circumstances be liable for any expenses incurred or loss suffered by
the Company as a consequence of such decisions.
9. GENERAL PROVISIONS.
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9.1 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California. Each of the
Parties hereto consents to such jurisdiction for the enforcement of this
Agreement and matters pertaining to the transaction and activities contemplated
hereby.
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9.2 ATTORNEYS' FEES. In the event a dispute arises with respect to this
Agreement, the party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorneys' fees and expenses
incurred in ascertaining such party's rights, in preparing to enforce or in
enforcing such party's rights under this Agreement, whether or not it was
necessary for such party to institute suit.
9.3 COMPLETE AGREEMENT. This Agreement supersedes any and all of the other
agreements, either oral or in writing, between the Parties with respect to the
subject matter hereof and contains all of the covenants and agreements between
the Parties with respect to such subject matter in any manner whatsoever. Each
Party to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any Party, or
anyone herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding. This Agreement may be changed or
amended only by an amendment in writing signed by all of the Parties or their
respective successors-in-interest.
9.4 BINDING. This Agreement shall be binding upon and inure to the benefit
of the successors-in-interest, assigns and personal representatives of the
respective Parties.
9.5 NOTICES. All notices and other communications provided for or permitted
hereunder shall be made by hand delivery, first class mail, telex or telecopied,
addressed as follows:
Party: Company: Vitafort International Corporation
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1800 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxx Xxxxxxx, CEO
Phone: 000-000-0000
Fax: 000-000-0000
Consultant: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxx
Xxxx Xxxx, XX 00000
Phone: 000-000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) business days
after deposit in any United States Post Office in the continental United States,
postage prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged or confirmed, if telecopied.
9.6 UNENFORCEABLE TERMS. Any provision hereof prohibited by law or
unenforceable under the law of any jurisdiction in which such provision is
applicable shall as to such jurisdiction only be ineffective without affecting
any other provision of this Agreement. To the full extent, however, that such
applicable law may be waived to the end that this Agreement be deemed to be a
valid and binding agreement enforceable in accordance with its terms, the
Parties hereto hereby waive such applicable law knowingly and understanding the
effect of such waiver.
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9.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts and when so executed shall constitute one agreement binding on all
the Parties, notwithstanding that all the Parties are not signatory to the
original and same counterpart.
9.8 FURTHER ASSURANCE. From time to time each Party will execute and
deliver such further instruments and will take such other action as any other
Party may reasonably request in order to discharge and perform their obligations
and agreements hereunder and to give effect to the intentions expressed in this
Agreement.
9.9 INCORPORATION BY REFERENCE. All exhibits referred to 'in this Agreement
are incorporated herein in their entirety by such reference.
9.10 MISCELLANEOUS PROVISIONS. The various headings and numbers herein and
the grouping of provisions of this Agreement into separate articles and
paragraphs are for the purpose of convenience only and shall not be considered a
party hereof. The language in all parts of this Agreement shall in all cases be
construed in accordance with its fair meaning as if repared by all Parties to
the Agreement and not strictly for or against any of the Parties.
10. INDEMNIFICATION.
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Both Parties shall indemnify, defend and hold the other Party harmless
against any and all claims, loss, cost, liability, or expense (including,
without limitation, reasonable attorneys' fees and costs) incurred, sustained
and/or paid by either Party arising out of (i) any breach by either Party of any
of its representations, warranties or covenants made under or in connection with
this Agreement, or (ii) the gross negligence or willful misconduct of either
Party in its performance under this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
"COMPANY"
VITAFORT INTERNATIONAL CORPORATION,
a Delaware Corporation
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, CEO
"CONSULTANT"
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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