CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") made as of this 23rd day
of February 2000 is by and between XxxxxxxXxxxxx.Xxx, Inc., a Delaware
corporation, with its principal place of business at 0000 X. Xxxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and Xxxx X. Xxxxxxxxx, with his principal
place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, (the
"Consultant").
R E C I T A L S:
A. The Company is a public company with a class of equity securities
publicly traded, and desires to retain Consultant to provide certain consulting
services.
B. Consultant desires to provide certain consulting services to the
Company in accordance with the terms and conditions contained hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. Consulting Services. During the term of this Agreement, Consultant
is hereby retained by the Company to provide marketing, research of Internet
sites and establishment of strategic Internet relationships for the Company.
Consultant shall provide such consulting services as reasonably requested by the
Company during the term of this Agreement, provided that nothing hereunder shall
require Consultant to devote a minimum number of hours per calendar month toward
the performance of services hereunder. The level and scope of services that may
reasonably be requested hereunder shall be dependent, in part, on the amount of
compensation to be paid Consultant by the Company hereunder. Unless otherwise
agreed to by Consultant, all services hereunder shall be performed by
Consultant, in its sole discretion, at its principal place of business or other
offices. Notwithstanding anything contained herein to the contrary, the services
to be performed by Consultant hereunder may be performed by any employee or
consultant to Consultant.
2. Term.The term of this Agreement shall be for one year commencing as
of the date first written above and terminating one day prior to the first
anniversary hereof; provided, however, that this Agreement shall be renewable
for subsequent one year terms, by mutual agreement of the parties in writing, at
least thirty (30) days prior to the expiration of the then current term.
3. Compensation. In consideration for the performance of services
hereunder, the Company hereby grants Consultant an option to purchase 300,000
shares of its common stock at $1.00 per share exercisable at any time or from
time-to-time, in whole or in part, until midnight, March 1, 2005. The Consultant
is responsible for all of his
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incidental out of pocket expenses. The Company hereby agrees to pay on a
pre-approval basis extraordinary expenses incurred by Consultant in connection
with such services to be rendered hereunder. Consultant may, from time to time,
deem it to be in the best interests of the Company to retain an outside
consultant in connection with certain specific acquisitions or proposed
transactions. In such event, the Company hereby agrees to pay any and all fees
and expenses of such consultant, provided that the Company shall first have
agreed to the terms of engagement of any such consultant.
4. Representations of the Company. The Company hereby represents and
warrants that any and all information supplied hereunder to Consultant in
connection with any and all services to be performed hereunder by Consultant for
and on behalf of the Company shall be true, complete and correct as of the date
of such dissemination and shall not fail to state a material fact necessary to
make any of such information not misleading. The Company hereby acknowledges
that the ability of Consultant to adequately provide the aforementioned
consulting services hereunder and/or to initiate and/or effectuate introductions
on behalf of the Company with respect to potential strategic relationships is
dependent upon the prompt dissemination of accurate, correct and complete
information to Consultant. The Company further represents and warrants hereunder
that this Agreement and the transactions contemplated hereunder have been duly
and validly authorized by all requisite corporate action; that the Company has
the full right, power and capacity to execute, deliver and perform its
obligations hereunder; and that this Agreement, upon execution and delivery of
the same by the Company, will represent the valid and binding obligation of the
Company enforceable in accordance with its terms. The representations and
warranties set forth herein shall survive the termination of this Agreement.
5. Indemnification. The Company hereby agrees to indemnify, defend and
hold harmless Consultant, his employees, and affiliates, and their successors
and assigns from and against any and all claims, damages, losses, liability,
deficiencies, actions, suits, proceedings, costs or legal expenses (collectively
the "Losses") arising out of or resulting from: (i) any breach of a
representation, or warranty by the Company contained in this Agreement; or (ii)
any activities or services performed hereunder by Consultant, unless such Losses
were the result of the intentional misconduct or gross misconduct of Consultant;
or (iii) any and all costs and expenses (including reasonable attorneys' and
paralegals' fees) related to the foregoing, and as more fully described below.
If Consultant receives written notice of the commencement of any legal
action, suit or proceeding with respect to which the Company is or may be
obligated to provide indemnification pursuant to this Section 5, Consultant
shall, within thirty (30) days of the receipt of such written notice, give the
Company written notice thereof (a "Claim Notice"). Failure to give such Claim
Notice within such thirty (30) day period shall not constitute a waiver by
Consultant of its right to indemnity hereunder with respect to such action, suit
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or proceeding. Upon receipt by the Company of a Claim Notice from Consultant
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), Consultant may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
Company shall cooperate in the defense of the Third Party Claim and shall
furnish such records, information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be reasonably required
in connection therewith. Consultant shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of Consultant unless the Company shall not have promptly employed
counsel to assume the defense of the Third Party Claim, in which event such fees
and expenses shall be borne solely by the Company. The Company shall not satisfy
or settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of Consultant. If the
Company shall fail with reasonable promptness either to defend such Third Party
Claim or to satisfy or settle the same, Consultant may defend, satisfy or settle
the Third Party Claim at the expense of the Company and the Company shall pay to
Consultant the amount of any such Loss within ten (10) days after written demand
therefore. The indemnification provisions hereunder shall survive the
termination of this Agreement.
6. Amendment. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification, waiver,
amendment, discharge, or change is sought.
7. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or the third
calendar day after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses herein above first
mentioned or to such other address as any party hereto shall designate to the
other for such purpose in the manner hereinafter set forth.
8. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
9. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
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10. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of California, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state or federal courts
located in the City of San Francisco, State of California. The parties hereto
hereby accept the exclusive jurisdiction of those courts for the purpose of any
such suit, action or proceeding. Venue for any such action, in addition to any
other venue permitted by statute, will be San Francisco, California. The parties
hereto hereby irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any judgment entered by any court in respect thereof brought in San Francisco,
California, and hereby further irrevocably waive any claim that any suit, action
or proceeding brought in San Francisco, California, has been brought in an
inconvenient forum.
11. Binding Nature. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their respective
successors and assigns.
12. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
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