CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 11th day of October, 2002 by
and between Vital Living, Inc., hereinafter referred to as "Client", with its
principal place of business at 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 and Xxxx Xxxxxxxxx, with his principal place of business at 0000
Xxxxxxxxxxx Xx. Xxxxxxx,XX 00000 referred to as "Consultant"
RECITALS
WHEREAS, the Consultant possesses skills, knowledge and qualifications
beneficial to the Client.
WHEREAS, in the operation of Client's business affairs, the Client is in
need of the services which Xxxx Xxxxxxxxx provides and wishes to enter into a
business arrangement with Xxxx Xxxxxxxxx to provide such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it
is hereby agreed as follows and will confirm the arrangements, terms and
conditions pursuant to which Xxxx Xxxxxxxxx (the "Consultant") has been retained
to serve as a business consultant to Vital Living, Inc. (also sometimes referred
to as the "Client" or "Company") on a nonexclusive basis as an independent
contractor. The undersigned hereby agree to the following terms and conditions:
AGREEMENTS
1. Terms of Contract. This Agreement will become effective October 17,
2002 and will continue in effect for a period of one year (1) year
unless earlier terminated pursuant to Section 4 of this Agreement.
2. Services to be Performed by Independent Contractor/Consultant
2.1 Duties of Independent Contractor. Contractor shall at the
request of the Client, upon reasonable notice; render the following
services to the Client from time to time.
2.2 Duties of Consultant. Consultant agrees to provide general
business consulting to Client. The Consultant will provide such
consulting services and advice pertaining to the Client's business
affairs as the Client may from time to time reasonably request. Per
the Client's request, the Consultant will provide Client with the
benefits of its reasonable judgment and efforts regarding the
following: corporate structures, general business policy, investor
relations and public relations planning, strategic planning,
including alliance partnerships and acquisitions.
2.3 Independent Contractor Status. It is the express intention of
the parties that Xxxx Xxxxxxxxx be an independent contractor and not
an employee, agent, joint venture or partner of Client. Client shall
have no right to and shall not control the manner or prescribe the
method by which Xxxx Xxxxxxxxx performs the above described
services. Xxxx Xxxxxxxxx shall be entirely and solely responsible
for its own actions and the actions of its agents, employees or
partners while engaged in the performance of services required by
this Agreement. Nothing in this Agreement shall be interpreted or
construed as creating or establishing the relationship of employer
and employee between Client and Xxxx Xxxxxxxxx or any employee or
agent of Xxxx Xxxxxxxxx. Both parties acknowledge that Xxxx
Xxxxxxxxx is not an employee for state or federal income tax
purposes and Xxxx Xxxxxxxxx specifically agrees that is hall be
exclusively liable for the payment of all income taxes, or other
state or Federal taxes that are due as a result of receipt of any
consideration for the performance of services required by this
Agreement. Xxxx Xxxxxxxxx agrees that any such consideration is not
subject to withholding by the Client for payment of any taxes and
Xxxx Xxxxxxxxx directs Client not to withhold any sums for the
consideration paid to Xxxx Xxxxxxxxx for the services provided
hereunder. Xxxx Xxxxxxxxx shall retain the right to perform services
for others during the term of this Agreement. Nothing herein shall
constitute Consultant as an employee or agent of the Client, except
to such extent as might
hereinafter be agreed, Consultant shall not have the authority to
obligate or commit the Client in any matter whatsoever.
2.3 a. Advisor shall not act as an agent for Company and shall not
hold itself out to third parties as if it had apparent or actual
authority to, among other things, contractually bind the Company,
incur liabilities on Company's behalf, or enter into any to her type
of written or oral commitment by or on behalf of the Company.
2.5 Expense. Xxxx Xxxxxxxxx shall bear out-of-pocket costs and
expenses incident to performing the Consulting Services, without a
right of reimbursement from the Client unless such expenses are
pre-approved in writing by the Client.
2.6 Available Time. Consultant shall make available such time as it,
in its sole discretion, shall deem appropriate for the performance
of its obligation under this Agreement.
3. Compensation.
3.1 Consideration. Client and Consultant agree that Xxxx Xxxxxxxxx,
subject to the approval of the Company's Board of Directors, shall
receive sixty eight thousand shares of restricted stock (68,000) of
restricted Vital Living Inc, stock. Twenty thousand shares of
restricted 144 stock of Vital Living Inc., will vest immediately
upon signing this agreement, and the balance will vest at the rate
of four thousand shares per month, on the first day of each month,
starting November 1, 2002.
3.3 Assignment and Termination. This Agreement shall not be
assignable by any party.
4. Termination of Agreement
4.1 Termination on Notice. Notwithstanding any other provisions of
this Agreement, Client may terminate this Agreement at any time by
giving thirty (30) days written notice to the Consultant. Upon Xxxx
Xxxxxxxxx receiving 30 days written notification of termination of
this Agreement by Client, it is to receive full payment for services
and expenses as stated in item 3.1 and 3.2 of this Agreement. Unless
otherwise terminated as provided in this Agreement, this Agreement
will continue in force for a period of one year (1)
4.2 Termination on Occurrence of Stated Event. This Agreement will
terminate automatically on the occurrence of the following event:
(a) bankruptcy or insolvency of Client
(b) non-payment or performance as stated in this Agreement by Client
5. Confidentiality. During the Term of this Agreement and for a period of two
year thereafter, the Consultant shall keep confidential the Client's trade
secrets, information, ideas, knowledge and papers pertaining to the affairs of
the Client. Without limiting the generality of the foregoing, such trade secrets
shall include: the identity of the Client's
customers, suppliers and prospective customers and suppliers; the identity of
the Client's creditors and other sources of financing; the Client's estimating
and costing procedures and the cost and gross prices charged by the Client for
its products; the prices or other consideration charged to or required of the
Client by any of its suppliers or potential suppliers; the Client's sales and
promotional policies; and all information relating to entertainment programs or
properties being produced or otherwise developed by the Client. The Consultant
shall not reveal said trade secretes to others except in the proper exercise of
its duties for the Client, or use their knowledge thereof in any way that would
be detrimental to the interest of the Client, unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Client's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Client or to any
officer, director, employee, stockholder or creditor of the Client, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the , negligence, gross
negligence or willful misconduct of the Consultant or the breach by the
Consultant of any terms of this Agreement is alleged and proven, the This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Client, made by the Consultant without
the prior written approval or authorization of the Client, or which are
otherwise in violation of any applicable law.
7. Client's Liability. The Consultant agrees to defend, indemnify, and hold the
Client harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in defense of the Client)
which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Client, without the prior approval or authorization of the Client
or which are otherwise in violation of applicable law.
8. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Client and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
9. Waiver. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provisions, nor shall any waiver
constitute a continuing wavier. No waiver shall be binding unless executed in
writing by the party making the waiver.
10. Assignment and Binding Effect. This Agreement and the rights hereunder may
not be assigned by the parties (except by operation of law, merger,
consolidation, and sale of assets) and shall be binding upon and inure to the
benefit of the parties and their respective successors, assigns and legal
representatives.
11. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is deemed unlawful or invalid for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of
this Agreement.
12. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Arizona. Any litigation arising
hereunder shall be initiated only in the state of Arizona. The prevailing party
shall be entitled to recover its attorney's fees and costs. This Agreement shall
not be construed against either party hereto in the event of any ambiguities
13. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
14. Further Acts. Each party agrees to perform any further acts and execute and
deliver any further documents that may be reasonably necessary to carry out the
provisions and intent of this Agreement.
15. Acknowledgment Concerning Counsel. Each party acknowledges that it had the
opportunity to employ separate and independent counsel of its own choosing in
connection with this Agreement.
16. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
17. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
VITAL LIVING, INC.
BY:_____________________________________ DATE:_____________
Xxxxxxx Xxxxx, CEO
XXXX XXXXXXXXX
BY:_____________________________________ DATE:____________
Xxxx Xxxxxxxxx,
