EXHIBIT 10.2
MARKETING CONSULTING AGREEMENT
MARKETING CONSULTING AGREEMENT
This Agreement made this 7th day of May 2003, by and between XXXXXXX X. XXXXXXX,
whose address is 0000 Xxxxxxxxxx, Xxx Xxxxxxx, XX 00000, hereinafter referred to
as "Consultant" and PREMIUM ENTERPRISES, INC., a Colorado corporation, its
agents, successors or assigns, hereinafter referred to as "PREMIUM" or "Client",
whose address is 0000 Xxxxx Xxxxxxxxx, Xxxx Xxxx, XX 00000.
Whereas Consultant is in the business of providing consulting services to
businesses in an effort to assist companies and whereas Client desires to retain
Consultant for the following purposes:
To develop a focused marketing strategy for Client's core technology.
For and in consideration of mutual benefits, detriments, and promises, and the
cross considerations hereinafter set forth, the adequacy of which is hereby
acknowledged, the parties hereto, PREMIUM and CONSULTANT, collectively "THE
PARTIES", hereby covenant and agree as follows:
1. Services
a. CONSULTANT is hereby engaged by PREMIUM to provide product
development and marketing consulting services for a three month period from
the date hereof.
2. Compensation
a. PREMIUM hereby agrees to pay CONSULTANT for the services set forth
in Paragraph 1, the following non-refundable retainer items:
1. The issuance of 500,000 shares of S-8 free-trading common
stock (such stock shall be issued within one day after the date
hereof).
b. PREMIUM shall pay no out-of-pocket expenses related to the services
set forth in Paragraph 1 above, subject to budget approval prior to
incurring the expense.
3. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior to
the expiration of the term provided herein above, except as follows:
a. Upon the bankruptcy or liquidation of the other party, whether
voluntary or involuntary;
b. Upon the other party taking the benefit of any insolvency law;
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c. Upon the other party having or applying for a receiver appointed
for either party; and/or
d. Mutual consent of the parties.
4. Notices
All notices hereunder shall be in writing and addressed to the party at the
address herein set forth, or at such other address which notice pursuant to this
section may be given, and shall be given by either certified mail, express mail
or other overnight courier service. Notices shall be deemed given upon the
earlier of actual receipt or three (3) business days after being mailed or
delivered to such courier service. Any notices to be given hereunder shall be
effective if executed by and/or sent by the attorneys for THE PARTIES giving
such notice and, in connection therewith, THE PARTIES and respective counsel
agree in giving such notice such counsel may communicate directly in writing
with such party to the extent necessary to give such notice.
5. Attorney Fees
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
reasonable costs incurred as a result of such default including reasonable
attorneys fees, expenses and court costs through trial, appeal and to final
disposition.
6. Time is of the Essence
Time is hereby expressly made of the essence of this Consulting Agreement
with respect to the performance by THE PARTIES of their respective obligations
hereunder.
7. Inurement
This Consulting Agreement shall inure to the benefit of and be binding upon
THE PARTIES hereto and their respective heirs, executors, administrators,
personal representatives, successors, and assigns.
8. Entire Agreement
This Consulting Agreement contains the entire agreement of THE PARTIES. It
is declared by THE PARTIES that there are no other oral or written agreements or
understanding between them affecting this Agreement. This Agreement supercedes
all previous agreements.
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9. Amendments
This Agreement may be modified or amended provided such modifications or
amendments are mutually agreed upon by and between THE PARTIES hereto and that
said modifications or amendments are made only by an instrument in writing
signed by THE PARTIES.
10. Waivers
No waiver of any provision or condition of this Agreement shall be valid
unless executed in writing and signed by the party to be bound thereby, and then
only to the extent specified in such waiver. No waiver of any provision or
condition of this Agreement shall be construed as a waiver of any other
provision or condition of this Agreement, and no present waiver of any provision
or condition of this Agreement shall be construed as a future waiver of such
provision or condition.
11. Non-Waiver
The failure of either party, at any time, to require any such performance
by any other party shall not be construed as a waiver of such right to require
such performance, and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require a full performance hereunder.
12. Construction of Agreement
Each party and its counsel have participated fully in the review and
revision of this Agreement. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in the
interpretation of this Agreement.
13. Non-Circumvention Agreement
PREMIUM agrees, represents and warrants hereby that it shall not circumvent
CONSULTANT with respect to any publisher, corporation or individual, traditional
or in-house, introduced by CONSULTANT to PREMIUM nor with respect to any other
business opportunity proposed by, assisted with or otherwise promoted by
CONSULTANT for the benefit of PREMIUM pursuant to the terms with CONSULTANT for
the purpose of, without limitation, this Agreement and for a period of one (1)
year from the date of execution by THE PARTIES of this Agreement.
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14. Applicable Law
THIS AGREEMENT IS EXECUTED PURSUANT TO AND SHALL BE INTERPRESTED AND
GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF TEXAS FOR WHICH THE COURTS
IN BEXAR COUNTY, TEXAS SHALL HAVE JURISDICTION WITHOUT GIVING EFFECT TO THE
CHOICE OR LAWS OR CONFLICT OF LAWS RULES THEREOF OR OF ANY STATE.
15. Counterparts
This Agreement may be executed in a number of identical counterparts. Each
such counterpart is deemed an original for all purposes and all such
counterparts shall, collectively, constitute one agreement, but, in making proof
of this Agreement, it shall not be necessary to produce or account for more than
one counterpart.
16. Facsimile
A facsimile copy of this Agreement is acceptable.
17. Acceptance of Agreement.
Unless both parties have signed this Agreement within ten (10) business
days of the date listed above, this Agreement shall be deemed automatically
withdrawn and terminated.
IN WITNESS WHEREOF, THE PARTIES have set forth their hands and seal in execution
of this Consulting Agreement this 7th day of May 2003, by and between:
XXXXXXX X. XXXXXXX
/s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Date: 9 May 03
PREMIUM ENTERPRISES, INC.
a Colorado corporation
/s/Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Date: 5/09/03
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