Exhibit 99.06
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and executed as of the
First day of January 1996, by and between VITAFORT INTERNATIONAL CORPORATION, a
Delaware corporation located at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx, 90067("Company"), and XXXX XXXXXX of 0000 Xxxxx Xxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Consultant"), and is made with respect to the
following facts:
A. Consultant represents that he possesses the knowledge and ability to
successfully assist the Company in its strategic planning, capitalization and
acquisition program.
B. The parties have entered into this Agreement for the purpose of setting
forth the terms of consultancy of Consultant by the Company.
C. Company and Consultant believe that it is in their mutual best interests to
enter into a consultant agreement pursuant to the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. SCOPE OF REPRESENTATION. Company grants Consultant permission to act
on Company's behalf in assisting Company in its strategic planning,
capitalization and acquisition program. Consultant's services shall be provided
on a non-exclusive basis. Consultant shall provide his services on a best
efforts basis.
2. CONSULTANT'S EXPENSES. Subject to prior approval of the Company,
Consultant shall provide his services at the Company's expense and at his own
place of business. Consultant agrees that at the expense and prior approval of
the Company, he may be required to travel to assist and advise the Company with
respect to his efforts on behalf of the Company.
3. INDEPENDENT CONTRACTOR; NO POWER TO BIND. Consultant is not an
employee of Company for any purpose whatsoever, but is an independent
contractor. Company is interested only in the results obtained by the
Consultant, who shall have, subject to the terms of this Agreement, sole control
of the manner and means of performing under this Agreement. Consultant does not
have the right or
authority to create a contract or obligation either express or implied, on
behalf of, in the name of or binding upon Company, or to pledge Company's
credit, or to extend credit in the Company's name unless otherwise agreed in
writing. Consultant shall have no right or authority to commit Company in any
manner without the prior written consent of Company.
4. COMPENSATION.
(a) Fee.-- During the first TWO MONTHS of this Agreement,
Company shall pay a monthly fee of two thousand five hundred dollars ($2,500)
per month payable in full on or before the fifth day of each month. Company may
pay Consultant an additional fee or bonus at the sole and absolute discretion of
Company's Board of Directors.
(b) Option.-- Consultant shall be granted a one year option to
purchase shares of the Company in the amount of TWO HUNDRED THOUSAND SHARES
(200,000) at an excercise price of FIFTEEN CENTS ($.15) per share. The option
to purchase shares shall be registered under the Securities Act of 1933 or
pursuant to an exemption thereunder as soon as practicable but in no event later
than 90 days from the date of this agreement.
(c) Contingent Fee.-- Consultant shall receive a contingent fee for
materially assisting the Company in any transaction which is undertaken during
the term. The amount of the contingent fee shall be negotiated in good faith on
a case by case basis, may be paid in cash and registered securities and based
upon a "Xxxxxx'x Formula" (i.e. a fee of 5% of the first million dollars of
consideration paid or received pursuant to a transaction, 4% for the next
million dollars of the transaction, 3% for the next million, 2% for next million
and 1% for each million dollars thereafter).
5. TERM. This Agreement shall continue in full force and effect for a
period of SIX MONTHS from the date of this agreement; provided that the
provisions and agreements relating to confidentiality and non-circumvention
shall continue in full force and effect for a period of two (2) years from the
date of termination.
6. WARRANTIES AND REPRESENTATIONS. Consultants' advisory services are
provided on a best efforts basis and are based on his personal experience and
expertise. There are no guarantees, warranties or representations of any kind
that Consultant's advise or services will produce any specific results for the
benefit of the Company. Actual results may substantially and materially differ
from those suggested by Consultant. Consultant represents and warrants to
Company that (a) he is under no contractual restriction or other restrictions or
obligations that are inconsistent with the execution of this Agreement, the
performance of his duties and the covenants hereunder, and (b) he is under no
physical or mental disability that would interfere with his keeping and
performing all of the agreements, covenants and conditions to be kept or
performed hereunder.
7. NOTICE. Except as otherwise specifically provided, any notices to be given
hereunder shall be deemed given upon personal delivery, upon the next business
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day immediately following the day sent if sent by overnight express carrier, or
upon the third business day following the day sent if sent postage prepaid by
certified or registered mail, return receipt requested, to the following
addresses (or to such other address or addresses as shall be specified in any
notice given):
In case of Company: Vitafort International Corporation
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xx. 90067
Attn.: Xxxx Xxxxxxx
In case of Consultant: Xxxx Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx
00000
8. WAIVER OF BREACH. The waiver by a party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of this Agreement.
9. ASSIGNMENT. Except as otherwise provided herein, the rights and benefits
of the parties contained in this Agreement shall inure to the benefit of and be
binding upon the successors, assigns, administrators, and personal
representatives of the parties hereto.
10. COMPLIANCE WITH LAW. During the Term, Consultant shall comply with all
laws and regulations applicable to Consultant in the conduct of his business.
11. INCORPORATION BY REFERENCE. The Confidentiality Agreement attached hereto
as an exhibit is incorporated herein by reference in its entirety.
12. ARBITRATION. Any controversy or claim arising out of or relating to
any interpretation, breach or dispute concerning any of the terms or provisions
of this Agreement, which disagreement is not settled within thirty days after it
arises, shall be settled by binding arbitration in Los Angeles California in
accordance with the laws of the State of California and under the rules then
obtaining of the American Arbitration Association and judgment upon the award
rendered in said arbitration shall be final and may be entered in any court of
the State of California having jurisdiction thereof. Any party hereto may apply
for such arbitration. The parties incorporate the provisions of California Code
of Civil Procedure, Sections 1283.05 and 1283.1 (relating to discovery) into
this agreement and make those provisions a part of and applicable to any
proceedings, including arbitration arising under the terms of this Agreement.
13. ATTORNEYS FEES. In the event that an action at law or in equity is
brought to enforce the provisions of this Agreement or to prevent a breach
thereof, the successful party in such action or arbitration proceeding shall be
entitled to an award
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of attorney's fees and other costs as shall be established by the court or
pursuant to a binding arbitration proceeding.
14. HOLD HARMLESS & INDEMNIFICATION.-- The Company shall hold Consultant
harmless from and against and shall indemnify the other for any liability, loss,
cost, expenses or damages howsoever caused by reason of any injury or loss
sustained by or to any person or property by reason of any alleged wrongful act,
misrepresentation or omission and it shall pay all sums to be paid or discharged
in case of any action or any such damages or injuries relating to the subject
matter of this Agreement or services or obligations rendered hereunder.
15. APPLICABLE LAW. This Agreement shall be construed as a whole and in
accordance with its fair meaning. This Agreement shall be interpreted in
accordance with the laws of the State of California.
16. ENTIRE AGREEMENT. This Agreement, together with the documents and exhibits
referred to herein, embodies the entire understanding among the parties and
merges all prior discussions or communications among them, and no party shall be
bound by any definitions, conditions, warranties, or representations other than
as expressly stated in this Agreement, or as subsequently set forth in writing,
signed by the duly authorized representatives of all of the parties hereto.
17. NO ORAL CHANGE; WAIVER. This Agreement may only be changed, modified, or
amended in writing by the mutual consent of the parties hereto. The provisions
of this Agreement may only be waived in or by a writing signed by the party
against whom enforcement of any waiver is sought.
18. CONFLICT OF INTEREST. Company acknowledges that, in the course of
Consultant's non-exclusive services and the term, Consultant may now or in the
future have certain potential or actual conflicts of interest. Any such actual
or potential conflicts are hereby waived.
19. SEVERABILITY. If any provision of this Agreement shall be held or deemed
to be, or shall in fact be, inoperative or unenforceable as applied in any
particular case because it conflicts with any other provision or provisions
hereof, or any constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses, sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
20. INTERPRETATION. Each of the parties acknowledge that it has been
represented by independent counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement, and that it has executed the
same with consent and upon the advice of said independent counsel. Each party
and its counsel cooperated in the drafting and preparation of this Agreement and
the documents referred to
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herein, and any and all drafts relating thereto shall be deemed the work product
of the parties and may not be construed against any party by reason of its
preparation. Accordingly, any rule of law, including but not limited to any
decision that would require interpretation of any ambiguities in this Agreement
against the party that drafted it, is of no application and is hereby expressly
waived. The provisions of this Agreement shall be construed as a whole and in
accordance with its fair meaning to affect the intentions of the parties and
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
COMPANY: VITAFORT INTERNATIONAL CORPORATION
By /s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
CONSULTANT: XXXX XXXXXX
/s/ Xxxx Xxxxxx
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