CONSULTANT AGREEMENT
This Consultant Agreement is effective as of April 16, 1999, by and
between XXXX.XXX, ("NFOX"), and Xxx Xxxxxxx, ("Consultant").
Recitals
WHEREAS, Consultant has been working with NFOX without a written
Consultant Agreement up to the date of this Agreement. Consultant and NFOX
have agreed to finalize the terms of Consultant's employment with NFOX and
reduce those terms to writing in this Agreement.
WHEREAS, Consultant has acquired outstanding and special skills and
abilities and an extensive background in and knowledge of NFOX's business
and the industry in which it is engaged.
WHEREAS, NFOX desires assurance of the continued association and
services of Consultant in order to retain his experience, skills,
abilities, background, and knowledge, and is therefore willing to engage
his services on the terms and conditions set forth below.
WHEREAS, Consultant desires to continue consulting for NFOX and is
willing to do so on those terms and conditions set forth herein.
NOW THEREFORE, in consideration of the above recitals and the mutual
promises and conditions in this Agreement, and other good and valuable
considerations, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. CONSULTANT. NFOX shall contract with Consultant in such capacity or
capacities NFOX's Board of Directors may from time to time prescribe and as
is acceptable to Consultant.
2. CONSULTANT'S DUTIES. Consultant shall act as consultant for product
development and market research for NFOX.
3. DEVOTION OF TIME. During the period of his agreement hereunder
Consultant shall devote such of his business time, interest attention, and
effort to the faithful performance of his duties hereunder, as may be
reasonably necessary and convenient to Consultant to the accomplishment and
fulfillment of those duties. Royal Products, Inc., Desert Health Products,
Inc., Aloe Xxxx Development Corp., and Xxx Dar Corp., Inc.
4. NON COMPETITION DURING TERM OF CONSULTANT. During the agreement
term, Consultant shall devote all of his business time, interest attention,
and effort to the faithful performance of his duties hereunder. However,
Consultant may serve, on the boards of directors of, and hold any other
offices or positions in, companies or organizations which, in the judgment
of NFOX's Board of Directors (the "Board" as expressed in a written Board
Resolution), will not present any conflict of interest with NFOX or
adversely affect the performance of Consultant's duties pursuant to this
Agreement.
5. TERM OF AGREEMENT. Subject to earlier termination as provided in
this Agreement, Consultant shall be employed for a term beginning April 16,
1999, and ending May 1, 2004. This agreement may be extended by and
between the parties upon written modification hereof.
6. LOCATION OF CONSULTANT. Unless the parties agree otherwise in
writing, during the agreement term Consultant shall perform the services he
is required to perform under this Agreement at NFOX's offices to be located
in Las Vegas, Nevada; provided, however, that NFOX may from time to time
require Consultant to travel temporarily to other locations on NFOX's
business.
7. COMPENSATION. NFOX shall pay Consultant in the following amounts
and on the following terms for all services rendered by Consultant in any
capacity during the term of this Agreement, NFOX shall pay Consultant
annual compensation as follows, in equal monthly installments payable on
the 1st of each month, or in such other manner as is the general practice
of NFOX:
7.1 First Year of Consultant - $12,000
7.2 Second Year of Consultant - $12,000
7.3 Third Year of Consultant - $12,000
7.4 Fourth Year of Consultant - $12,000
7.5 Fifth Year of Employment - $12,000
7.6 Stock Options. In addition to the basic compensation provided
for above, NFOX hereby grants to Consultant the right, privilege and option
(the "Stock Option") to purchase 75,000 shares of the common stock $.001
par value, of NFOX (the "Option Shares"), which are to be fully vested and
become exercisable immediately. The exercise price, "Option Price," of the
Option Shares shall be twenty cents ($.20) per share. The Option Price
shall not be adjusted upon the occurrence of a reverse stock split or other
recapitalization that effectively reduces the number of issued and
outstanding shares of Common Stock of NFOX.
The option rights granted hereby shall be cumulative. Upon
becoming exercisable, the option rights shall be exercisable at any time
and from time to time, in whole or in part; provided, however, that options
may be exercised for no longer than five (5) years from the date on which
they vest. The options shall be exercised by written notice directed to
NFOX, accompanied by a check payable to NFOX in the amount of the aggregate
Option Price. NFOX shall make immediate delivery of such purchased shares,
fully paid and non-assessable, registered in the name of Consultant. The
certificates evidencing such shares shall bear the following restrictive
legend, unless and until such shares have been registered in accordance
with the Securities and Exchange Act of 1933, as amended (the "Act"):
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT"), OR
THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF IN ANY MANNER
UNLESS THEY ARE REGISTERED UNDER SUCH ACT AND THE SECURITIES LAWS OR ANY
APPLICABLE JURISDICTIONS OR UNLESS PURSUANT TO ANY EXEMPTION THEREFROM.
NFOX shall use its best efforts to register the Option Shares under the Act
at the earlier of such time as it registers shares issuable pursuant to a
qualified employee stock option plan or such time as it registers shares
beneficially owned by or issued to either or all of the following
individuals:
Except as otherwise provided in subparagraph 7.6, If, and to the extent
that the number of shares of common stock of NFOX shall be increased or
reduced by whatever action, including but not limited to change of par
value, split up, reclassification, distribution or a dividend payable in
stock, or the like, the number of shares subject to the Stock Option and
the option price per share shall be proportionately adjusted. If NFOX is
reorganized or consolidated or merged with another corporation, Consultant
shall be entitled to receive options covering shares of such reorganized,
consolidated, or merged company in the same proportion, at an equivalent
price, and subject to the same conditions. For purposes of the preceding
sentence, the excess of the aggregate fair market value of the shares
subject to the option immediately after any such reorganization,
consolidation, or merger over the aggregate option price of such shares
shall not be more than the excess of the aggregate fair market value of all
shares subject to the Stock Option immediately before such reorganization,
consolidation, or merger over the aggregate option price of such shares,
and the new option or assumption of the old Stock Option shall not give
Consultant additional benefits which he did not have under the old Stock
Option, or deprive him of benefits which he had under the old Stock Option.
Further, nothing contained herein shall prevent NFOX from effectuating a
split or reverse split of the shares of NFOX.
Consultant shall have no rights as a stockholder with respect to the Option
Shares until exercise of the Stock Option and payment of the Option Price
as herein provided. In the event that NFOX enters into an agreement for its
merger with another entity or for the sale or transfer of the business
assets or Capital Stock of NFOX, whereby causing the dissolution of NFOX as
a Corporation, NFOX shall provide reasonable advance notice of the
consummation of such transaction (but in no event less than thirty (30)
days prior to such consummation) to Consultant, and Consultant's Option
Shares, pursuant to subparagraph 7.6, shall fully vest, giving the
Consultant the right to purchase the entire amount of Option Shares at the
"Option Price".
8. BENEFITS. During the agreement term, Consultant shall be entitled to
receive all other benefits of employment generally available to NFOX's
other executive and managerial employees when and as he becomes eligible
for them, including group health and life insurance benefits and an annual
vacation.
8.1 Vacation. Consultant shall be entitled to a paid annual vacation
of three (3) weeks during the first year of agreement term, and four (4)
weeks during any subsequent years; provided however, that vacation time may
not be accumulated and must be taken by the end of the year in which it has
accrued.
8.2 Personal Leave. Consultant shall be entitled, without any
adjustment in his compensation, to fifteen (15) days personal leave in each
fiscal year of agreement term. Personal leave may not be carried over from
one fiscal year to the next.
8.3 Medical and Disability Coverage. Consultant shall have the right
to all medical coverage and long term disability coverage on the same terms
and conditions as provided to other employees of NFOX holding management
positions. It is agreed and understood that NFOX shall obtain reasonable
medical, dental, and liability insurance for the benefit of Consultant and
other members of management as soon hereafter as is practical, and it shall
use its best efforts to maintain such policies at all time during the
agreement term.
8.4 Plans. Consultant shall be entitled to participate in any and all
plans, arrangements, or distributions by NFOX pertaining to or in
connection with any pension, bonus, profit sharing, stock options, and/or
similar benefits for its employees and/or executives, as determined by the
Board of Directors of committees thereof pursuant to the governing
instruments which establish and/or determine eligibility and other rights
of the participants and beneficiaries under such plans or other benefit
programs.
9. EXPENSE REIMBURSEMENT. During the agreement term, NFOX shall reimburse
Consultant for reasonable out-of-pocket expenses incurred in connection
with NFOX's business, including travel expenses, food, and lodging when
away from home, subject to such policies as NFOX may from time to time
reasonably establish for its employees, and/or consultants.
10. INTELLECTUAL PROPERTY. All processes, inventions, patents, copyrights,
trademarks, and other intangible rights ("Intangible Rights") that are
conceived or developed by Consultant, at the written request of NFOX either
alone or with others, during the term of Consultant's agreement shall be
the sole property of NFOX. All other Intangible Rights shall be the sole
property of Consultant.
11. INDEMNIFICATION OF CONSULTANT. NFOX shall, to the maximum extent
permitted by law, indemnify and hold Consultant harmless against expenses,
including reasonable attorney's fees judgements, fines, settlement, and
other amounts actually and reasonably incurred in connection with any
proceeding arising by reason of, or in connection with, Consultant's
agreement by NFOX. NFOX shall advance to Consultant any expense incurred in
defending such proceeding to the maximum extent permitted by law.
12. LIABILITY INSURANCE. NFOX shall purchase and maintain adequate general
liability insurance.
13. TERMINATION BY NFOX. NFOX may terminate this Agreement at any time, if
termination is "For Cause", as hereinafter defined. "For Cause" shall mean
NFOX's termination of Consultant due to an adjudication of Consultant's
fraud, theft, dishonesty to NFOX regarding Consultant's duties or material
breach of this Agreement, if Consultant fails to cure such breach within
ninety (90) days after written notice is given by the Board of Directors to
Consultant and Consultant fails with ninety (90) days of such notification
to commence such cure and thereafter diligently prosecute such cure to
completion. NFOX may terminate this Agreement with ninety (90) days written
notice, in the event Consultant fails to perform Consultant's obligations
pursuant the terms and conditions as set forth herein. In the event of any
termination, not for cause, Consultant shall receive at least 12 months
notice thereof, and shall receive, during such time, all compensation
provided for herein, including payments of Commissions, if any, as set
forth in paragraph 7.
14. TERMINATION BY CONSULTANT. Consultant may terminate this Agreement by
giving NFOX thirty (30) day's prior written notice of resignation. In such
event, Consultant shall receive all compensation provided herein, including
payments of commissions, if any, through the date of termination. In
addition, Consultant shall be entitled to the Stock Option's as provided in
subparagraph 7.6.
15. DEATH OF CONSULTANT. If Consultant dies during the initial term or
during any renewal term of this Agreement, this Agreement shall be
terminated on the last day of the calendar month of his death. NFOX shall
then pay to Consultant's estate any compensation accrued but unpaid as of
the last day of the calendar month in which Consultant dies. NFOX shall
have a continuous obligation to Consultant's estate for the payments as set
forth in Paragraph 8.4, above. Any and all unexercised Stock Option shall
survive Consultant's death and shall be exercisable by Consultant's estate
or its beneficiaries to whom such Stock Options may be distributed in
accordance with the original terms and conditions of any such Stock
Options.
16. AGREEMENT ON BUSINESS COMBINATION OR DISSOLUTION. This Agreement shall
not be terminated by NFOX's voluntary or involuntary dissolution or by any
merger in which NFOX is not the surviving or resulting corporation, or on
any transfer of all or substantially all of NFOX's assets. In the event any
such merger or transfer of assets, the provisions of this Agreement shall
be binding on and inure to the benefit of the surviving business entity or
the business entity to which such assets shall be transferred.
17. TRADE SECRETS AND CONFIDENTIAL INFORMATION:
17.1 Nondisclosure. Without the prior written consent of NFOX,
Consultant shall not, at any time, either during or after the term of this
Agreement, directly or indirectly, divulge or disclose to any person, firm,
association, or corporation, or use for Consultant's own benefit, gain, or
otherwise, any customer lists, plans, products, data, results of tests and
data, or any other trade secrets or confidential materials or like
information (collectively referred to as the "Confidential Information") of
NFOX and/or its Affiliates, as hereinafter defined, provided to or
communicated to Consultant by NFOX, it being the intent of NFOX, with which
intent Consultant hereby agrees, to restrict Consultant from disseminating
or using any like information that is unpublished or not readily available
to the general public.
17.1.1 Definition of Affiliate. For purposes of this Agreement,
the term "Affiliate" shall mean any entity, individual, firm, or
corporation, directly or indirectly, through one or more intermediaries,
controlling, controlled by, or under common control with NFOX.
17.2 Return of Property. Upon the termination of this Agreement,
Consultant, or NFOX, respectively, shall deliver to NFOX, or Consultant, as
applicable, all lists, books, records, data, and other information
(including all copies thereof in whatever form or media) of every kind
relating to or connected with NFOX or Consultant or their Affiliates and
their activities, business and customers, which information or material was
initially acquired by NFOX, or Consultant respectively. Consultant and or
NFOX respectively, shall be allowed to retain any and all information on
products, lists, books, records, data, or other information initially
produced by Consultant or NFOX respectively and provided to the other.
17.3 Notice of Compelled Disclosure. If, at any time, a party hereof
becomes legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigative demand, or similar process or
otherwise) to disclose any of the Confidential Information, such party
shall provide the other party with prompt, prior written notice of such
requirement so that the other party may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this
Agreement. In the event that such protective order or other remedy is not
obtained, that the other party waives compliance with the provisions
hereof, each agrees to furnish only that portion of the Confidential
Information which such party is advised by written opinion of counsel is
legally required and exercise such party's best efforts to obtain assurance
that confidential treatment will be accorded such Confidential Information.
In any event, the compelled party shall not oppose action by the other
party to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Information.
18. VIOLATION OF COVENANTS:
18.1 Injunctive Relief. Each party acknowledges and agrees; that
violation of any of the covenants or Agreements hereof would cause
irreparable injury to the other party, that the remedy at law for any
violation or threatened violation thereof would be inadequate; and that,
therefore, the other party shall be entitled to temporary and permanent
injunctive or other equitable relief.
18.2 Consultant and NFOX recognize that the laws and public policies
of the various states of the United States may differ as to the validity
and enforceability of certain of the provisions contained in this section.
It is the intention of Consultant and NFOX that the provisions of this
section shall be enforced to the fullest extent permissible under the laws
and public policies of each jurisdiction in which such enforcement is
sought, but that the invalidation (or modification to conform with such
laws or public policies) of any provision hereof shall not render
unenforceable or impair the remainder of this section. Accordingly, if any
provision of this section shall be determined to be invalid or
unenforceable, either in whole or in part this section shall be deemed to
delete or modify, as necessary, the offending provision and to alter the
balance of this section in order to render it valid and enforceable to the
fullest extent permissible as provided herein.
19. MISCELLANEOUS:
19.1 Authority to Execute. The parties herein represent that they
have the authority to execute this Agreement.
19.2 Severability. If any term, provision, covenant, or condition of
this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the rest of this Agreement shall remain in full
force and effect.
19.3 Successors. This Agreement shall be binding on and inure to
the benefit of the respective successors, assigns, and personal
representatives of the parties, except to the extent of any contrary
provision in this Agreement.
19.4 Assignment. This Agreement may not be assigned by either party
without the written consent of the other party.
19.5 Singular, Plural and Gender Interpretation. Whenever used
herein, the singular number shall include the plural, and the plural number
shall include the singular. Also, as used herein, the masculine, feminine
or neuter gender shall each include the others whenever the context so
indicates.
19.6 Captions. The subject headings of the paragraphs of this
Agreement are included for purposes of convenience only, and shall not
effect the construction or interpretation of any of its provisions.
19.7 Entire Agreement. This Agreement contains the entire agreement
of the parties relating to the rights granted and the obligations assumed
in this instrument and supersedes any oral or prior written agreements
between the parties. Any oral representations or modifications concerning
this instrument shall be of no force or effect unless contained in a
subsequent written modification signed by the party to be charged.
19.8 Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be submitted to a panel of three (3) arbitrators. The
arbitration shall comply with and be governed by the provisions of the
American Arbitration Association. The panel of arbitrators shall be
composed of two (2) members chosen by Consultant and NFOX respectively and
one (1) member chosen by the arbitrators previously selected. The findings
of such arbitrators shall be conclusive and binding on the parties hereto.
The cost of arbitration shall be borne by the losing party or in such
proportions as the arbitrator shall conclusively decide.
19.9 No Waiver. No failure by either Consultant or NFOX to insist
upon the strict performance by the other of any covenant, agreement, term
or condition of this Agreement or to exercise the right or remedy
consequent upon a breach thereof shall constitute a waiver of any such
breach or of any such covenant, agreement, term or condition. No waiver of
any breach shall affect or alter this Agreement, but each and every
covenant, condition, agreement and term of this Agreement shall continue in
full force and effect with respect to any other then existing or subsequent
breach.
19.10 Time of the Essence. Time is of the essence of this
Agreement, and each provision hereof.
19.11 Counterparts. The parties may execute this Agreement in two
(2) or more counterparts, which shall, in the aggregate, be signed by both
parties, and each counterpart shall be deemed an original instrument as to
each party who has signed by it.
19.12 Attorney's Fees and Costs. In the event that suit be
brought hereon, or an attorney be employed or expenses be incurred to
compel performance the parties agree that the prevailing party therein be
entitled to reasonable attorney's fees.
19.13 Governing Law. The formation, construction, and performance
of this Agreement shall be construed in accordance with the laws of Nevada.
19.14 Notice. Any notice, request, demand or other communication
required or permitted hereunder or required by law shall be in writing and
shall be effective upon delivery of the same in person to the intended
addressee, or upon deposit of the same with an overnight courier service
(such as Federal Express) for delivery to the intended addressee at its
address shown herein, or upon deposit of the same in the United States
mail, postage prepaid, certified or registered mail, return receipt
requested, sent to the intended addressee at its address shown herein. The
address of any party to this Agreement may be changed by written notice of
such other address given in accordance herewith and actually received by
the other parties at least ten (10) days in advance of the date upon which
such change of address shall be effective.
IN WITNESS WHEREOF, the parties have entered into this Agreement on
the date first above written.
CONSULTANT:
DATE:4/16/99 /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
XXXX.XXX
DATE:4/16/99 By:/s/ Xxxx Xxxxx
Xxxx Xxxxx, President
