EXHIBIT 10.11
CONSULTING AGREEMENT MADE AS OF
MAY 28, 2003 WITH XxXXXX & XXXX
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is made as of May 28,
2003, by and between CRYSTALIX GROUP INTERNATIONAL, INC., a Nevada corporation
(the "COMPANY"), and XXXXXX & XXXX, a Delaware corporation ("Consultant").
PRELIMINARY STATEMENTS
A. Consultant represents that it has the expertise to provide
management and financial services and advice to the Company.
B. The Company desires to engage Consultant to act as a consultant on
behalf of the Company and Consultant accepts such engagement, in each case
pursuant to the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing, the mutual promises set forth in
this Agreement, and other good and valuable consideration, the Company and
Consultant hereby agree as follows:
1. SCOPE OF WORK. During the term of this Agreement, Consultant shall
perform the work and render the services set forth in Schedule "A" attached
hereto and made a part hereof (the "SCHEDULE"). Except as expressly provided in
this Agreement, all work to be performed and the services to be rendered by
Consultant hereunder may not be subcontracted or otherwise performed by third
parties on behalf of Consultant without the prior written permission of the
Company which permission shall be in the sole and absolute discretion of the
Company. Consultant shall perform the work and provide the services set forth in
this Agreement at the Company's offices in Las Vegas, Nevada, or as otherwise
approved by the Company.
2. INDEPENDENT CONTRACTOR. Consultant is acting, in performance of this
Agreement, as an independent contractor. Any personnel supplied by Consultant
hereunder are not the Company's employees or agents and Consultant assumes full
responsibility for their acts. Consultant shall be solely responsible for the
payment of compensation of Consultant's employees assigned to perform services
hereunder and such employees shall be informed that they are not entitled to the
provision of any Company employee benefits. The Company shall not be responsible
for payment of workers' compensation, disability benefits, and unemployment
insurance or for withholding or paying employment related taxes for any
Consultant employee, and such responsibilities shall be solely that of
Consultant. In the event that any federal, state or local governmental agency,
any court or any other applicable entity determines that the personnel provided
by Consultant or any permitted subcontractor or assignee of Consultant hereunder
are in fact employees of the Company for any purpose, Consultant agrees to
indemnify and hold the Company harmless from any and all liability, costs and
expenses (including, without limitation, attorneys' fees) associated with such
determination. In the event that any Consultant employee performing services
hereunder is found not to be an employee of Consultant for federal tax purposes,
Consultant shall immediately take appropriate corrective action. Nothing in this
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Agreement shall be construed to create a joint venture arrangement between
Consultant and the Company.
3. TERM. The term of this Agreement shall commence on May 28, 2003 (the
"COMMENCEMENT DATE") and shall continue in full force and effect, unless
terminated earlier in accordance with the provisions of this Agreement or by
agreement of the parties, until the earlier of (a) the date on which Xxxxx Xxxx
accepts a position as an officer of the Company, or (b) May 27, 2006.
4. TERMINATION. Consultant may terminate this Agreement on fourteen
(14) days notice to Company. In the event of any material breach of this
Agreement by either party, the other party may cancel this Agreement by giving
thirty (30) days prior written notice thereof; PROVIDED, HOWEVER, that this
Agreement shall not terminate at the end of said thirty (30) day notice period
if the party in breach has cured the breach of which it has been notified prior
to the expiration of such thirty (30) day period.
5. COMPENSATION. As compensation for the satisfactory performance by
Consultant hereunder, the Company shall pay Consultant a fee of $20,000 per
month that Consultant performs as determined by the Company. Consultant agrees
to invoice the Company on a monthly basis during the term of this Agreement and
the Company shall be obligated to pay such invoices within thirty (30) days of
receipt. Consultant shall also invoice the Company monthly in arrears for
expenses incurred as a result of performing services in accordance with any
Schedule. Such expenses shall be limited to reasonable out-of-pocket expenses
necessarily and actually incurred by Consultant in the performance of its
services hereunder, including retention of legal counsel to provide legal advice
and services to Consultant in connection with Consultant's services to the
Company, provided that (i) the Company has given its written or verbal consent
for any such expense; (ii) the expenses have been detailed on a form acceptable
to the Company; and (iii) Consultant submits supporting documentation. The
charges and/or expenses invoiced in accordance with this paragraph, except for
amounts disputed by the Company, shall be payable by the Company within thirty
(30) days of the Company's receipt of each invoice. Any disputed charges and/or
expenses shall not affect payment of non-disputed charges and/or expenses, in
accordance with the terms of this Agreement. Upon expiration of the term of this
Agreement or in the event that this Agreement is terminated for any reason prior
to the expiration of the term, the balance, if any, of such prepayment shall be
immediately repaid by Consultant to the Company upon such expiration or
termination.
6. CONFIDENTIAL INFORMATION. Consultant recognizes and acknowledges
that in the course of performing services hereunder, Consultant shall have
access to confidential information concerning the business affairs, finances,
properties, methods of operation, product plans, identities or licensors,
distributors, joint venturers and other data of the Company and its subsidiaries
and affiliates. All such information is hereinafter collectively referred to as
"CONFIDENTIAL INFORMATION."
7. NON-DISCLOSURE. Consultant agrees that Consultant will keep in
strictest confidence, both during the term of this Agreement and subsequent to
the expiration or earlier termination of this Agreement, and will not during the
term of this Agreement or thereafter
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disclose or divulge to any person, firm or corporation, or use directly or
indirectly, for its own benefit or the benefit of others, any Confidential
Information. Except as directed by the Company, Consultant will not permit any
person other than the Company, its authorized agents or representative, to
examine and/or make copies of any software, videos, programs, reports or any
materials or documents prepared by Consultant or that come into Consultant's
possession or under Consultant's control by reason of Consultant's services
hereunder, and that upon termination of this Agreement, Consultant will turn
over to the Company all documents, papers and other matter in its possession or
under its control that relate to the Company or its subsidiaries and affiliates.
8. INJUNCTIVE RELIEF. Consultant acknowledges that the unauthorized
disclosure of any Confidential Information will give rise to irreparable injury
to the Company, inadequately compensable in damages. Accordingly, the Company
may seek and obtain injunctive relief against the breach or threatened breach of
the foregoing undertakings, in addition to any other legal remedies which may be
available. Consultant further acknowledges and agrees that the covenants
contained herein are necessary for the protection of the Company's legitimate
business interests and are reasonable in scope and content.
9. WORK RULES. Unless otherwise agreed to by the parties, Consultant's
personnel and Consultant's permitted subcontractors and assignees shall observe
the working rules, holiday schedules and policies of the Company. Consultant's
personnel and Consultant's permitted subcontractors and assignees will comply
with the Company's security regulations particular to each work location.
10. ASSIGNMENT. This Agreement shall be binding upon the parties'
respective successors and permitted assigns. Consultant agrees that any
assignment hereunder shall not relieve Consultant of its obligations hereunder.
11. NOTICES. Notice given by a party under this Agreement shall be in
writing and shall be deemed duly given (i) when delivered by hand, (ii) when
five days have elapsed after its transmittal by registered or certified mail,
postage prepaid, return receipt requested, or two days have elapsed after its
transmittal by nationally recognized air courier service; or (iii) when
delivered by telephonic facsimile transmission (with a copy thereof so delivered
by hand, mail or air courier if recipient does not acknowledge receipt of the
transmission). Notices shall be sent to the addresses set forth below, or
another as to which that party has given notice, in each case with a copy
provided in the same manner and at the same time to the persons shown below:
If to the Company: Crystalix Group International, Inc
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, President
Fax No.: (000) 000-0000
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If to Consultant: Mr. Xxxxx Xxxx
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Fax No.: (000) 000-0000
with a copy to: Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada (without giving effect to
conflicts of law). The sole jurisdiction and venue for any litigation arising
out of this Agreement shall be an appropriate federal or state court located in
the State of Nevada, County of Xxxxx.
13. MODIFICATIONS. No modification, amendment, supplement to or waiver
of this Agreement or any Schedule hereunder, or any of their provisions shall be
binding upon the parties hereto unless made in writing and duly signed by both
parties.
14. WAIVER. A failure of either party to exercise any right provided
for herein, shall not be deemed to be a waiver of any right hereunder.
15. COMPLETE AGREEMENT. This Agreement and each Schedule attached
hereto set forth the entire understanding of the parties as to the subject
matter therein may not be modified except in a writing executed by both parties.
16. SEVERABILITY. In the event anyone or more of the provisions of this
Agreement or of any Schedule is invalid or otherwise unenforceable, the
enforceability of the remaining provisions shall be unimpaired.
17. PUBLICITY. Consultant agrees that it will not, without prior
written consent of the Company in each instance refer to the existence of this
Agreement or any Schedule, in press release, advertising or materials
distributed to prospective customers without the prior written consent of the
Company.
18. REMEDIES. The rights and remedies of the Company as set forth in
this Agreement are not exclusive and are in addition to any other rights and
remedies available to it in law or in equity.
19. HEADINGS. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
COMPANY: CONSULTANT:
CRYSTALIX GROUP INTERNATIONAL, XxXXXX & XXXX, a Delaware corporation
INC., a Nevada corporation
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXXX X. XXXX
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Xxxx X. Xxxxxxxx, President Name: Xxxxx X. Xxxx
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Title: President
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SCHEDULE "A"
SCOPE OF WORK
Advice to the President and CEO of the Company pertaining to all
matters including acquisitions; management; marketing; financial controls and
other financial matters; settlement of disputes with creditors and former
officers and directors; relations with affiliates; and other matters as may be
requested by the Company.
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