EXHIBIT 10.13
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is dated as of July 17,
2002 (the "Effective Date") by and between NEW VISUAL CORPORATION, a Utah
corporation (the "Company"), and XXXXXXX X. XXXX ("Consultant").
RECITALS:
WHEREAS, the Company desires to engage the services of the Consultant
for the purpose of performing consulting services on behalf of the Company, and
the Consultant agrees to perform such services, subject to the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Consultant hereby agree as follows:
1. SERVICES. During the term of this Agreement, Consultant shall act in
the best interests of the Company and provide such consulting, advisory and
related services as may be reasonably requested by the Company. At all times the
method of performing the specific duties designated by the Company shall be
within the control of the Consultant. Consultant acknowledges and agrees that he
shall be an Independent Contractor and shall not be an "employee" of the Company
for any purpose. Consultant acknowledges that he shall provide his own welfare
benefits and that the Company shall not provide any welfare benefits to
Consultant. Consultant shall be solely responsible for the payment of all
foreign, federal, state and local sales taxes, use taxes, value added tax,
withholding taxes, income tax, unemployment and workers' compensation insurance
premiums, and similar taxes and charges of any kind with respect to his
compensation and the services provided under this Agreement.
2. TERM AND TERMINATION. The term of this Agreement shall begin on the
Effective Date and terminate one year after the Effective Date; provided,
however, that this Agreement may be terminated at any time by either party upon
thirty days' written notice to the other party.
3. COMPENSATION. In consideration of the services to be rendered by the
Consultant during the term hereof, the Company shall pay Consultant $250,000,
which shall be payable, in full, only if and at such time as Company shall have
received gross revenues in the amount of at least Two Million Two Hundred Fifty
Thousand Dollars ($2,250,000) from the distribution of the Company's motion
picture currently titled "STEP INTO LIQUID."
4. REIMBURSEMENT OF EXPENSES. In addition to the Compensation described
in Section 3 above, Consultant shall be reimbursed by the Company for all
reasonable out-of-pocket disbursements incurred by Consultant in connection with
the performance of his services under this Agreement, including but not limited
to meal, lodging and other travel expenses. Expenses in excess of $1,000 must be
approved in advance by the Chief Executive Officer of the Company.
5. CERTAIN FEDERAL SECURITIES LAW MATTERS. Consultant acknowledges that
he is aware that the federal securities laws prohibit any person who has
received from an issuer material, non-public information concerning the issuer
from purchasing or selling securities of such issuer or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
Consultant acknowledges receipt of and agrees to abide by the Company's xxxxxxx
xxxxxxx policy.
6. COMPANY'S REPRESENTATIONS. Company represents and warrants that it
is free to enter into this Agreement and to perform each of its terms and
covenants. Company represents and warrants that it is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement and that its execution and performance of this Agreement is not a
violation or breach of any other agreements between Company and any other person
or entity. The Company represents and warrants that this Agreement is a legal,
valid and binding agreement of the Company, enforceable in accordance with its
terms.
7. CONSULTANT REPRESENTATIONS. Consultant represents and warrants that
he is free to enter into this Agreement and to perform each of its terms and
covenants. Consultant represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement, and that his execution and performance of this Agreement is not a
violation or breach of any other agreement between Consultant and any other
person or entity. The Consultant represents and warrants that this Agreement is
a legal, valid and binding agreement of the Consultant, enforceable in
accordance with its terms.
8. MULTIPLE COUNTERPARTS. This Agreement may be executed in
counterparts, each of which for all purposes is to be deemed an original, and
all of which constitute, collectively, one agreement.
9. SUCCESSORS; ASSIGNMENT; SURVIVAL. This Agreement and the rights and
obligations under this Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective successors and permitted
assigns. Neither this Agreement nor any rights or benefits under this Agreement
may be assigned by either party to this Agreement without the other party's
prior written consent.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect to
the engagement of the Consultant by the Company and contains all of the
covenants and agreements between the parties with respect thereto. This
Agreement can only be amended by the parties in writing, executed by the party
against whom enforcement of any modifications may be sought.
11. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of California without regard
to conflict of law provisions.
12. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally- recognized overnight carrier or (iii) sent
by registered or certified mail, postage prepaid, return receipt requested,
addressed to the addresses set forth below each party's name on the signature
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page hereto, or to such other address as the party to whom notice is to be given
may have furnished to each other party in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally-recognized overnight courier and (iii) on
the third Business Day following the date on which the piece of mail containing
such communication is posted, if sent by mail. As used herein, "Business Day"
means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
13. THIRD PARTY BENEFICIARY. No person, firm, group or corporation is a
third party beneficiary of this Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed the Agreement as
of the date first mentioned above.
COMPANY:
NEW VISUAL CORPORATION
By: /s/ Xxx Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Chairman
Address: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
CONSULTANT:
/s/ Xxxxxxx X. Xxxx
XXXXXXX X. XXXX
Address: _____________________
_____________________
_____________________
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