CONSULTING AGREEMENT
This
consulting agreement (this “Agreement”) is made the 16th day of
August 2010 by and between Awesome Living, Inc. Corporation (the “Company”) and
Xxxx X. Xxxxxxx (the “Consultant”).
RECITALS
WHEREAS, the Company wishes to
engage the Consultant with respect to certain aspects of its
business;
WHEREAS, the Consultant is
willing to make available to the Company the consulting services provided for in
the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in
consideration of the premises and the respective covenants and agreements of the
parties herein contained, the parties hereto agree as follows:
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1.
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TERM
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The term
of this Agreement shall commence on August 16, 2010 and end on September 15,
2010. The term of this Agreement may be extended upon mutual
agreement between the Company and Consultant.
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2.
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CONSULTING
SERVICES
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(a) Services. Developing
the corporate identity of the Company, which includes, but not limited to the
logo, website, business cards, brochures, letterhead and envelopes, presentation
folders, and other marketing materials; preparing a business plan and investor
presentation; and providing administrative and organizational services on
certain matters relating to corporate governance and Board minutes, stock
issuances and shareholder ledger updates, coordination with the transfer agents,
auditors and attorneys for the purpose of providing requested documentation and
other administrative tasks reasonably requested during the Term, as
needed.
(b) Compensation. In
consideration of the consulting services set forth in paragraph 2 (a), and
subject to the terms and conditions set forth herein the Company hereby agrees
to pay Consultant a consulting fee of $40,000. The consulting fee
shall be payable in cash or shares of the Company’s restricted common
stock. In the case that stock is issued as full or partial payment,
the amount of the payment which is made in stock shall be grossed up to equal
two times the cash amount.
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3.
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CONFIDENTIAL
INFORMATION
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(a) Confidential
Information. In connection with the providing of Consulting
Services, hereunder, the Company may provide the Consultant with information
concerning the Company which the Company deems confidential (the “Confidential
Information”). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement is secret,
proprietary and of great value to the Company, which value may be impaired if
the secrecy of such information is not maintained. The Consultant
further agrees that it will take reasonable security measures to preserve and
protect the secrecy of such Confidential Information, and to hold such
information in confidence and not to disclose such information, either directly
or indirectly to any person or entity during the term of this agreement or any
time following the expiration or termination hereof; provided, however, that the
Consultant may disclose the Confidential Information to an assistant to whom
disclosure is necessary for the providing of services under this
agreement.
(b) Exclusions. For
purposes of this paragraph 3, the term Confidential Information shall not
include Information which (i) becomes generally available to the public other
than as a result of a disclosure by the Consultant or his assistants, agents or
advisors, or (ii) becomes available on a non-confidential basis to the
Consultant from a source other than the Company or its advisors, provided that
such source is not known to the Consultant to be bound by a Confidentiality
agreement with or other obligation of secrecy to the Company or another
party.
(c) Government
Order. Notwithstanding anything to the contrary in this
Agreement, the Consultant shall not be precluded from disclosing any of the
Confidential Information pursuant to a valid order of any governmental or
regulatory authority, or pursuant to the order of any court or
arbitrator.
(d) Injunctive
Relief. The Consultant agrees that, since a violation of this
paragraph 3 would cause irreparable injury to the Company, and that there may
not be an adequate remedy at law for such violation, the Company shall have the
right in addition to any other remedies available at law or in equity, to enjoin
the Consultant in a court of equity for violating the provisions of this
paragraph 3.
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4.
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REPRESENTATION
AND WARRANTIES OF THE COMPANY
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The
Company hereby represents and warrants to the Consultant that as of the date
hereof:
(a) Existence and
Authority. The Company is a corporation duly organized and
validly existing in good standing under the laws of its jurisdiction of
incorporation and has full power and authority to own its respective property,
carry on its respective business as now being conducted, and enter into and
perform its obligations under this Agreement and to issue and deliver the Shares
to be issued by it hereunder. The Company is duly qualified as a
jurisdiction in which it is necessary to be so qualified to transact business as
currently conducted. This Agreement, has been duly authorized by all
necessary corporate action, executed, and delivered by the Company, and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and to
general principals of equity.
(b) Authorization of
Agreement. The Company has taken all actions and obtained all
consents or approvals necessary to authorize it to enter into this
Agreement.
(c) No
Violation. Neither the execution or delivery of this
Agreement, performance by the Company of its obligations under this Agreement,
nor the consummation of the transactions contemplated hereby will conflict with,
violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent or approval of or filing with any person
(other than consent and approvals which have been obtained and filings which
have been made) under, or result in the imposition of a lien on or security
interest in any properties or assets of the Company, pursuant to the charter or
bylaws of the Company, any award of any arbitrator or any agreement (including
any agreement with stockholders), instruments, order, judgment, decree, statute,
law, rule or regulation to which the Company is a party or to which any such
person or any of their respective properties or assets is subject.
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5.
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FILINGS
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The
Company shall furnish to the Consultant, promptly after the sending or filing
thereof, copies of all reports which the Company sends to its equity security
holders generally, and copies of all reports and registration statements which
the Company files with the Securities and Exchange Commission (the
“Commission”), any other securities exchange or the Financial Industry
Regulatory Authority (“FINRA”).
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6.
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SUPPLYING
INFORMATION
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The
Company shall cooperate with the Consultant in supplying such publicly available
information as may be reasonably necessary for the Consultant to complete and
file any information reporting forms.
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7.
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INDEMNIFICATION
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(a) The
Company shall indemnify the Consultant from and against any and all expenses
(including attorneys’ fees), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with such action, suit
or proceeding if (i) the Consultant was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to the
interests of the Company, and with respect to any criminal action or proceeding,
had no reasonable cause or believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as to which
the Consultant shall have been adjudged to be liable for gross negligence or
willful misconduct in the performance or other duties pursuant to this Agreement
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjunction of
liability, but in view of all the circumstances of the case, the Consultant is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
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(b) The
Consultant shall indemnify the Company from and against any and all expenses
(including attorney’ s fees), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Company in connection with such action, suit or
proceeding if (i) the Company was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services pursuant
to this Agreement, and (ii) the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to the
interests of the Company, and with respect to any criminal action or proceeding,
did not reasonably believe his conduct was unlawful. Notwithstanding
the foregoing, the Consultant shall not indemnify the Company with respect to
any claim, issue or matter as to which the Company shall have been adjudged to
be liable for gross negligence or willful misconduct in connection with the
performance of the Consultant’s duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all circumstances of the case, the Company is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
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8.
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INDEPENDENT
CONTRACTOR STATUS
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It is
expressly understood and agreed that this is a consulting agreement only and
does not constitute an employer-employee relationship. Accordingly,
the Consultant agrees that the Consultant shall be solely responsible for
payment of his own taxes or sums due to the federal, state, or local
governments, overhead, workmen’s compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed
that the Consultant is an independent contractor and the Company shall have no
right to control the activities of the Consultant other than during the express
period of time in which the Consultant is performing services hereunder, and
that such services provided hereunder and not because of any presumed
employer-employee relationship. The Consultant shall have no
authority to bind the Company.
The
parties further acknowledge that the Company’s services hereunder are not
exclusive, but that the Consultant shall be performing services and undertaking
other responsibilities, for and with other entities or persons, which may
directly or indirectly compete with the Company. Accordingly, the
services of the Consultant hereunder are on a part time basis only, and the
Company shall have no discretion, control of, or interest in, the Consultant’s
services which are not covered by the terms of the Agreement. The
Company hereby waives any conflict of interest which now exists or may hereafter
arise with respect to Consultant’s current employment and future
employment.
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9.
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NOTICE
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All
notices provided by this Agreement shall be in writing and shall be given by
facsimile transmission, overnight courier, by registered mail or by personal
delivery, by one party to the other, addressed to such other
party. Notice shall be deemed properly given on the date of the
delivery.
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10.
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MISCELLANEOUS
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(a) Waiver. Any
term or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by a written instrument duly executed by such
party.
(b) Entire
Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all
other agreements between the parties with respect to any services to be
performed by the Consultant of behalf of the Company.
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(c) Governing
Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
(d) Binding
Effect. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(e) Construction. The
captions and headings contained herein are inserted for convenient reference
only, are not a part hereof and the same shall not limit or construe the
provisions to which they apply. Reference in this agreement to
“paragraphs” is to the paragraphs in this Agreement, unless otherwise
noted.
(f) Expenses. Each
party shall pay and be responsible for the cost and expenses, including, without
limitation, attorney’s fees, incurred by such party in connection with
negotiation, preparation and execution of this Agreement and the transactions
contemplated hereby.
(g) Assignment. No
party hereto may assign any of its rights or delegate any of its obligations
under this Agreement without the express written consent of the other party
hereto.
(h) No Rights to
Others. Nothing herein contained or implied is intended or
shall be construed to confer upon or give to any person, firm or corporation,
other than the parties hereto.
(i) Counterparts. This
Agreement may be executed simultaneously in two counterparts, each of which
shall be deemed an original, but both of which together shall constitute one and
the same agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same
counterpart.
IN WITNESS WHEREOF, the
parties have executed this Agreement on the date and year first above
written.
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AGREED
AND ACCEPTED:
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COMPANY
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By:
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Xxxx
Xxxxxx
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Its:
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CEO
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AGREED
AND ACCEPTED:
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CONSULTANT
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By:
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Xxxx
X. Xxxxxxx
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An
individual
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