Exhibit 10.7
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
effective the 1st day of January 1, 2000, by and among FULL TILT SPORTS, INC., a
Colorado corporation (the "Company") and XXXXX XXXXXXXX (the "Consultant").
RECITALS
WHEREAS, the Consultant possess certain knowledge and skills that are
beneficial to the business of the Company;
WHEREAS, the Company desires to retain the services of the Consultant to
assist in the management of the Company.
NOW THEREFORE, in consideration of the Recitals that shall be deemed to be
a substantive part of this Agreement and the mutual covenants, promises,
agreements, representations and warranties contained in this Agreement, the
parties hereto do hereby covenant, promise, agree, represent and warrant as
follows:
1. Consulting Services. Consultant agrees to provide consultation services
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to the Company to assist in the management of the Company. The Consultant shall
be available to the Company during normal business hours, subject to reasonable
availability at mutually agreeable times. The Consultant shall determine when
and where the Consultant shall provide said services, provided that Consultant
shall devote 220 hours per year.
2. Term. The term of this Agreement shall commence of the date of the first
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written above, and shall continue for twenty four (24) consecutive months from
the date of commencement. At the expiration of the term of this Agreement, the
parties may upon written agreement, renew this Agreement for an additional
twelve (12) month term.
3. Consulting Fees.
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a) For year one of the Consulting Agreement, upon execution of this
Agreement, the Company shall pay the Purchaser compensation in the form of
315,201 shares of Common Stock of the Company, as provided in Section 1.1 (c) of
the Private Placement Subscription Agreement executed on even date herewith. The
Company shall send a Form 1099 to Consultant for such shares in the amount of
$117,844.
b) During year two of the Consulting Agreement, the Company shall pay the
Purchaser compensation equivalent to $220,000, payable in the sole discretion of
the Company either in cash or in Common Stock of the Company valued at 75% of
the average between the ask and bid price of the Common Stock of the Company at
year end December 31, 2000, payable within 5 days of January 1, 2001.
4. Expenses. The Consultant is authorized to incur reasonable expenses for
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promoting the business of the Company, including his out-of-pocket expenses for
entertainment, travel and similar items. The Company shall reimburse the
Consultant for all such expenses on the presentation by the Consultant, from
time to time, of an itemized account of such expenditures in accordance with the
guidelines set forth by the Internal Revenue Service for travel and
entertainment.
5. Non-exclusivity. This Agreement is nonexclusive and does not bind the
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Consultant from performing services of any kind or nature for any other entities
or concerns, or from entering into any other business of any kind or nature.
6. Health and Life Insurance Benefits. The Company shall not provide the
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Consultant participation in the Company's group health insurance plan, group
term life plan or group disability insurance during the term of this agreement
or any time thereafter.
7. Independent Contractor Status. Consultant shall be an independent
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contractor with respect to all consulting services provided to the Company, and
shall have no authority to bind the Company in any manner. The Company shall not
be responsible for payment of FICA/FUTA or for providing workers' compensation
insurance for Consultant. The Company shall not withhold in respect of any state
or federal income taxes on account of Consultant's compensation. Consultant
shall make all arrangements necessary for timely payment of all the foregoing on
Consultant's own account.
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8. Confidential Information. Throughout the duration of Consultant's
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service the Consultant shall be privy to a substantial amount of data,
information and knowledge which is the proprietary and confidential property of
the Company. For the purposes of this Agreement, "trade secret or confidential
or proprietary information" means any information concerning the Company or its
business which Consultant learned during the Consultant's services at the
Company and which is not generally known or available outside of the Company;
such information includes, without limitation, information, whether written or
otherwise, regarding the Company's earnings, expenses, manufacturing processes,
material sources, equipment sources, customers and prospective customers,
business plans, strategies, buying practices and procedures, prospective and
executed contracts and other business arrangements. Consultant acknowledges that
Consultant shall not either directly or indirectly use, disclose or communicate
to any person or entity any trade secret or confidential or proprietary
information of the Company for any purpose at all whether during or after the
term of this Agreement, except to the extent any such information becomes
generally known to the public through no fault of Consultant.
9. General Provisions.
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9.1 Entire Agreement. This Agreement and the Exhibits incorporated herein
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constitute the entire understanding of the parties with regard to this
Agreement. There are no representations, promises, warranties, covenants or
undertakings other than those expressly set forth herein. No modification or
amendment of this Agreement shall be binding unless executed in writing by all
parties.
9.2 Assignment, Successor and Assigns. Neither this Agreement, nor any
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rights hereunder shall be assignable by any party without the prior written
consent of each of the other parties. This Agreement shall ensure to the benefit
of and be binding upon the parties and their respective successors and permitted
assigns.
9.3 Headings. The subject headings of the paragraphs and subparagraphs of
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this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of the provisions of this
Agreement. Singular terms shall include the plural, and plural terms shall
include the singular.
9.4 Notices. Notices required or authorized hereunder shall be deemed given
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sufficiently if in writing and delivered in person, sent by registered or
certified mail, return receipt requested and postage prepaid, or by facsimile to
the addresses on record with the Company unless and until one party notifies the
other party of any change of address.
9.5 Severability. In the event that one or more of the provisions of this
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Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
9.6 Waivers. No waiver of any provision of this Agreement shall be deemed a
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waiver of any other provision, nor shall any single waiver constitute a
continuing waiver. The failure of any party as to seek redress for violation of,
or as to insist upon the strict performance of any covenant or condition of this
Agreement, shall not prevent a subsequent act which would have originally
constituted a violation, from having the effect of an original violation.
9.7 Time of Essence. Time is of the essence of each provision of the
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Agreement.
9.8 Governing Law. This Agreement shall be governed by and interpreted and
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enforced in accordance with, the laws in force in the State of Colorado. Each
party hereto irrevocably submits to the non-exclusive jurisdiction of the courts
of the State of Colorado with respect to any matter arising hereunder or related
hereto.
9.9 Counterparts and Facsimiles. This Agreement may be executed in several
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counterparts, and as so executed shall constitute one Agreement, binding on all
parties hereto, notwithstanding that all parties are not signatory as to one
original or the same counterpart. Facsimile signatures are acceptable.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, on the date first above written.
COMPANY: CONSULTANT:
FULL TILT SPORTS, INC.
By: /s/ Xxxxx X. Xxxxxxx /s/ XxXxx Xxxxxxxx
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Xxxxx X. Xxxxxxx, President XxXxx Xxxxxxxx
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