Exhibit 10.7
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CONSULTING AGREEMENT
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AGREEMENT, made as of the 3rd day of June 2003 is by and between
Xstream Beverage Group, Inc. (the "Company") and Xxxxx X. Xxxxxxx (the
"Consultant").
WHEREAS, the Consultant has previously served as a member of the
Company's Board of Directors and as an officer of the Company; and
WHEREAS, the Consultant has valuable knowledge and skills and the
Company wishes to rely on the Consultant on an ongoing basis; and
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with the Company's business affairs on a non- exclusive
basis, and the Consultant is willing to undertake to provide such services as
hereinafter fully set forth:
WITNESSETH
NOW THEREFORE, the parties agree as follows:
1. TERM: The term of this Agreement is for one year. Except in the event of the
death, incapacity or "For Cause" this Agreement may not be terminated. Cause is
defined as habitual neglect of duties or responsibilities, conviction of a
felony or if charged with any complaint involving the offer or sale of
securities.
2. NATURE OF SERVICES/DUTIES: The Company hereby engages Consultant to render
the services hereinafter described during the term hereof (its being understood
and agreed that Consultant is free tender the same or similar services to any
other entity selected by it).
(1) Consult with Company as directed concerning on-going strategic corporate
planning, joint ventures and strategic alliances, including any revision of the
Company's client's business plan.
(2) Render advice with respect to expanding and distributing the Company's
product lines.
(3) Assist in negotiation of Company's contracts with suppliers and major
customers when so required by the Company.
(4) Consult with and advise the Company with regards to potential mergers and
acquisitions.
(5) Evaluate the Company's marketing and sales requirements.
The services identified above shall be rendered on an "As Needed"
basis. However, Consultant shall not be required to render more than 40 hours of
service in any calendar month. Services may be provided by the Consultant at his
home.
3. COMPENSATION: It is mutually agreed that the Consultant will be entitled to
compensation of $40,000 per year payable monthly in arrears with the first
payment due July 1, 2003. In the event that any payment is not received by the
10th day of any month following its due date, Consultant may declare the Company
in Default. In the event of a Default, Consultant may demand immediate payment
of all outstanding sums due and owing under this agreement except for
reimbursable expenses.
4. EXPENSES: Consultant shall receive a non-accountable monthly expense
allowance of $550 per month to reimburse Consultant for any auto expenses
incurred in connection with the performance of the services. In addition,
Consultant shall be entitled to reimbursement for all out of pocket expenses.
However, any expenses in excess of $500, exclusive of the car allowance, shall
require the prior approval of the Company.
5. COMPLETE AGREEMENT: This Agreement contains the entire Agreement between the
parties with respect to the contents hereof supersedes all prior agreements and
understandings between the parties with the respect to such matters, whether
written or oral. Neither this Agreement, nor any term or provisions hereof may
be changed, waived, discharged or amended in any manner other than by any
instrument in writing, signed by the party against which the enforcement of the
change, waiver, discharge or amendment is sought.
6. COUNTERPARTS: This Agreement may be executed in two or more counterparts,
each of which shall be an original but all of which shall constitute one
Agreement.
7. SURVIVAL: Any termination of this Agreement shall not, however, affect the
on-going provisions of this Agreement, which shall survive such termination in
accordance with their terms.
8. NOTICE: Any or all notices, designations, consents, offers, acceptance or
other communication provided for herein shall be given in writing and delivered
in person or by registered or certified mail, return receipt requested, directed
to the address shown below unless notice of a change of address is furnished:
If to Consultant:
Xxxxx X. Xxxxxxx
______________
______________
If to Company:
Xstream Beverage Group, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx
9. SEVERABILITY: Whenever possible, each provision of Agreement will be
interpreted in such manner as to be effective and valid under applicable law. If
any provision of this Agreement is held to be invalid, illegal or unenforceable
provision had never been contained herein.
10. MISCELLANEOUS:
(a) All final decisions with the respect to consultation, advice and
services rendered by the Consultant to the Company shall rest exclusively with
the Company, and Consultant shall not have any right or authority to bind the
Company to any obligation or commitment. (b) The parties hereby agree to submit
any controversy or claim arising out of or relating to this Agreement to final
binding arbitration administered by the American Arbitration Association ("AAA")
under its Commercial Arbitration Rules, and further agree that immediately after
the filing of a claim as provided herein they shall in good faith attempt
mediation in accordance with the AAA Commercial Mediation Rules; provided,
however, that the proposed mediation shall not interfere with or in any way
impede the progress of arbitration. The parties also agree that (i) the AAA
Optional Rules for Emergency Measures of Protection shall apply to any
proceedings initiated hereunder; (ii) the arbitrator shall be authorized and
empowered to grant any remedy or relief, which the arbitrator deems just and
equitable in nature, including, but not limited to, specific performance,
injunction, declaratory judgment and other forms of provisional relief in
addition to a monetary award.
(b) In the event of any arbitration or litigation arising out of this
Agreement, the prevailing party shall be entitled to recover all costs including
reasonable attorneys fees.
THIS AGREEMENT HAS BEEN PREPARED FOR THE COMPANY BY THE LAW FIRM OF XXXXXX,
XXXXXXX & XXXXX. CONSULTANT HAS HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT
COUNSEL.
Xstream Beverage Group Inc. Consultant
/s/Xxxxxxxx Xxxxxxxxxx /s/Xxxxx X. Xxxxxxx
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BY: Xxxxxxxx Xxxxxxxxxx Xxxxx X. Xxxxxxx
Chairman
