EXHIBIT 10.10
CONSULTING AGREEMENT
AGREEMENT made May 31, 2002 (the "Agreement"), by and between eContent
Inc., a Delaware corporation with its principal place of business at 0000 Xxxx
Xxxxxxx Xxxx. #000, Xx. Xxxxxxxxxx, Xx 00000 ("Client") and Xxxx X. Xxxxxx, an
individual with an address at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
("Consultant"). (The Client and the Consultant are referred to individually in
this Agreement as a "Party" and collectively as the "Parties.)
BACKGROUND
1. Client is a vertically integrated e-commerce marketing company and in
the conduct of such business desires to have marketing and business advisory
services performed for Client by Consultant.
2. Consultant agrees to perform these services for Client under the terms
and conditions set forth in this Agreement.
In consideration of the mutual promises set forth below, and intending to
be legally bound, the Client and Consultant agree as follows:
1. NATURE OF WORK. Consultant will perform consulting and advisory services
(the "Services") for the Client regarding the marketing of Client's vertically
integrated e-commerce services. As a part of Consultant's services, Consultant
shall review, revise and update the Client's current marketing and sales plan
and assist Client in the implementation of such plan. In performance of his
duties under this Agreement, Consultant will report to Client's Board of
Directors as reasonably requested by the Board.
2. TIME DEVOTED TO WORK. In the performance of his obligations under this
Agreement, the services and the hours Consultant is to work on any given day
will be entirely with Consultant's control and Client will rely upon Consultant
to devote such time in providing the Services as is reasonably necessary to
fulfill the spirit and purpose of this Agreement.
3. COMPENSATION. As compensation for the Services, Client will grant
Consultant 1,100,000 shares of Client's common stock ("Common Stock"). Client
will file a registration statement on Form S-8 (the "Registration Statement") on
or before June 5, 2002 registering the Common Stock under the Securities Act of
1933, as amended. Client will issue the Common Stock to Consultant immediately
upon effectiveness of the Registration Statement. The Parties acknowledge and
agree that the Consultant is considered as having earned all the Common Stock
upon its issuance to Consultant.
4. TERM. The term of this Agreement will begin upon the full execution of
this Agreement by both Parties (the "Effective Date") and will continue for
twelve (12) months from the
Effective Date (the "Term"). Client may terminate this Agreement for any reason,
or for no reason, on five (5) days written notice to Consultant. Consultant may
not terminate this Agreement except for reasonable cause upon five days' written
notice to Client, specifying the cause of the termination. If either Client or
Consultant terminate this Agreement under this Section 4, Consultant will not be
required to return any of the Common Stock earned under Section 3, above, to
Client. However, in case of termination, Client and Consultant will continue to
be bound by the non-competition and confidentiality provisions of Section 6.2
for the entire Term, or as provided in Section 6.2, whichever is longer.
5. STATUS OF CONSULTANT. Under this Agreement, Consultant is an independent
contractor and Consultant will not be considered an employee of Client for any
purpose.
6.1 INDEMNIFICATION. Each Party shall indemnify and hold the other Party
and such Party's officers, directors, employees, agents, consultants and
professionals employed by such Party (collectively, "Affiliates") harmless from
and against any and all liabilities, damages, expenses, investigative costs,
other costs and losses (including attorneys' fees and court costs) incurred by
such Party and/or such Party's Affiliates arising out of or in connection with
allegations, claims, counterclaims, demands, charges, or violations of any state
or federal statutes, regulations or common law, negligence or breach of
contract, whether in a civil, criminal, administrative, or other proceeding,
arbitration, mediation, investigation or otherwise, attributable in whole or, to
the extent responsible, in part, to any breach of this Agreement or the actions,
past, present or future, of such Party.
6.2 NON-COMPETITION AND CONFIDENTIALITY. Consultant agrees not to be
employed by or have any interest (except as a shareholder of a public
corporation) in any entity which competes with Client, for the Term. Each of the
Client and the Consultant agree that if, in the course of Consultant's providing
services under this Agreement, either Client or Consultant discloses any
proprietary information regarding or belonging to such Party (the "Disclosing
Party") to the other Party, the Party receiving the proprietary information (the
"Receiving Party") agrees to keep such proprietary information confidential and
agrees further not to use or disclose the Disclosing Party's proprietary
information to any person for a period of five (5) years from the end of the
Term, except: (a) with the written permission of the Disclosing Party; (b) under
subpoena or other legal process, or (c) if the proprietary information is
publicly disclosed by a person not a party to this Agreement or otherwise
becomes part of the public domain. If the Receiving Party is subpoenaed
regarding proprietary information of the Disclosing Party, the subpoenaed
Receiving Party will immediately inform the Disclosing Party in writing so as to
enable the Disclosing Party to obtain a protective order for the proprietary
information. The Parties each acknowledge that the other Party's proprietary
information is a valuable asset of the Disclosing Party and that public
disclosure of such proprietary information would cause the Disclosing Party
irreparable harm; which may have no adequate remedy at law. Therefore, the
Parties agree that the Disclosing Party may bring an action for an injunction or
other equitable relief to prevent disclosure of proprietary information by the
Receiving Party, in addition to any remedy available to the Disclosing Party in
an action at law. The Parties agree and acknowledge that the term "proprietary
information" will be given the broadest possible interpretation allowable in
order to protect the rights of each Party to its proprietary information.
6.3 WAIVER. No term or provision of this Agreement will be deemed waived
and no breach excused, unless such a waiver or consent is in writing and signed
by a duly authorized representative of the Party claimed to have waived or
consented. Any consent by a Party to, or waiver of, a breach by the other Party,
whether expressed or implied, shall not constitute consent to, waiver of or
excuse for any different or subsequent breach.
6.4 ASSIGNMENT. This Agreement is binding upon and inures to the benefit of
the Parties and may not be assigned or delegated, by operation of law or
otherwise, by either Party without the prior written consent of the other Party.
This Section 6.4 does not preclude the merger, consolidation or sale of
substantially all of the assets of Client with or to another corporation, nor
require the prior consent of Consultant to such a transaction, nor shall it
preclude the assignment of Consultant's rights to receive any compensation under
this Agreement. No persons other than the Parties will have any rights or be
entitled to any benefit whatsoever under any term or condition of this
Agreement.
6.5 INSOLVENCY. Each Party shall notify the other Party immediately if it
or he becomes insolvent, becomes the subject of a petition in bankruptcy court,
makes an assignment for benefit of creditors or generally takes any action or is
subject to any proceeding involving the insolvency of such Party.
6.6 NOTICES. Any Party will send any notices or communications under this
Agreement by United States first class, prepaid mail return receipt requested,
by courier requiring a signed receipt of delivery, hand delivered or telecopied
to the Parties' respective addresses as follows:
If to Client: If to Consultant:
eContent Inc. Xxxx X. Xxxxxx
Xx. Xxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxx
Acting Chief Financial Officer Xxxxxx, XX 00000
0000 Xxxx Xxxxxxx Xxxx. #000
Xx. Xxxxxxxxxx, Xx 00000
Either Party may change its or his address by giving the other Party five
(5) days prior notice in writing of the new address.
6.7 MODIFICATION AND HEADINGS. Any modification or amendment to this
Agreement must be in writing, signed by duly authorized representatives of each
Party. Titles or headings of paragraphs are for convenience only and have no
legal significance.
6.8 SEVERABILITY. The invalidity of any provision of this Agreement will
not affect the validity of any other provision. If any one or more of the
provisions contained in this Agreement is held to be excessively broad as to
time, duration, geographical scope, activity or subject, such provision will be
construed, by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law.
6.9 GOVERNING LAW. The validity of this Agreement, its terms and all the
duties, obligations, and rights contained in this Agreement, will be governed by
and interpreted in accordance with the laws and decisions of the State of
Florida.
6.10 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties with respect to its subject matter and supersedes all prior
written agreements, negotiations, representation and proposals, written or oral,
relating to such subject matter.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and
year written above.
ECONTENT INC.
By: /s/ XXXXXXXX XXXXXXXX
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Xxxxxxxx Xxxxxxxx, President
CONSULTANT
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
