CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement"), is effective as of this 9th
day of August 2005 by and between: Xxxxxxx X. Xxxxxxxx, (the "Consultant"), with
principal offices at 00000 Xxxxx 00xx Xxxxx, Xxxxxxxxxx, XX 00000 and
MotorSports Emporium, Inc., (the "Company"), with offices at 00000 X. Xxxx
Xxxx., Xxxxx 0, Xxxxxxxxxx, XX 00000.
WITNESSETH
WHEREAS, the Consultant has entered into a separate definitive licensing
agreement with the Company allowing the Company the exclusive right to
manufacture, distribute, market, advertise, engage in public relations
activities and sell Prospeed GS610; and
WHEREAS, the Company requires and will continue to require consulting
services relating to distribution, sales, advertising, marketing and strategic
planning in connection with "Prospeed Motorsport" & "Prospeed", trade name
"GS610 Maximum Performance Brake Fluid" and its derivatives (hereinafter
referred to as "Prospeed GS610") and trade xxxx of "Brake Deeper. Harder.
Longer!" (collectively known as the "Product") which is in the high performance
brake fluid business, together with advisory and consulting related to business
operations in the United States and International;
WHEREAS, Company desires to engage the Consultant as an Independent
Contractor to include but not limited to the following duties:
1. Manage all aspects and vendors for the successful production of
Prospeed GS610;
2. Manage and expand national and international distribution network;
3. Manage and be responsible for all marketing/advertising/public
relations materials, production of, distribution, strategies, co-op
development;
4. Be responsible for all sales activities;
5. Be responsible for disclosing to appropriate customers
contractor/representative relationship with Company;
WHEREAS, the Consultant is qualified to provide the Company with the
aforementioned consulting services and is desirous to perform such services for
the Company; and
WHEREAS, the Company wishes to retain Consultant to provide these
consulting services to the Company and wishes to contract with the Consultant
regarding the same believing it to be in its best interest.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
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1. APPOINTMENT.
1.1 The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
2.1 This Agreement is effective as of the date of execution of this
Agreement (the "Effective Date"), and shall terminate on August 9,
2010 unless earlier terminated in accordance with paragraph 9.1 herein
or extended as agreed to between the parties.
3. SERVICES.
3.1 During the term of this Agreement, Consultant and/or associates shall
provide advice to undertake for and consult with the Company
concerning management, marketing, consulting, strategic planning,
corporate organization and structure in connection with the operation
of the businesses of the Company, expansion of services and business
opportunities, and shall review and advise the Company regarding its
overall progress, needs and condition. The services of Consultant
shall be exclusive to the Company and Consultant shall dedicate
reasonable time for its projects. The parties hereto acknowledge and
agree that Consultant cannot guarantee the results or effectiveness of
any of the services rendered or to be rendered by Consultant. Rather,
Consultant shall conduct its operations and provide its services in a
professional manner and in accordance with good industry practice.
3.2 Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) The implementation of strategic planning to fully develop and
enhance the Company's assets, general resources, products and services
and assist in the creation of all marketing brochures or other sales
materials relating to the Product;
(b) Advise the Company relative to its operational needs,
relating specifically to the Product and related matters;
(c) Consultant shall be available for advice and counsel to the
officers and directors of the Company at such reasonable and
convenient times and places as may be mutually agreed upon. Except as
foresaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by Consultant
to any specific service, shall be determined at the sole discretion of
Consultant. It is agreed all information and materials produced for
the Company by or at the direction of the Consultant shall be the
joint property of Company and Consultant. However this information and
materials may not be used by the Consultant for a purpose in direct or
indirect conflict and/or competition with the Company. Company agrees
to not use any information and materials produced during the period of
this agreement outside the term of said agreement; and,
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(d) Consultant shall provide Company with all data and materials
to include contracts, agreements, arrangements or any material
information pertaining towards the manufacturing, marketing and
selling of Product.
4. DUTIES OF THE COMPANY.
4.1 The Company shall supply Consultant, once a month , updates on any
financial transactions, products and services and its operations as it
related to the Product and as reasonably requested by Consultant, and
Company shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to
this paragraph.
5. COMPENSATION.
5.1 Upon execution of this Agreement and in settlement for its services
hereunder, Consultant shall receive the following:
(a) 2,500,000 restricted (12 month sell/transfer restriction)
common shares of Company's common stock subject to adjustment for
stock reverse, stock split or stock dividend in a manner
equal/consistent with all other common stock shareholders.
(i) Stock to be received on the 181st day from the effective
date of this Agreement provided Consultant has provided 180 days
of continuous consulting to Company.
(b) 3,000,000 restricted (72 month sell/transfer restriction)
common shares of Company's stock subject to adjustment for stock
reverse, stock split or stock dividend in a manner equal/consistent
with all other common stock shareholders.
(i) Consultant to take possession only if the Company
extends this Consulting Agreement for an additional 5 years from
the Effective Date of this Agreement. Upon execution of a second
5 year-term the Consultant would need to perform 180 days of
continuous consulting to Company to receive the shares in the
Company's stock. Said common shares will be issued within 30 days
of the effective date of this Agreement and held for distribution
until the second 5 year agreement is signed between the parties.
In the event, the second 5 year agreement is not signed; the
3,000,000 shares will be cancelled and Consultant will not have
any rights to these shares
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(c) Company shall pay Consultant a ten (10%) percent monthly
commission collected on gross revenues for actual Product sold.
Commissions shall be disbursed to Consultant within ten (10) days
after the end of each calendar month in which payment for sold
product has been received.
5.2 If within 6 months after entering into this Agreement Consultant is
unsuccessful selling product to produce net revenue that equals or
exceeds the costs Company has incurred, despite good faith efforts by
the Company consistent with common standard business practices to
support the promotion of Prospeed GS610, Consultant's commissions will
be reduced to 2% until Company recoups their entire costs related to
production and/or promotional efforts.
5.3 If at anytime, after the 6 months but prior to end of the first 5 year
term, Consultant desires to no longer represent Company, Consultant
will agree to sign a non-compete and confidentiality agreement with
regard to Prospeed GS610.
5.4 The Consultant is responsible for all out-of-pocket expenses,
including, without limitation, communications, computer, internet and
postage. Consultant is responsible for all travel expenses transpired
by Consultant.
6. REPRESENTATION AND INDEMNIFICATION.
6.1 The Consultant shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material
information and data which it supplies to Company and acknowledges its
awareness that Company will rely on such continuing representation in
disseminating such information and otherwise performing its business
functions. The Company, in the absence of notice in writing from
Consultant, will rely on the continuing accuracy of material,
information and data supplied by Consultant. The Consultant agrees to
indemnify, hold harmless and defend Company, its agents or employees
from any proceeding or suit which arises out of or is due to the
inaccuracy or incompleteness of any material or information supplied
by the Consultant to Company. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned
services.
7. COMPLIANCE WITH SECURITIES LAWS.
7.1 The Company understands that any and all compensation outlined in
Section 5 shall be paid solely and exclusively as consideration for
the aforementioned consulting efforts made by Consultant on behalf of
the Company as an independent contractor. Consultant is a natural
person. Any monies transferred to Company by Consultant herein is not
made with the intent to raise capital or to provide the Company with
capital. Consultant has been engaged to provide the Company with
traditional business, management, technical and operational
consulting, and related business services. Consultant's engagement
does not involve the promotion or marketing of the Company's
securities (including it's common stock), nor does it involve raising
money for the Company.
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8. CONFIDENTIALITY
8.1 Consultant will not disclose, without the consent of the Company, any
financial or business information concerning the business, affairs and
plans of the Company which Consultant may receive from the Company,
provided such information is plainly marked in writing by the Company
as being confidential (the "Confidential Information"). Consultant
will not be bound by the foregoing limitation in the event (i) the
Confidential Information is otherwise disseminated and becomes public
information, or (ii) Consultant is required to disclose the
Confidential Information pursuant to a subpoena or other judicial
order.
9. MISCELLANEOUS.
9.1 Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be
effective thirty (30) calendar days from the date of such notice. This
Agreement shall be terminated immediately upon written notice for
material breach of this Agreement. Upon termination, and fees or
expenses due to Consultant shall become immediately payable.
9.2 Modification: This Consulting Agreement and the license agreement of
same date set forth the entire understanding of the Parties with
respect to the subject matter hereof. This Consulting Agreement may be
amended only in writing signed by both Parties.
9.3 Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or
by facsimile transmission at the address of such Party set forth above
or to such other address or facsimile telephone number as the Party
shall have furnished in writing to the other Party.
9.4 Waiver: Any waiver by either Party of a breach of any provision of
this Consulting Agreement shall not operate as or be construed to be a
waiver of any other breach of that provision or of any breach of any
other provision of this Consulting Agreement. The failure of a Party
to insist upon strict adherence to any term of this Consulting
Agreement on one or more occasions will not be considered a waiver or
deprive that Party of the right thereafter to insist upon adherence to
that term of any other term of this Consulting Agreement.
9.5 Assignment: The Agreement is not assignable by either party unless
agreed in writing.
9.6 Severability: If any provision of this Consulting Agreement is
invalid, illegal, or unenforceable, the balance of this Consulting
Agreement shall remain in effect, and if any provision is inapplicable
to any person or circumstance, it shall nevertheless remain applicable
to all other persons and circumstances.
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9.7 Disagreements: Any dispute or other disagreement arising from or out
of this Consulting Agreement shall be submitted to arbitration under
the rules of the American Arbitration Association and the decision f
the arbiter(s) shall be enforceable in any court having jurisdiction
thereof. Arbitration shall occur only in Maricopa County, AZ. The
interpretation and the enforcement of this Agreement shall be governed
by Arizona Law as applied to residents of the State of Arizona
relating to contracts executed in and to be performed solely within
the State of Arizona. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled
to recover that Party's reasonable attorney's fees incurred (as
determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
For and on behalf of:
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx, an Individual
MotorSports Emporium, Inc.
/s/Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Chief Executive Officer
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