EXHIBIT 10(d)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
July 1, 1999 between, Xxxxxx X. Xxxxxx, (the "Consultant"),whose principal place
of business is 0-00 000xx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 and Xxx-Xxxxx.xxx,
Inc., (the "Client"), whose principal place of business is 0000 Xxxxx xxx Xxxxx,
Xxxxx X, Xxxxxxxx, XX 00000.
WHEREAS, Consultant is in the business of providing services for management
consulting, business advisory, shareholder information and public relations; and
WHEREAS, The client deems it to be in its best interest to retain Consultant to
render to the Client such services as may be needed; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to the Client.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
CONSULTING SERVICES. The client hereby retains the Consultant as an independent
consultant to the Client and the Consultant hereby accepts and agrees to such
retention. The services to be provided by the Consultant are: see Exhibit A.
INDEPENDENT CONTRACTOR. Consultant agrees to perform its consulting duties
hereto as an independent contractor. Nothing contained herein shall be
considered to as creating an employer-employee relationship between the parties
to this Agreement. The Client shall not make social security, workers
compensation or unemployment insurance payments on behalf of Consultant. 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.
TIME, PLACE, AND MANNER OF PERFORMANCE. The Consultant shall be available for
advice and counsel to the Officers and Directors of the Client as such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant to any
specific service, shall be determined at the sole discretion of the Consultant.
TERM OF AGREEMENT. The term of this Agreement shall be for a period of two years
from the first date written above.
COMPENSATION. See Exhibit B.
TERMINATION.
Consultant's relationship with the Client hereunder may be terminated for any
reason whatsoever, at any time, by either party, upon 3 days written prior
notice.
This Agreement shall automatically terminate upon the dissolution, bankruptcy or
insolvency of the Client or Consultant.
This Agreement may be terminated by either party upon giving written notice to
the other party if the other party is in default hereunder and such default is
not cured with fifteen (15) days of receipt of written notice of such default.
Consultant and Client shall have the right and discretion to terminate this
Agreement should the other party in performing their duties hereunder, violate
any law, ordinance, permit or regulation of any governmental entity, except for
violations which either singularly or in the aggregate do not have or will not
have a material adverse effect of the operations of the Client.
In the event of any termination hereunder all shares or funds paid to the
Consultant through the date of termination shall be fully earned and
non-refundable and the parties shall have no further duties or responsibilities
to each other except that the Client shall be responsible to make any and all
payment if any, due to the Consultant through the date of the termination and
the Consultant shall be responsible to comply with the provisions of section 8
hereof.
CONFIDENTIALITY. The Consultant recognizes and acknowledges that it has and will
have access to certain confidential information of the Client and its affiliates
that are valuable, special and unique assets and property of the Client and such
affiliates. The Consultant will not, during the term of this Agreement,
disclose, without the prior written consent or authorization of the Client, any
of such information to any person, for any reason or purpose whatsoever. In this
regard, the Client agrees that such authorization or consent to disclose may be
conditioned upon
the disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the person to
whom the information is to be disclosed or in compliance with the terms of a
judicial order or administrative process.
CONFLICT OF INTEREST. The Consultant shall be free to perform services for other
persons. The Consultant will notify the Client of its performance of consultant
services for any other person, which could conflict with its obligations under
the Agreement. Upon receiving such notice, the Client may terminate this
Agreement or consent to the Consultant's outside consulting activities; failure
to terminate, this Agreement within seven (7) business days of receipt of
written notice of conflict shall constitute the Client's ongoing consent to the
Consultant's outside consulting services.
DISCLAIMER OF RESPONSIBILITY FOR ACT OF THE CLIENT. In no event shall Consultant
be required by this Agreement to represent or make management decision for the
Client. Consultant shall under no circumstances be liable for any expense
incurred or loss suffered by the Client as a consequent of such decisions, made
by the Client or any affiliates or subsidiaries of the Client.
NOTICES. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail, or by Federal Express or other recognized overnight courier to
the principal office of each party.
WAIVER OF BREACH. Any waiver by either party or a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by any party.
ASSIGNMENT. This Agreement and the right and obligations of the Consultant
hereunder shall not be assignable without the written consent of the Client.
APPLICABLE LAW. It is the intention of the parties hereto that this Agreement
and the performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and under and pursuant to the Laws of the State of
California and this in any action, special proceeding or other proceedings that
may be brought arising out of, in connection with or by reason of this
Agreement, the law of the State of California shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
jurisdiction on which any action or special proceeding may be instituted.
SEVERABILITY. All agreements and covenants contained herein are severable, and
in the event any of them shall be held to be invalid by any competent court, the
Agreement shall be interpreted as if such invalid agreements or covenants were
not contained herein.
ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all other
or prior understandings, agreements and negotiations between the parties.
WAIVER AND MODIFICATION. Any waiver, alteration, or modification of any of the
provisions of this Agreement shall be valid only if made in writing and signed
by the parties hereto. Each party hereto, may waive any of it's rights hereunder
without affecting a waiver with respect to any subsequent occurrences or
transactions hereof.
BINDING ARBITRATION. Any controversy or claim arising out of or relating to this
agreement, or the breach thereof, shall be settled by arbitration administered
by the American Arbitration Association under its Commercial Arbitration Rules,
and judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The arbitration shall be conducted in San
Diego County, California.
COUNTERPARTS AND FACSIMILE SIGNATURE. This agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, The parties hereto have duly executed and delivered this
Agreement, effective as of the date set for above.
CONSULTANT:
/s/ Xxxxxx Xxxxxx
March 13, 2001
CLIENT:
/s/ Xxxxxx X. Xxxxxxxx
March 13, 2001
XX. XXXXXX X. XXXXXX
EXHIBIT A - SERVICES
1. Corporate Planning
2. Product Planning
3. Strategic Alliances
4 Consulting duties similar to Executive Vice-President
EXHIBIT B
COMPENSATION
Management may, at its discretion, award a bonus(s). This bonus(s) may be in
cash, stock or options at the discretion of management with approval of the
Board of Directors and any unpaid salaries may be paid in cash, stock, or
options.
Monthly salary: First twelve months: $2,000 per month
Second twelve months: $4,000 per month
