CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this ____ day of
_____________, 2000, by and between Everything Communications, LLC, a
California limited liability company ("Consultant") and Xxx0Xxxxx.xxx, Inc, a
public corporation ("Company").
IN CONSIDERATION of the mutual terms and conditions set forth herein,
Consultant and Company agree as follows:
1. ENGAGEMENT. Company hereby engages Consultant, and Consultant agrees to
be engaged to provide to Company certain consulting services, more
particularly described as follows: Chief Marketing Officer responsibilities
including marketing strategy, management and implementation. Appended hereto
and made a part hereof as if fully set forth herein is Schedule "A"
entitled "Scope of Engagement." The parties acknowledge and agree that
Schedule "A" sets forth Consultant's duties and responsibilities to Company
and the budget allocated by Company to Consultant for the performance of such
duties and responsibilities by Consultant.
2. TERM. The term of this Agreement shall be one (1) year commencing on
April 1, 2000, and expiring on March 31, 2001, provided that this Agreement
shall automatically renew for a one (1) year term at the end of this initial
term and any subsequent renewal term unless within thirty (30) days of the
end of any term a party gives written notice to the other of their intention
to terminate the term of this Agreement.
3. FEES.
3.1. Monthly Engagement Fee. Company agrees to pay to Consultant the sum
of $5,000.00 per month ("Monthly Fee"), which payment shall be due on or
before the first day of each month starting April 1, 2000, and continue to be
due on or before the first day of each consecutive month thereafter
throughout the term of this Agreement. Consultant will provide Company with
invoices with respect to the Monthly Fee for record keeping purposes.
3.2 Sponsorships/Incentives. Company shall pay Consultant fifteen percent
(15%) of any advertising or promotional fees, earnings or rewards received by
Company wherein Consultant is the procuring cause. Said fees shall be based
upon the gross receipts by Company and are payable within thirty (30) days
after Company's receipt of same.
3.3 Stock and Stock Warrants. In addition to the Monthly Fee described in
Section 3.1 herein, Company shall grant to Consultant certain stock and stock
options as follows: Upon the execution of this agreement, Consultant shall
receive 50,000 shares of 144 restricted common stock (Symbol:EBOT) of the
Company and in consideration for services already rendered to Company. In
addition, Company grants to Consultant option to purchase 100,000 shares of
Company's common stock, exercisable anytime during the term of this
agreement, at the option price of 62.5 cents/share. Further, commencing on
May 1, 2000 and through April 1, 2001, Company hereby grants a monthly
option of 10,000 of the Company's common stock. The exercise price shall be
equivalent to the closing price of the stock of that trading day following
the close of the month in question. Consultant's option to purchase 100,000
shares and the right to receive a monthly option to purchase 10,000 shares,
as described above, shall expire upon the termination of this Agreement,
regardless of weather such termination is with or without cause, or upon its
natural expiration as provided in section 2 above.
4. EXPENSES. As indicated in section 3 above, Company shall pay Consultant a
monthly engagement fee of $5,000.00 in compensation for Consultant's time,
expenses and overhead incurred during the billing month, and in connection
with Consultant's performance of this agreement. Should Consultant estimate
that his expenses shall be such that total of Consultant's time, expenses and
overhead exceed $5,000.00 in any one month, Company shall pay all expenses
Consultant incurs in performing its obligations under this Agreement, which
are related specifically to Company's business and not part of Consultant's
general overhead. At such time as Consultant estimates that his expenses
shall exceed Monthly Fee in any one (1) month, Consultant shall obtain
Company's written consent to incur such expenses. Consultant will invoice
Company monthly for its expenses incurred and to which it is entitled to
reimbursement under this Agreement, which invoice shall include reasonable
supporting documentation with respect to the expenses. Such reimbursable
expenses shall include, but not necessarily be limited to: travel, including,
without limitation, air fare, parking, lodging, meals, rental car or other
means of transport, reasonable entertainment expenses, and any other expenses
related specifically to the business of Company and not generally to
Consultant's business. Reimbursable travel expenses shall include travel
while furthering the interest of Company pursuant to this Agreement.
Notwithstanding the foregoing, only those expenses supported by vendor
invoices shall be reimbursed.
5. COOPERATION. Company agrees to cooperate with Consultant to assist
Consultant in the performance of its obligations hereunder, including but not
limited to the provision of data, documents, information, financial records
and professional services.
6. INDEMNITY AND HOLD HARMLESS. Company shall defend, indemnify and
hold harmless Consultant from any and all claims, demands, obligations,
liabilities, damages, expenses and actions of every kind and nature,
including, without limitation, attorneys fees and all costs and expenses
incurred in any litigation, arbitration, mediation or similar proceeding or
as a prelude to or in lieu of any such proceeding (collectively "Losses"),
asserted against or incurred by Consultant, relating to or arising out of the
business of Company or Consultant's performance under this Agreement
(specifically, including the acquisition of media for Company, regardless of
the nature or type of media) except only for Losses which a court of
competent jurisdiction has determined by final judgment are directly and
primarily caused by actions taken or omitted to be taken by Consultant due to
the gross negligence, bad faith or willful misconduct of Consultant.
Further, Company agrees that Consultant shall not have any liability to
Company or any of its affiliates, directors, officers, employees, agents or
shareholders, related to or arising out of this Agreement, except only for
Losses incurred which a court of competent jurisdiction has determined
by final judgment resulted directly and primarily for actions taken or
omitted to be taken by Consultant due to the gross negligence, bad faith or
willful misconduct of Consultant. In no event, regardless of the legal
theory advanced, shall Consultant be liable for any lost profits,
consequential, indirect or incidental damages of any nature, nor shall any
Consultant ever have liability exceeding the amount of the fees actually paid
to Consultant during any year during the term of this Agreement. It is
anticipated that in the course of Consultant's performance under this
Agreement, it will make recommendations to Company concerning various matters
which advise Company is free to accept or decline. Company acknowledges
that: (a) Consultant's advice and recommendations will be solely from a
business and strategic perspective and not from a legal perspective; (b) the
ultimate decision of acting or not acting pursuant to Consultant's advice and
recommendations is within the discretion of the Company, including, without
limitation, the decision to hire or fire employees; (c) Company will seek
whatever professional, legal or other advice it deems reasonable and
appropriate in connection with the consideration and implementation of advice
and recommendations of Consultant; (d) Company will be solely responsible for
the implementation of all such decisions; (e) Consultant shall not have any
liability or responsibility for the results or impact of such decisions;
and (f) any claims brought by any affected third parties shall be within the
scope of the defense, indemnity and hold harmless provisions of this section.
7. INDEPENDENT CONTRACTOR. Consultant's relationship with Company is that
of an independent contractor. Company does not have the right to control the
manner and means by which Consultant performs its obligations under this
Agreement. Nothing in this Agreement shall be construed to create an
employment, partnership, joint venture or any other form of relationship
between the parties, except the relationship of independent contractors.
Consultant will be solely responsible for and will file, on a timely basis,
all tax returns and payments required to be filed with or made to any
federal, state or local tax authority with respect to its performance of
services under this Agreement. Consultant's compensation will not be subject
to withholding by Company for the payment of Social Security, federal, state,
or any other employee, federal or state withholding taxes. Other than
Consultant's rights to fees, reimbursement of expenses and other
considerations set forth in this Agreement, Consultant shall not be entitled
to any of Company's employee benefits generally provided for Company's
employees.
8. RESTRICTIVE COVENANT. During the term of this Agreement, Consultant shall
not, directly or indirectly, provide consulting services for any business
involved in the secondary market sale of private party boats in any state in
which Company provides services during the term hereof. Provided, however,
nothing in this Agreement shall prohibit Consultant from providing services
to other non-competing businesses from Company. Notwithstanding the above,
Consultant is prohibited from and agrees not to take any fee, commission or
any other form of consideration from any person or entity referred to the
Company by Consultant or which person or entity does business with Company.
9. CONFIDENTIALITY. During the term of this Agreement, Consultant shall have
access to and become acquainted with various trade secrets, consisting of
formulas, methodologies, algorithms, computer processing systems, patterns,
devices, secret inventions, processes, and compilation of information,
records, and specifications ("Confidential Information"), all of which
are owned by the Company and regularly used in the operations of Company's
business. Further, all records of the accounts of customers, route books,
and any records and books relating tin any manner whatsoever to the customers
of the Company, whether prepared by Consultant or otherwise coming into the
Consultant's possession, shall be the exclusive property of the Company
regardless of who actually purchased the original book or record.
Consultant promises and agrees that Consultant shall not misuse,
misappropriate, or disclose any of the Confidential Information, either
during the term of this agreement or at any time thereafter, except as
required in the course of Consultant's performance under this agreement.
Consultant further acknowledges and agrees that the sale or unauthorized use
or disclosure of any of the Confidential Information obtain by the Consultant
during the course of Consultant's performance under his agreement, including
information concerning Company's current of future work, services or
products, the facts that any such work, services or products are planned,
under consideration, or in production, as well as any description thereof,
constitutes unfair competition. Consultant promises and agrees not to engage
in any unfair competition with Company at any time, whether during or
following the termination of this agreement.
As used herein, Confidential Information shall not include: (a)
information that is publicly known or becomes known through no fault of the
Consultant; (b) information which is independently developed by Consultant
prior to or independent of Consultant's engagement by Company under this
agreement; (c) information properly received by Consultant from third parties
without further restrictions on the use or disclosure; or (d) information
disclosed with Company's prior written consent.
10. DEFAULT. The following shall constitute events of default under this
Agreement:
10.1 Company shall be in default if it fails to pay any sum due Consultant
under this Agreement, and such non-payment continues for more than ten (10)
days after Consultant has given written notice to Company concerning such
non-payment.
10.2 Either party shall be in default if such party breaches this Agreement
in any material respect, and such breach is not cured within twenty (20) days
of written notice by the non-breaching party to the breaching party
concerning such breach.
10.3 Either party shall be in default if such party voluntarily files a
petition for relief under any bankruptcy law; makes a general assignment of
all or a substantial portion of its assets for the benefit of its creditors;
ceases to engage in the active conduct of business; or if an involuntary
petition is filed against such party under any bankruptcy law, which petition
is not dismissed within sixty (60) days of its filing.
11. TERMINATION.
11.1 Termination. The non-defaulting party may terminate this Agreement upon
the occurrence of an event of default by the other party as described in
Section 10.
11.2 Effect of Termination.
11.2.1 If Company terminates this Agreement based upon the default of
Consultant, Company shall have all rights and remedies as provided in this
Agreement and under California law, subject to any limitations set forth
herein.
11.2.2 If Consultant terminates this Agreement due to the default of
Company, or if Company attempts to terminate this Agreement prior to its
natural expiration in the absence of default by Consultant, Consultant shall
be entitled to recover the following from Company: (a) all Monthly Fees
previously accrued and unpaid and all Monthly Fees which would have accrued
through the natural expiration of this Agreement; (b) any unreimbursed
expenses which are reimbursable pursuant to Section 4 herein.
12. MISCELLANEOUS.
12.1 Interest. Any sums due Consultant by Company under this Agreement which
are not paid on or before the due date thereof, shall bear interest at the
rate of twelve percent (12%) per annum thereafter until paid.
12.2 Attorney Fees. In the event the services of an attorney at law are
necessary to enforce any of the terms of this Consulting Agreement or to
resolve any dispute arising under this Consulting Agreement, the prevailing
party shall be entitled to recover its attorneys fees from the losing party
as set by the appropriate trial, appellate or bankruptcy court, or on a
petition for review. The appropriate court shall have the right to determine
the prevailing party based upon the totality of the results in the particular
proceeding.
12. Notices. All notices, requests and other communications hereunder
("Notices") shall be in writing and shall be deemed to have been duly given
if directed to the applicable party(ies) at his/its respective addresses set
forth below, which Notice shall be effective at the time indicated if given
in the following manner:
12.3.1 When delivered, if personally delivered by hand;
12.3.2 Upon actual receipt by the addressee if transmitted by facsimile to an
office of the addressee and marked in prominent lettering "Urgent" (if a
facsimile number for such party has been designated below or is subsequently
designated in the same manner as a notice of address change would be provided
as described below);
12.3.3 72 hours after mailing if mailed postage prepaid, by registered or
certified mail, return receipt requested, with an additional copy mailed to
the addressee by regular mail; or
12.3.4 At 5:00 p.m. (in the applicable time zone) on the day after the Notice
is mailed to the addressee by a nationally recognized overnight mail service
which guarantees next day delivery and provides tracking services with
respect to such delivery.
The addresses for all Notice purposes under this Agreement shall be as
follows:
To Company:
Xxx0Xxxxx.xxx, Inc,
XX Xxx 0000
Xx Xxxxx, XX 00000
To Consultant:
Xxxx Xxxxx
Everything Communicates, LLC
XX Xxx 000
Xxxxxxx, XX 00000
However, if any party shall have designated in the manner provided above a
different address by Notice to the others, then Notice shall be to the last
address so designated.
12.4 Modification and Waiver. No modification or waiver of any of the terms
of this Agreement shall be valid unless in writing and executed with the same
formality as this Agreement. No waiver by either party of any breach or
default hereunder shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
12.5 Severability. If any provision of this Agreement is declared void, or
otherwise unenforceable, such provision shall be deemed to have been severed
from this Agreement, which shall otherwise remain in full force and effect.
In the event any provision of this Agreement shall not be enforceable as
unreasonable or for any other reason, then said provision shall be
enforced to the fullest extent permitted by law.
12.6 Jurisdiction and Venue; Governing Law. The jurisdiction for the
resolution of any disputes under this Agreement shall be the State of
California, and venue shall be in Los Angeles County. This Agreement shall
be governed by and construed in accordance with the laws of the State of
California.
12.7 Execution in Counterparts and by Facsimile - This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Agreement may be executed with signatures transmitted among
the parties by facsimile, and no party shall deny the validity of a
signature or this Agreement signed and transmitted by facsimile on the basis
of the use of a facsimile copy rather than an original.
12.8 Complete Agreement. This Agreement sets forth the entire understanding
of the parties hereto with respect to the matters provided herein and
supersedes all prior agreements, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any of the parties
or by any officer, employee or representative of any party.
12.9 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the heirs, executors, administrators, successors and
assigns of Company and Consultant.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year
first above written.
COMPANY CONSULTANT
Xxx0Xxxxx.xxx, Inc, Everything Communicates, LLC
By: By:
Title: Xxxx Xxxxx, Managing Member
Schedule A
Scope of Engagement
Chief Marketing Officer
Overall responsibility of marketing strategy, management and implementation,
more specifically:
1. Development and management of world class brand and identity
2. Building and managing of marketing, advertising, promotional and PR
departments as funds allow
3. Development and management of integrated marketing, advertising,
promotional and PR strategies and distribution
4. Development and design management of all marketing, advertising,
promotional and PR materials
5. Purchasing of all marketing, advertising, promotional and PR print and
media
6. Development and management of acquisition of sponsors and advertisers
7. Working and coordinating efforts with other team members and vendors to
meet company goals and objectives
1
