CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of this __
day of May, 2004, by and between Xxxxxx Capital Corp., a Nevada corporation (the
"Company"), and Xxxxxx X. Xxxxxxxx ("Consultant").
The parties agree as follows:
1. Consulting Relationship.
The Company hereby retains the Consultant and Consultant agrees to render
to the Company those services described in Section 2 of this Agreement.
2. Duties: Responsibilities; Authority.
(a) The Consultant hereby accepts engagement with the Company to
provide professional consulting services to the Company, as further described on
Schedule A attached hereto, or such other services as shall be agreed in good
faith between Consultant and the President of the Company so as to utilize
Consultant's capabilities (the "Services"). The Services shall be performed in a
first class and professional manner. Consultant will provide any tools, supplies
or other resources necessary to perform the Services. Consultant will at all
times observe security, safety and other policies of the Company.
(b) The Consultant shall have no authority to enter into contracts
which bind the Company or create obligations on the part of the Company without
the express prior written authorization of the Company's President. The
Consultant shall have no authority to hire other persons, either as consultants,
independent contractors or employees, in such a manner as would in any way cause
the Company to incur any liability to such persons without the express prior
written authorization of the Company's President.
3. Compensation: Benefits: Expenses.
(a) Compensation. In consideration of the Services to be rendered
hereunder, including, without limitation, services to any Affiliated Company
(defined as any corporation or other business entity or entities that directly
or indirectly controls, is controlled by, or is under common control with the
Company), Consultant shall be entitled to the compensation described on Schedule
B. There shall be no tax, PICA or other similar withholdings from this payment,
and Consultant shall be solely responsible for all social security, tax,
disability, and other state, local and federal assessments.
(b) Benefits. Other than the compensation specified in the above
Section 3 (a), Consultant shall not be entitled to any direct or indirect
compensation or fringe benefits for services performed hereunder.
4. Termination; Obligation to Return Property.
(a) Consultant may terminate his relationship with the Company at
any time upon written notice to the Company. From and after the effective date
of Consultant's termination of his consulting relationship hereunder, the
Company shall have no further liability to Consultant for compensation.
Specifically, and not in limitation of the foregoing, all stock options then
held by Consultant, which are subject to time-based vesting shall cease vesting
as of the effective date of
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termination; Consultant's rights to purchase or retain any shares pursuant to
such options shall be as set forth in the applicable stock option agreements.
(b) The Board may terminate the consulting relationship with
Consultant at any time. If the Company terminates Consultant's consulting
relationship without Cause (as defined below), vesting under all Company stock
options which Consultant then holds, which are subject to time-based vesting
shall fully vest. Consultant's rights to purchase or retain any shares pursuant
to such options shall be as set forth in the applicable stock option agreements.
The following shall constitute "Cause":
(i) Conviction of, or plea of no contest by Consultant in a
court of competent jurisdiction of any felony criminal offense;
(ii) Consultant's commission of an act of fraud, dishonesty or
theft upon the Company that is materially detrimental to the Company; and
(iii) Willful refusal by Consultant to perform the duties
reasonably assigned to him by the Board or the President (which duties are
consistent with Consultant's consulting relationship with the Company), which
failure or breach continues for more than 30 days after written notice given to
Consultant pursuant to a vote of at least two-thirds of all of the members of
the Board, such vote to set forth in reasonable detail the nature of such
refusal.
(c) The Board may terminate the consulting relationship with
Consultant at any time. If the Company terminates Consultant's relationship with
Cause, vesting under all Company stock options which Consultant then holds,
which are subject to time-based vesting shall immediately cease vesting.
Consultant's rights to purchase or retain any shares pursuant to such options
shall be as set forth in the applicable stock option agreements.
(d) Consultant hereby acknowledges and agrees that all personal
property, including, without limitation, all books, manuals, records, reports,
notes, contracts, lists, blueprints, and other documents, or materials, or
copies thereof, Proprietary Information (as defined below), and equipment
furnished to or prepared by Consultant in the course of or incident to rendering
of Services to the Company, including, without limitation, records and any other
materials pertaining to Invention Ideas (as defined below), belong to the
Company. Upon the cessation of Consultant's provision of consulting services to
the Company for any or no reason, Consultant shall promptly return to the
Company all such materials. Following completion of any and all consulting
services to the Company, the Consultant will not retain any written or other
tangible material containing any Proprietary Information.
(e) The representations and warranties contained herein and
Consultant's obligations under Sections 4, 5, 6, 7 and 8 shall survive the
expiration of this Agreement.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any
idea in whatever form, tangible or intangible, pertaining in any manner to the
development, design, marketing, research, distribution and sale of the Company's
consummable products in the beverage and oral care and animal breath markets, or
to its clients, consultants, or business associates, unless: (i) the information
is or becomes publicly known through lawful means; (ii) the information was
rightfully in Consultant's possession or part of Consultant's general knowledge
prior to the date of this Agreement; or (iii) the information is disclosed to
Consultant without confidential or proprietary restrictions by a third party
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who rightfully possesses the information (without confidential or proprietary
restriction) and did not learn of it, directly or indirectly, from the Company.
(b) General Restrictions on Use. Consultant agrees to hold all
Proprietary Information in strict confidence and trust for the sole benefit of
the Company and not to, directly or indirectly, disclose, use, copy, publish,
summarize, or remove from the Company's premises any Proprietary Information (or
remove from the premises any other property of the Company), except to the
extent necessary to carry out Consultant's responsibilities under this
Agreement.
(c) Interference with Business: Competitive Activities. Consultant
agrees that from and after the date of this Agreement and for a period of one
(1) year after the date on which Consultant no longer provides any consulting
services to the Company for any or no reason, Consultant shall not, for itself
or any third party, absent the prior written consent of the Company's President,
which consent shall not be unreasonably withheld, directly or indirectly (i)
divert or attempt to divert from the Company (or any Affiliated Company) any
business of any kind in which it is engaged, including, without limitation, the
solicitation of or interference with the Company's relationship with any of its
suppliers or customers; (ii) employ or solicit for employment, any person
employed by the Company, or by any Affiliated Company; or (iii) become employed
by, advise, become associated with, or perform consulting services for, any
commercial, for-profit enterprise in the United States or anywhere else that the
Company offers its products, that is, or as a result of such activities would
become, a competitor of the Company in connection with the development,
marketing or distribution of consummable products in the beverage and oral care
markets and animal breath products or any other business engaged in by Company
or contemplated as part of the Company's business strategy or that otherwise
would create a conflict of interest for Consultant with Consultant's obligations
to the Company.
6. Consultant's Inventions and Ideas.
(a) Defined. The term "Invention Ideas" means any and all ideas,
processes, trademarks, service marks, inventions, technology, computer programs,
original works of authorship, designs, formulas, discoveries, patents,
copyrights, and all improvements, rights, and claims related to the foregoing
that are conceived, developed, or reduced to practice by the Consultant alone or
with others solely in the course of providing the consulting services set forth
on Schedule A to the Company.
(b) Disclosure. Consultant agrees to maintain adequate and current
written records on the development of all Invention Ideas and to disclose
promptly to the Company all Invention Ideas and relevant records, which records
will remain the sole property of the Company. Consultant further agrees that all
information and records pertaining to any idea, process, trademark, service
xxxx, invention, technology, computer program, original work of authorship,
design, formula, discovery, patent, or copyright that Consultant does not
believe to be an Invention Idea, but is conceived, developed, or reduced to
practice by Consultant (alone or with others) after the date of this Agreement
or during the one year period after the date on which the Consultant no longer
provides any services to the Company for any or no reason, shall be promptly
disclosed to the Company (such disclosure to be received in confidence). The
Company shall examine such information to determine if in fact the idea,
process, or invention, etc., is an Invention Idea subject to this Agreement.
(c) Assignment. Consultant agrees to assign to the Company, without
further consideration, his entire right, title, and interest (throughout the
United States and in all foreign countries), free and clear of all liens and
encumbrances, in and to each Invention Idea, which shall be the sole property of
the Company, whether or not patentable. In the event any Invention Idea shall be
deemed by the Company to be patentable or otherwise registrable, Consultant
shall assist the Company (at Company's expense) in obtaining letters patent or
other applicable registrations thereon and shall
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execute all documents and do all other things (including testifying at the
Company's expense) necessary or proper to obtain letters patent or other
applicable registrations thereon and to vest the Company, or any Affiliated
Company specified by the Company, with full title thereto. Should the Company be
unable to secure Consultant's signature on any document necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, or other right or
protection relating to any Invention Idea, whether due to Consultant's mental or
physical incapacity or any other cause, Consultant hereby irrevocably designates
and appoints Company and each of its duly authorized officers and agents as
Consultant's agent and attorney in fact, to act for and in Consultant's behalf
and stead and to execute and file any such document, and to do all other
lawfully permitted acts to further the prosecution, issuance, and enforcement of
patents, copyrights, or other rights or protections with the same force and
effect as if executed and delivered by Consultant.
(d) Exclusions. Consultant acknowledges that there are no ideas,
processes, trademarks, service marks, technology, computer programs, original
works of authorship, designs, formulas, inventions, discoveries, patents,
copyrights, or improvements to the foregoing that it desires to exclude from the
operation of this Agreement. To the best of Consultant's knowledge, there is no
existing contract in conflict with this Agreement or any other contract to
assign ideas, processes, trademarks, service marks, inventions, technology,
computer programs, original works of authorship, designs, formulas, discoveries,
patents, or copyrights that is now in existence between Consultant and any other
person or entity.
(e) Post-Performance Period. Because of the difficulty of
establishing when any idea, process, invention, etc., is first conceived or
developed by Consultant, or whether it results from access to Proprietary
Information or the Company's equipment, facilities, and data, Consultant agrees
that any idea, process, trademark, service xxxx, technology, computer program,
original work of authorship, design, formula, invention, discovery, patent,
copyright, or any improvement, rights, or claims having a direct bearing or
relevance to the Company's assets or operations shall be presumed to be an
Invention Idea if it is conceived, developed, used, sold, exploited, or reduced
to practice by Consultant or with the aid of Consultant within six (6) months
after the date on which the Consultant no longer provides any consulting
services to the Company. Consultant can rebut the above presumption if it proves
that the invention, idea, process, etc., (i) was first conceived or developed
after the date on which Consultant no longer provides any consulting services to
the Company for any reason or no reason, (ii) was conceived or developed
entirely on Consultant's own time without using the Company's equipment,
supplies, facilities, or Proprietary Information; and (iii) did not result from
any work performed by Consultant for the Company.
7. Consultant Representations and Warranties.
Consultant acknowledges that the Company does not want to receive or
be provided access to information which is confidential or in any way
proprietary to any other party or the receipt of which may result in the
imposition of any obligation or liability upon the Company. Accordingly,
Consultant represents and warrants that: (i) Consultant has the full and
unrestricted right to enter into this Agreement, render the Services
contemplated hereunder, and provide to the Company the Services; (ii)
Consultant's entering into this Agreement and rendering the Services
contemplated hereunder and complying with his obligations hereunder, does and
will not violate any applicable law, rule or regulation, or breach or conflict
with any contractual or other obligation of Consultant to any other party; and
(iii) all Services when delivered will be the original work of Consultant or in
the public domain, will be free and clear of any and all restrictions, and will
not infringe Intellectual Property (as defined below) rights of any other party.
"Intellectual Property" means all rights of every nature relating to
intellectual property, including without limitation (i) all United States and
foreign patents and patent applications now or hereafter filed (including
continuations, continuations-in-part, divisionals, reissues, reexaminations and
foreign counterparts thereof), and all rights with respect thereto; (ii) all
Trade
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Secrets; and (iii) all copyrights and renewals thereof and other rights relating
to literary or artistic works and data compilations (including without
limitation author's and moral rights and rights of publicity and privacy).
8. Infringement.
If a claim is made or an action brought alleging that any Services
infringe a United States patent or any copyright or trade secret, Consultant
will indemnify the Company and hold it harmless against such claim or action and
resulting costs, damages and attorneys fees finally awarded or agreed to in
settlement, provided that (i) the Company promptly notifies Consultant in
writing of the claim, and (ii) Consultant has sole control of the defense and
all related settlement negotiations, except that the Company may be represented
by separate counsel at its own expense. Consultant's obligations under this
Section are conditioned on the Company's agreement that if any Services, or the
use or operation thereof, becomes, or in Consultant's opinion is likely to
become, the subject of such a claim, Consultant may at its expense either
procure the right for the Company to continue using the Services or, at its
option, replace or modify the same so that it becomes non-infringing (provided
such replacement or modification does not materially adversely affect the
Company's intended use of the Services as contemplated hereunder). Consultant
shall have no liability for any claim based upon (a) the combination, operation
or use of any Services with equipment, software or data not supplied or
expressly approved in writing by Consultant if such claim would have been
avoided by use of other equipment, software or data, or (b) a modification of
any Services that is not done or expressly authorized in writing by Consultant.
THE FOREGOING STATES THE SOLE REMEDY OF THE COMPANY AND THE ENTIRE OBLIGATION OF
CONSULTANT WITH RESPECT TO BREACH OF THE FOREGOING WARRANTIES OR OTHERWISE WITH
RESPECT TO INFRINGEMENT.
9. Independent Contractor Relationship.
(a) Nature of Relationship. In performing services to the Company
pursuant to this Agreement, Consultant's relationship with the Company will be
that of an independent contractor and nothing in this Agreement should be
construed to create a partnership, joint venture, or employer-employee
relationship. Consultant acknowledges and agrees that neither Consultant nor any
person associated with Consultant shall be entitled to receive or otherwise
participate in any employee benefits of any nature which the Company provides or
makes available to any of its employees.
(b) Taxes and Records. Consultant agrees that it will be solely
responsible for, and will file and pay on a timely basis, all withholding
required by federal, state or local law with respect to Consultant's performance
of the Services.
10. No Conflict of Interest.
Consultant warrants that to the best of Consultant's knowledge,
there is no other contract or duty now in existence inconsistent with this
Agreement. Consultant further agrees not to disclose to the Company, or bring
onto the Company's premises, or induce the Company to use any confidential
information that belongs to anyone other than the Company or Consultant.
Consultant agrees to indemnify the Company from any and all loss or liability
incurred by reason of the alleged breach by Consultant of any confidentiality or
services agreement with anyone other than the Company.
11. Assignment: Successors and Assigns.
Consultant shall not, absent the prior written consent of the
Company's President, which consent shall not be unreasonably withheld, assign,
sell, transfer, delegate or otherwise dispose of,
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whether voluntarily or involuntarily, or by operation of law, any rights or
obligations under this Agreement, nor shall Consultant's rights be subject to
encumbrance or the claims of creditors. Any purported assignment, transfer, or
delegation by Consultant shall be null and void.
12. Notices.
All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or registered mail,
return receipt requested, and addressed to the Company at is principal executive
office, and to the Consultant at Consultant's address shown on the signature
page hereof. Notice of change of address shall be effective only when done in
accordance with this section.
13. Entire Agreement.
The terms of this Agreement are intended by the parties to be the
full and final expression of their agreement with respect to the retention of
Consultant by the Company and may not be contradicted by evidence of any prior
or contemporaneous agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding involving this Agreement. This Agreement fully
supersedes any prior oral or written consulting or other agreements between the
Consultant and the Company.
14. Amendments.
This Agreement may not be modified or amended, except by an
instrument in writing, signed by the Consultant and by a duly authorized
representative of the Company.
15. Severabilitv: Enforcement.
If any provision of this Agreement shall be held to be invalid,
unenforceable, or void, the remainder of this Agreement shall remain in full
force and effect. It is the intention of the parties that the non-competition
covenant contained in Section 5 shall be enforced to the greatest extent (but to
no greater extent) in time, area, and degree of participation as is permitted by
the law of that jurisdiction whose law is found to be applicable to any acts
allegedly in breach of these covenants.
16. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts, without regard to conflicts of
law principles.
17. Consultant Acknowledgment.
Consultant acknowledges (i) that he has consulted with or has had
the opportunity to consult with independent counsel of his own choice concerning
this Agreement and has been advised to do so by the Company, and (ii) that it
has read and understands the Agreement, is fully aware of its legal effect, and
has entered into it freely based on his own judgment and not in reliance upon
any representation or promises made by the Company other than those contained in
writing herein.
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18. Remedies.
(a) Injunctive Relief. The parties agree that in the event of any
breach or threatened breach of any of the covenants in Sections 5 and 6, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive relief without bond against Consultant
in the event of any breach or threatened breach of any such provisions by
Consultant, in addition to any other relief (including damages) available to the
Company under this Agreement or under law.
(b) Enforcement. In the event of any legal action required to
enforce or defend this Agreement, the prevailing party shall be entitled to an
award of attorneys' fees and legal costs, in addition to other relief.
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The parties have duly executed this Agreement as of the date first written
above.
XXXXXX CAPITAL CORP. CONSULTANT
By:_______________________________ ________________________________________
Name: Name:
Title:
Address:
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Schedule A
Services
1. General and administrative services, including without limitation,
bookkeeping, accounting and tax services.
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Schedule B
Compensation
1. $5,000 per month. Payment of compensation shall be deferred until the time at
which cash flow is realized from sales of consumable products equal to or in
excess of $100,000 per month, at which time all deferred compensation shall be
paid.
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