EXHIBIT 10.30
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") executed as of this 19th day of
May, 2002, is made by and between Xxxxxxx Xxxxxxxxx Xxxx, also known as Xxxxxxx
X. Xxxx ("Consultant") and Vital Living, Inc., a Nevada corporation ("Company").
R E C I T A L S
Company desires to utilize Consultant's experience, knowledge and
abilities in the various aspects of its business. Consultant desires to render
such consulting services subject to the terms and conditions of this Agreement.
In consideration of the foregoing recitals and the mutual covenants and
agreements contained herein, Consultant and Company agree as follows:
1. CONSULTING SERVICES.
(a) The Company retains Consultant to provide the following
consulting services (the "Consulting Services") to the Company:
(1) Assist Vital Living in establishing an office and
presence in China.
(2) Assist Vital Living with meeting the legal
requirements of being able to do business in China.
(3) Facilitate the introduction and negotiation of
Strategic alliances in China.
(4) Board of Director/Advisor Placement for the
Chinese Company to be established for Vital Living.
(5) Finance: Assist the Company in identifying and
assessing opportunities for capital formation for execution of the Chinese sales
and distribution strategy.
(6) Corporate Legal Services
(7) Competitive Research and analysis of the Chinese
Marketplace.
(8) Assist in the establishing of a marketing and
sales force within China.
(9) Executive Search for positions for our Chinese
operations.
(10) Facilitate introductions to leading physicians
and other prominent healthcare industry professionals, including the recruiting
of highly qualified individuals to serve as members of the Scientific Advisory
Board within China. Additionally, to facilitate the introduction of additional
medical institutes and clinics who would wish to participate in the distribution
of Vital Living nutraceuticals to their patients in China.
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(11) Perform such additional services as the Company
and Consultant may agree upon.
(b) In performing the duties required under this Agreement, Consultant,
at all times shall exercise his professional independent judgment, based on his
training, experience and expertise. Consultant shall at all times comply with
the ethical rules and opinions of the professional organizations of which he is
a member. If any conflict arises between Consultant's duties hereunder and
Consultant's ethical or other contractual obligations, Consultant shall
immediately bring the matter to the attention of the chief executive officer,
president or chairman of the board of directors of the Company.
(c) Consultant shall devote such time as is reasonably required to
perform the Consulting Services.
(d) Consultant shall provide the Consulting Services at such locations
as may be necessary or desirable to perform such Consulting Services
effectively.
2. TERM AND TERMINATION.
(a) This Agreement shall commence on the execution date hereof (the
"Effective Date") and shall automatically terminate (the period commencing upon
the Effective Date and ending upon termination of this Agreement, the "Term")
upon the termination of the two year period following the Effective Date, or
earlier as follows:
(i) by the Company at any time, with or without Cause (as
defined below), provided that a termination of this Agreement for Cause shall be
effective immediately upon written notice from the Company to the Consultant.
(ii) upon the death or disability of the Consultant.
(iii) by mutual agreement of the Company and Consultant.
(iv) by Consultant for any reason, provided that a
termination of this Agreement by the Consultant shall
be effective only upon 30 days written notice from
the Consultant to the Company.
(b) For purposes of this Agreement, Company shall have "Cause" to
terminate this Agreement upon Consultant's:
(i) Commission of a felony involving moral turpitude; or
(ii) death; provided that the Consultant's beneficiaries
shall be entitled to exercise the Consultant's due stock options through the
last day of the month in which his death occurs; or
(iii) Commission of any act of fraud, theft, or
embezzlement involving assets of the Company; or
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(iv) Becoming physically or mentally disabled so that he
is unable to perform his services for (I) a period of 60 consecutive days, or
(II) for shorter periods aggregating 60 days during any twelve-month period. The
Consultant shall become physically or mentally disabled so that he is unable
substantially to perform his services for (i) a period of 30 consecutive days,
or (ii) for shorter periods aggregating 30 days during any twelve-month period.
Notwithstanding such disability the Company shall continue to pay the Consultant
his compensation through the date of such termination.
(c) Upon the expiration or termination of this Agreement for any
reason, (a) each party will be released from all obligations to the other
arising after the date of expiration or termination, except that expiration or
termination of this Agreement will not relieve either party of its obligations
under Sections 3(b), 3(c), 6, 7, 8, or 9, nor will expiration or termination
relieve Consultant or Company from any liability arising from any breach of this
Agreement; and (b) Consultant will promptly notify Company of all Confidential
Information and Subject Inventions, in Consultant's possession and promptly
deliver to Company, or destroy at Company's request, all such materials.
3. OPTION.
Concurrently with the execution of this Agreement, the Company and
Consultant shall enter into the Nonqualified Stock Option Agreement attached
hereto as Exhibit A.
4. INDEPENDENT CONTRACTOR RELATIONSHIP.
(a) The relationship of Consultant to Company is that of an independent
contractor and advisor only. Nothing contained in this Agreement shall be
construed to create the relationship of employer and employee or principal and
agent between Consultant and Company. Accordingly, Consultant shall not be
entitled to any employee benefits, such as medical or other health insurance,
available to employees of Company. In addition, Consultant is not a member,
partner or joint venturer with Company, and nothing contained in this Agreement
shall be construed so as to make such parties partners or joint venturers or to
impose any liability as such on either of them. Consultant shall have no
authority to bind Company to any agreement, obligation or commitment.
(b) It is understood and agreed that Consultant's duties and
obligations to Company are fully expressed by the terms hereof. As long as
Consultant's other business activities or services do not cause substantial
interference with Consultant's performance of his duties under this Agreement or
otherwise violate any other agreement between the Consultant and the Company,
Consultant shall be entitled to engage in any other business activities he deems
fit, as an owner, officer, director, partner, investor, employee, consultant or
otherwise.
(c) Consultant shall be responsible for payment of any and all
applicable federal, state and local income and other taxes, business license
fees and workers' compensation and disability benefits which he may incur as a
consequence of rendering the Consulting Services provided for herein. In the
event that the Company is required to pay, or it is contended that the Company
is required to pay any such employee taxes, penalties, interest, fines or
assessments, Consultant agrees to hold harmless and indemnify the Company in
full from and against any such taxes,
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penalties, fines or assessments, and attorneys' fees and other expenses which
result from, or are incident to, any proceeding to establish or collect such
taxes.
5. CONFIDENTIALITY.
(a) "Confidential Information" shall mean all confidential or
proprietary information of the Company whether developed by the Company, by
Consultant within the scope of Consultant's engagement by the Company, or by
third parties for the Company, including without limitation knowledge about
business, marketing plans, pricing practices, products, formulation,
ingredients, formulations, dosages, sources, methods of manufacturing and
delivery, inventions, prototypes, formula, processes, programming techniques,
experimental work, as well as information relating to the customers, clients and
suppliers of Company. Confidential Information will not include, however, any
information which is or becomes part of the public domain through no fault of
Consultant or that Company regularly gives to third parties without restriction
on use or disclosure.
(b) Consultant agrees to hold all such Confidential Information in
strict confidence, not to disclose it to others or use it in any way, except in
performing the Services, and not to allow any unauthorized person access to it,
either before or after expiration or termination of this Agreement. Consultant
further agrees to take all action reasonably necessary and satisfactory to
protect the confidentiality of the Confidential Information.
6. ASSIGNMENT OF INVENTIONS.
(a) "Inventions" shall mean all designs, discoveries, inventions,
computer programs, procedures, improvements (whether or not patentable or
whether or not copyrightable), modifications, enhancements, products,
developments, drawings, notes, documents, information and materials, including
any such items relating to the ingredients, formulations, dosages, sources,
methods of manufacturing and delivery of Nutraceuticals, whether or not
patentable and whether or not reduced to practice, together with each literary
work of such owner, whether or not copyrightable.
(b) "Subject Inventions" shall mean all Inventions made by Consultant
during the Term that result from any work performed by Consultant for the
Company or were developed using the Company's equipment, supplies, facilities,
or trade secret information.
(c) Consultant hereby assigns to the Company, without additional
consideration to the Consultant, the entire right, title, and interest in and to
the Subject Inventions and all confidential information, writings, apparatus,
and other matter related to the Subject Inventions and in and to all proprietary
rights therein or based thereon. Consultant understands and agrees that all
materials included in any Subject Invention which is eligible for protection
under the Copyright Laws shall be deemed specially commissioned by the Company
and treated as "Works for Hire" under the Copyright Laws of the United States to
the extent such materials fall within a category eligible for such treatment. In
the event that such materials are not eligible to be treated as a Work for Hire,
Consultant nonetheless shall, and hereby does, assign all of Consultant's
interest in such work to the Company as the same is created by Consultant.
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(d) During and after the Term, Consultant shall execute and deliver all
written assignments, oaths, declarations, applications, and other documents as
may be prepared by the Company to evidence and/or effect the assignments
required by this Agreement.
(e) During and after the Term, Consultant shall provide the Company
with all information, documentation, and assistance the Company may request to
perfect, enforce, or defend any Subject Inventions or Proprietary Information
under this Agreement. The Company, in its sole discretion, shall determine the
extent of the proprietary rights, if any, to be protected in or based on the
Subject Inventions and Proprietary Information. All such information,
documentation, and assistance shall be provided at no additional expense to the
Company, except out-of-pocket expenses which the Consultant incurred at the
Company's request.
(f) Nothing in this Agreement shall affect in any way the ownership of,
or rights to, any Inventions other than the Subject Inventions.
7. CONFLICTS OF INTEREST
(a) During the Term and for two (2) years thereafter, Consultant shall
not:
(i) perform any services for any person or entity
competing directly with the Company; or
(ii) directly or indirectly (other than for Company), sell
or attempt to sell any Nutraceuticals to any person or entity which has been a
customer of the Company during the Term, purchase or attempt to purchase (other
than for Consultant's personal use) any Nutraceuticals from any person or entity
which has been a vendor or supplier of Company during the Term, or use
Consultant's personal knowledge or influence in relation to any person or entity
which has at any time during such period been a customer, vendor, or supplier of
Company in order to compete with Company.
(b) During the Term and for two (2) years thereafter, Consultant shall
not:
(i) directly or indirectly, induce or attempt to induce
any employee, consultant, independent contractor, advisor, or other service
provider of the Company to terminate such person's or entity's relationship with
the Company;
(ii) directly or indirectly induce or attempt to induce
any vendor, customer, or supplier, or any other person having a business
relationship with Company, to terminate or adversely modify such person's or
entity's relationship with the Company.
8. MISCELLANEOUS
(a) Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and Company's successors or assigns and
the Consultant's heirs, executors and legal representatives, provided that this
Agreement is a personal services contract and may not be assigned by Consultant
without the prior written consent of Company.
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(b) Publicity. Consultant shall not publicize or advertise in any
manner that Consultant is performing the Consulting Services hereunder, without
the prior written consent of Company. Consultant hereby grants to Company the
right to use Consultant's name, likeness, and relationship with Company in and
in connection with technical materials, various reports, brochures or other
documents produced by or on behalf of Company.
(c) Assignment. Consultant may not assign this Agreement or any of
Consultant's rights or delegate Consultant's duties under this Agreement either
in whole or in part, whether by operation of law or otherwise, without the prior
written consent of Company. Any attempted assignment or delegation without such
consent will be void and of no force and effect.
(d) Equitable Remedies. Because the Services are personal and unique
and because Consultant will have access to Confidential Information of Company,
Company will have the right to enforce this Agreement and any of its provisions
by injunction, specific performance or other equitable relief without prejudice
to any other rights and remedies that Company may have for a breach of this
Agreement.
(e) Attorneys' Fees. If any action is necessary to enforce the terms of
this Agreement, the substantially prevailing party will be entitled to
reasonable attorneys' fees, costs and expenses in addition to any other relief
to which such prevailing party may be entitled.
(f) Governing Law; Severability. This Agreement will be governed by and
construed in accordance with the laws of the State of Nevada excluding that body
of law pertaining to conflict of laws. If any provision of this Agreement is for
any reason found to be unenforceable, the remainder of this Agreement will
continue in full force and effect.
(g) Notices. All notices and demands between the parties hereto shall
be in writing and shall be served either by registered or certified mail, and
such notices or demands shall be deemed given and made forty-eight (48) hours
after the deposit thereof in the United States mail, postage prepaid, addressed
to the party to whom such notice or demand is to be given or made, and the
issuance of the registered receipt therefor. All notices and demands to
Consultant or the Company may be given to them at the following addresses:
If to Consultant: Xxxxxxx Xxxxxxxxx Xxxx, also known as
Xxxxxxx X. Xxxx
0000 Xxxxxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
If to Company: Vital Living, Inc.
0000 X. Xxxxx Xx.
Xxxxx, XX 00000
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
(i) Captions. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
thereof.
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(j) Modification. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written.
VITAL LIVING, INC., a Nevada corporation
______________________________________
Xxxxxxx X. Xxxxx, C.E.O.
CONSULTANT
______________________________________
Xxxxxxx Xxxxxxxxx Xxxx, also known as Xxxxxxx X. Xxxx
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