CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 17th day of October, 2002 by
and between Vital Living, Inc., hereinafter referred to as "Client", with its
principal place of business at 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 and Xxxxxx X. Xxxxx, with his principal place of business at 000
Xxxxxx Xxxx Xx., Xxxxx 0, Xxxxxxxxxxxx, XX 00000, hereinafter referred to as
"Consultant".
RECITALS
WHEREAS, the Consultant possesses skills, knowledge and qualifications
beneficial to the Client.
WHEREAS, in the operation of Client's business affairs, the Client is in
need of the services which Consultant provides and wishes to enter into a
business arrangement with Consultant to provide such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it
is hereby agreed as follows and will confirm the arrangements, terms and
conditions pursuant to which Consultant (the "Consultant") has been retained to
serve as a business consultant to Vital Living, Inc. (also sometimes referred to
as the "Client" or "Company") on a nonexclusive basis as an independent
contractor. The undersigned hereby agree to the following terms and conditions:
AGREEMENTS
1. Terms of Contract. This Agreement will become effective October 17,
2002 and will continue in effect for a period of one year (1) year
unless earlier terminated pursuant to Section 4 of this Agreement.
2. Services to be Performed by Independent Contractor/Consultant
2.1 Duties of Independent Contractor. Contractor shall at the
request of the Client, upon reasonable notice; render the following
services to the Client from time to time.
2.2 Duties of Consultant. Consultant agrees to provide general
business consulting to Client. The Consultant will provide such
consulting services and advice pertaining to the Client's business
affairs as the Client may from time to time reasonably request. Per
the Client's request, the Consultant will provide Client with the
benefits of its reasonable judgment and efforts regarding the
following: corporate structures, general business policy, investor
relations and public relations planning, strategic planning,
including alliance partnerships and acquisitions.
2.3 Independent Contractor Status. It is the express intention of
the parties that Consultant be an independent contractor and not an
employee, agent, joint venture or partner of Client. Client shall
have no right to and shall not control the manner or prescribe the
method by which Consultant performs the above described services.
Consultant shall be entirely and solely responsible for its own
actions and the actions of its agents, employees or partners while
engaged in the performance of services required by this Agreement.
Nothing in this Agreement shall be interpreted or construed as
creating or establishing the relationship of employer and employee
between Client and Consultant or any employee or agent of
Consultant. Both parties acknowledge that Consultant is not an
employee for state or federal income tax purposes and Consultant
specifically agrees that he shall be exclusively liable for the
payment of all income taxes, or other state or Federal taxes that
are due as a result of receipt of any consideration for the
performance of services required by this Agreement. Consultant
agrees that any such consideration is not subject to withholding by
the Client for payment of any taxes and Consultant directs Client
not to withhold any sums for the consideration paid to Consultant
for the services provided hereunder. Consultant shall retain the
right to perform services for others during the term of this
Agreement. Nothing herein shall constitute Consultant as an employee
or agent of the Client, except to such extent as might hereinafter
be agreed, Consultant shall not have the authority to obligate or
commit the Client in any matter whatsoever.
2.4 Use of Employees of Contractor. Consultant may, at its own
expense, use any employees or subcontractors, as it deems necessary
to perform the services required by Consultant by this Agreement.
Client may not control, direct or supervise Consultant and/or it's
employees or subcontractors in the performance of those services.
2.5 Expense. Consultant shall bear out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of
reimbursement from the Client unless such expenses are pre-approved
by the Client.
2.6 Available Time. Consultant shall make available such time as it,
in its sole discretion, shall deem appropriate for the performance
of its obligation under this Agreement.
3. Compensation.
3.1 Consideration. Client and Consultant agree that Consultant,
subject to the approval of the Company's Board of Directors, shall
receive Thirty Two Thousand (32,000) shares of restricted 144 stock
of Vital Living, Inc. upon the signing of this Agreement. These
shares shall all vest immediately and be considered fully paid upon
the signing of this agreement.
3.2 Reimbursement for Out-of-Pocket Expenses. Consultant will be
responsible for any and all expenses in furtherance of this
agreement unless he has received written approval in advance
by Client for any expenses.
3.3 Assignment and Termination. This Agreement shall not be
assignable by any party, but the shares are fully assignable,
subject to the restrictive legend on the stock.
4. Termination Agreement
4.1 Termination on Notice. Notwithstanding any other provisions of
this Agreement, Client may terminate this Agreement at any time by
giving thirty (30) days written notice to the Consultant. Upon
Consultant receiving 30 days written notification of termination of
this Agreement by Client, it is to receive full payment for services
and expenses as stated in item 3.1 and 3.2 of this Agreement. Unless
otherwise terminated as provided in this Agreement, this Agreement
will continue in force for a period of one year (1)
4.2 Termination on Occurrence of Stated Event. This Agreement will
terminate automatically on the occurrence of the following event:
(a) bankruptcy or insolvency of Client
(b) non-payment or performance as stated in this Agreement by Client
5. Confidentiality. During the Term of this Agreement and for a period of two
year thereafter, the Consultant shall keep confidential the Client's trade
secrets, information, ideas, knowledge and papers pertaining to the affairs of
the Client. Without limiting the generality of the foregoing, such trade secrets
shall include: the identity of the Client's customers, suppliers and prospective
customers and suppliers; the identity of the Client's creditors and other
sources of financing; the Client's estimating and costing procedures and the
cost and gross prices charged by the Client for its products; the prices or
other consideration charged to or required of the Client by any of its suppliers
or potential suppliers; the Client's sales and promotional policies; and all
information relating to entertainment programs or properties being produced or
otherwise developed by the Client. The Consultant shall not reveal said trade
secretes to others except in the proper exercise of its duties for the Client,
or use their knowledge thereof in any way that would be detrimental to the
interest of the Client, unless compelled to disclose such information by
judicial or administrative process; provided, however, that the divulging of
information shall not be a breach of this Agreement to the extent that such
information was (i) previously known by the party to which it is divulged, (ii)
already in the public domain, all through no fault of the Consultant, or (iii)
required to be disclosed by Consultant pursuant to judicial or governmental
order. The Consultant shall also treat all information pertaining to the affairs
of the Client's suppliers and customers and prospective customers and suppliers
as confidential trade secrets of such customers and suppliers and prospective
customers.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Client or to any
officer, director, employee, stockholder or creditor of the Client, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, the Client agrees to defend, indemnify,
and hold the Consultant harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in the defense
of the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Client, made by the Consultant without
the prior approval or authorization of the Client.
7. Client's Liability. The Consultant agrees to defend, indemnify, and hold the
Client harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in defense of the Client)
which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Client, without the prior approval or authorization of the Client
or which are otherwise in violation of applicable law.
8. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Client and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
9. Waiver. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provisions, nor shall any waiver
constitute a continuing wavier. No waiver shall be binding unless executed in
writing by the party making the waiver.
10. Assignment and Binding Effect. This Agreement and the rights hereunder may
not be assigned by the parties (except by operation of law, merger,
consolidation, and sale of assets) and shall be binding upon and inure to the
benefit of the parties and their respective successors, assigns and legal
representatives.
11. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is deemed unlawful or invalid for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of
this Agreement.
12. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Arizona. Any litigation arising
hereunder shall be initiated only in the state of Arizona. The prevailing party
shall be entitled to recover its attorney's fees and costs. This Agreement shall
not be construed against either party hereto in the event of any ambiguities
13. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
14. Further Acts. Each party agrees to perform any further acts and execute and
deliver any further documents that may be reasonably necessary to carry out the
provisions and intent of this Agreement.
15. Acknowledgment Concerning Counsel. Each party acknowledges that it had the
opportunity to employ separate and independent counsel of its own choosing in
connection with this Agreement.
16. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
17. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
VITAL LIVING, INC.
BY:_____________________________________ DATE:_____________
Xxxxxxx Xxxxx, CEO
CONSULTANT
BY:_____________________________________ DATE:____________
Xxxxxx X. Xxxxx
