EXHIBIT 10.19
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of January
24, 2000, by and between Omni Nutraceuticals, Inc., a Utah corporation and its
subsidiaries or affiliates (the "Company"), and ▇▇▇▇▇▇▇ Investissments, a
Gibraltar corporation ("Consultant").
WHEREAS, the Company desires to list its securities on various European
exchanges, and generate a presence in the European markets (the "Company
Objectives");
WHEREAS, the Company recognizes that the Consultant can contribute to
achieving the Company Objectives;
WHEREAS, the Company believes it to be important both to the future
prosperity of the Company Objectives and to the Company's general interest to
retain Consultant as a non-exclusive consultant to the Company and have
Consultant available to the Company for consulting services in the manner and
subject to the terms, covenants, and conditions set forth herein;
WHEREAS, in order to accomplish the foregoing, the Company and Consultant
desire to enter into this Agreement, effective as of January 24, 2000, to
provide certain services as set forth herein.
NOW THEREFORE, in view of the foregoing and in consideration of the
premises and mutual representations, warranties, covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. RETENTION. The Company hereby retains the Consultant on a non-exclusive
basis during the Consulting Period (as defined in Section 2 below), and
Consultant hereby agrees to be so retained by the Company, all subject to
the terms and provisions of this Agreement.
2. CONSULTING PERIOD. The Consulting Period shall commence on January 24,
2000 and terminate no earlier than January 24, 2001, upon at least
90 days' prior written notice. After January 24, 2001, either party may
terminate this Agreement by giving 30 days' written notice of termination
to the other party.
3. DUTIES OF CONSULTANT. During the Consulting Period, the Consultant
shall use its reasonable and best efforts to perform those actions and
responsibilities necessary to achieve the Company Objectives (the
"Services"). Consultant shall render such Services diligently, in
compliance with all applicable laws and to the best of its ability.
4. OTHER ACTIVITIES OF CONSULTANT. The Company recognizes that
Consultant shall perform only those services that are reasonably required
to accomplish the goals and objectives set forth herein, and that
Consultant shall provide services to other businesses and entities
other than the Company. Consultant shall be free to directly or indirectly
own, manage, operate, join, purchase, organize or take preparatory steps
for the organization of, build, control, finance, acquire, lease or invest
or participate in the ownership, management, operation, control or
financing of, or be connected as an officer, director, employee, partner,
principal, manager, agent, representative, associate, consultant, investor,
advisor or otherwise with (collectively, be "Affiliated" with), any
business or enterprise, or permit its name or any part thereof to be used
in connection with any business or enterprise, engaged in any business,
including but not limited to, any business that is the same as,
substantially similar to or otherwise competitive with, adverse to,
affiliated with, or otherwise related to the Company. Consultant may be
Affiliated with any entity which may provide services to the Company. The
Company hereby waives any conflict of interest that may arise from a
relationship between Consultant and any entity which Consultant is
Affiliated with provided that Consultant inform the Company of any material
conflicts known to Consultant. This Agreement may not be assigned by
Consultant, without the prior written consent of the Company; provided,
however, Consultant's right to receive compensation hereunder may be
assigned by Consultant.
5. COMPENSATION. In consideration for Consultant entering into this Agreement,
the Company shall compensate Consultant as follows:
a. FEES AND BENEFITS:
i. Retainer. The Company shall pay to Consultant a non-refundable
fee equal to 560,000 shares of restricted common stock which
shall be registered on the next registration statement filed by
the Company.
ii. Expenses. The Company shall pay all such expenses reasonably
incurred during the Consulting Period by the Consultant for
business purposes which are related to or in furtherance of the
goals and objectives identified by the Company and/or the
provision of the Services (collectively, "Company Purposes"),
including, without limitation, expenses incurred with respect to
the Consultant's travel (including business class travel for
flights of less than two hours and first class travel for flights
of two hours or more), meals and entertainment and other
customary and reasonable expenses for Company Purposes. The
Company shall pay authorized expenses directly, or, upon
submission of bills, receipts and/or vouchers by the Consultant,
by direct reimbursement to the Consultant. Consultant shall
obtain the prior approval of the Company for any expenses in
excess of $1,000, individually or in the aggregate.
b. THIRD PARTY COMMISSIONS. Consultant and/or its Affiliates shall be
entitled to share in any fees or commissions payable by third parties
on any transaction contemplated herein, including, but not limited to,
any fees payable to Consultant
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by a third party lender, financing partner, or other party, or a
seller of a corporation or business, including, without limitation,
investment banking fees or commissions, business brokerage fees or
commissions, finders fees, or any other fee payable by a third party
to Consultant for any reason including the identification of the
Company as a potential purchaser or seller of such corporation or
business (a "Transaction Commission"). The Company hereby waives any
conflict of interest that may arise due to any transaction wherein
Consultant receives such a Transaction Commission, including, but not
limited to, any conflict of interest which may arise as a result of
the dual representation by Consultant of the seller or purchaser of a
corporation or business on the one hand, and the Company on the other.
6. TERMINATION. The Company can terminate this Agreement at any time with
30 days written notice; provided, however, that the Company shall remain
liable for all fees paid under Section 5, and any unpaid reimbursement
obligation pursuant to Section 5.
7. NOTICE. Any notice required, permitted or desired to be given pursuant to
any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or
sent by certified mail, return receipt requested, postage and fees prepaid,
or by national overnight delivery prepaid service to the parties at their
addresses set forth below. Any party hereto may at any time and from time
to time hereafter change the address to which notice shall be sent
hereunder by notice to the other party given under this paragraph. The date
of the giving of any notice sent by mail shall be the day two days after
the posting of the mail, except that notice of an address change shall be
deemed given when received. The addresses of the parties are as follows:
TO CONSULTANT:
▇▇▇▇▇▇▇ INVESTISSEMENTS LIMITED
Avenue ▇▇▇▇▇▇ 200
Post Office ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Attn: President
TO THE COMPANY:
Omni Nutraceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
8. WAIVER. No course of dealing nor any delay on the part of either party in
exercising any rights hereunder will operate as a waiver of any rights of
such party. No waiver of any default or breach of this Agreement or
application of any term, covenant or provision
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hereof shall be deemed a continuing waiver or a waiver of any other breach
or default or the waiver of any other application of any term, covenant or
provision.
9. DEFINITION OF "REASONABLE AND BEST EFFORTS." Reasonable and best efforts
shall not include the payment of any non-reimbursable out-of-pocket costs
or other payments by Consultant. Consultant shall not guarantee, make any
representation concerning (which representation would survive the closing
of any escrow or other transaction) or warrant (i) the condition,
performance, value, or profitability of any business purchased, sold by, or
otherwise considered for purchase by the Company; (ii) the validity or
authorization of any capital stock purchased, sold by, or otherwise
considered for purchase by the Company; (iii) the market value of any
capital stock, business or assets purchased, sold by, or otherwise
considered for purchase by the Company; (iv) the ability to finance,
refinance or otherwise mortgage or encumber any business or corporation
purchased, sold by, or otherwise considered for purchase by the Company; or
(vi) that Consultant will find or present any business or corporation which
the Company will consider, approve or ultimately purchase or be able to
purchase; or (7) the covenants, representations or warranties of any party
to any stock purchase, asset purchase, merger or other agreement entered
into by the Company with any third party.
10. SUCCESSORS; BINDING AGREEMENTS. Prior to the effectiveness of any
succession (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of
the Company, the Company will require the successor to expressly assume and
agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
occurred. As used in this Agreement, "Company" shall mean the Company as
defined above and any successor to its business and/or assets which
executes and delivers the Agreement provided for in this Section 10 or
which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law or otherwise.
11. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. Any signature by facsimile
shall be valid and binding as if an original signature were delivered.
12. CAPTIONS. The caption headings in this Agreement are for convenience of
reference only and are not intended and shall not be construed as having
any substantive effect.
13. GOVERNING LAW. This Agreement shall be governed, interpreted and construed
in accordance with the laws of the state of California applicable to
agreements entered into and to be performed entirely therein. Any suit,
action or proceeding with respect to this Agreement shall be brought
exclusively in the state courts of the state of California or in the
federal courts of the United States which are located in Los Angeles,
California. The parties hereto hereby agree to submit to the jurisdiction
and venue of such courts for the
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purposes hereof. Each party agrees that, to the extent permitted by law,
the losing party in a suit, action or proceeding in connection herewith
shall pay the prevailing party its reasonable attorneys' fees incurred in
connection therewith.
14. ENTIRE AGREEMENT/MODIFICATIONS. This Agreement constitutes the entire
agreement between the parties and supersedes all prior understandings and
agreements, whether oral or written, regarding Consultant's retention by
the Company; provided, however, that all fees previously earned and/or paid
to Consultant under prior agreements shall be deemed earned, and shall be
in addition to any fees payable hereunder. This Agreement shall not be
altered or modified except in writing, duly executed by the parties hereto.
15. WARRANTY. The Company and Consultant each hereby warrant and agree that
each is free to enter into this Agreement, that the parties signing below
are duly authorized and directed to execute this Agreement, and that this
Agreement is a valid, binding and enforceable against the parties hereto.
16. SEVERABILITY. If any term, covenant or provision, or any part
thereof, is found by any court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, the same shall not affect the
remainder of such term, covenant or provision, any other terms, covenants
or provisions or any subsequent application of such term, covenant or
provision which shall be given the maximum effect possible without regard
to the invalid, illegal or unenforceable term, covenant or provision, or
portion thereof. In lieu of any such invalid, illegal or unenforceable
provision, the parties hereto intend that there shall be added as part of
this Agreement a term, covenant or provision as similar in terms to such
invalid, illegal or unenforceable term, covenant of provision, or part
thereof, as may be possible and be valid, legal and enforceable.
17. CONFIDENTIALITY. Consultant hereby agrees, and agrees to cause its
officers, directors, shareholders and affiliates ("Consultant's
Representatives") to treat all information received by Consultant or
Consultant's Representatives concerning the Company or its business,
financial condition, prospects and affairs, or Company Objectives, or other
confidential information it may receive in the course of performing
Services (unless already in the public domain through no breach of any duty
owed the Company) as confidential proprietary information and it will not
use, and shall cause all Consultant's Representatives not to use such
information except in connection with the performance of Services
hereunder. In the event this Agreement is Terminated, all such information
shall be returned to the Company.
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IN WITNESS HEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
▇▇▇▇▇▇▇ INVESTISSEMENTS LIMITED OMNI NUTRACEUTICALS, INC.
By: /s/ Raoul Berthamieu By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------- ----------------------
Name: Raoul Berthamieu ▇▇▇▇▇ ▇▇▇▇▇▇▇
President President
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