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Exhibit No. 10(ix)
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (this "Agreement"), dated as of February 28 ,
2001, between FanZ Enterprises, Inc., a Delaware corporation(together with its
successors and assigns permitted under this Agreement, the "Company"), and
Xxxxxxx X. Xxxxxxxxxx, an individual residing at 000 Xxxxxxxx, Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Consultant and the Company have entered into a
Confidentiality Agreement dated as of the 1st day of February, 2001 (the
"Confidentiality Agreement"); and
WHEREAS, the Company and the Consultant desire to enter into a
consulting arrangement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Consultant (individually, a
"Party" and together, the "Parties") agree as follows:
1. CONSULTING. The Company hereby engages the Consultant, and the
Consultant hereby agrees to serve the Company, as its consultant on the terms
and conditions set forth herein and subject to the terms and conditions of the
Confidentiality Agreement. During the Consulting Term (as defined below), the
Consultant will have access to the personnel and facilities of the Company as
deemed necessary by the Consultant.
2. TERM. The term of this Agreement shall begin on the date hereof and
shall continue until the occurrence of any of the following: (i) the closing by
the Company of its public offering for a minimum of Ten Million Dollars
($10,000,000) in equity; (ii) the date upon which the Company shall notify the
Consultant in writing that it has abandoned its public offering; (iii) the
employment agreement between the Consultant and the Company becomes effective;
or (iv) the termination of this Agreement as provided in Section 5. The term of
this Agreement as provided for in this Section 2 shall be referred to in this
Agreement as the "Consulting Term").
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3. POSITION AND DUTIES; PLACE OF PERFORMANCE.
(a) The Consultant shall provide such consulting services to
the Company as are reasonably requested by the Company from time to
time.
(b) The Consultant shall devote such time to performing
services hereunder as the Consultant and the Company may mutually agree
from time to time.
4. CONSIDERATION. The Consultant shall be entitled to an Option to
purchase up to 500,000 shares of the Company' Common stock on the terms and
conditions of that certain Option Agreement dated as of the date hereof and
attached hereto as Exhibit A.
5. TERMINATION OF CONSULTING. The Company at the Company's sole
discretion may terminate the Consultant's consulting.
6. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns; provided, however, that no rights and/or obligations of the Consultant
under this Agreement may be assigned or transferred by the Consultant. The
rights and/or obligations of the Company may be freely assigned by the Company
to any entity now existing or created in the future that is owned in part or in
whole by either or both of the current Members of the Company.
7. ENTIRE AGREEMENT. Except to the extent otherwise provided herein,
this Agreement, the Option Agreement, and the Confidentiality Agreement,
contains the entire understanding and agreement between the Parties concerning
the subject matter hereof and supersedes any prior agreements, whether written
or oral, between the Parties concerning the subject matter hereof.
8. AMENDMENT OR WAIVER. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by both the Consultant
and an authorized officer of the Company. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Consultant or
an authorized officer of the Company, as the case may be.
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9. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
10. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of the Consultant's consulting with the
Company to the extent necessary to the intended preservation of such rights and
obligations as described in this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of Delaware, without reference to
principles of conflict of laws.
12. NOTICES. Any notice given to either party shall be in writing and
shall be deemed to have been given when delivered personally or one (1) day
after having been sent by overnight courier service or three (3) days after
having been sent by certified or registered mail, postage prepaid, return
receipt requested, duly addressed to the party concerned at the address
indicated below or to such changed address as such party may subsequently give
such notice of:
If to the Company: FanZ Enterprises, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: 978/383-8296
Attention: Xxxxxxxxx X. XxXxxxxx XX
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With a copy to: Benesch, Friedlander,
Xxxxxx & Xxxxxxx LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone No.(000)000-0000
Facsimile No.(000)000-0000
Attention: Xxxxx X. Xxxx
If to the Consultant: Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxxxx, Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone No. (000)000-0000
Facsimile No.:(000)000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
With a copy to: --------------------------------------
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Facsimile No.:
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Attention:
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13. HEADINGS. The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
[Remainder of This Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the Parties have executed this CONSULTING AGREEMENT
as of the date and year first above written.
FANZ ENTERPRISES, INC.
By: /s/ Xxxxxxxxx X. XxXxxxxx, XX
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Its: President
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CONSULTANT:
XXXXXXX X. XXXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxxx
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