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EXHIBIT 10.6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is executed as of the 8th
day of March, 1996, by and between PACIFIC SOFTWORKS, INC., a California
corporation (the "Company") and XXXXXXX XXXXXXXXX ("Consultant") and is made
with respect to the following facts:
A. Consultant is knowledgeable regarding the business of the
Company.
B. The Company desires to obtain the consulting services of
Consultant relating to the location of inventory sources, pricing strategies of
the Company's products and advertising and promotion strategies using
Consultant's extensive expertise and experience with similar products (the
"Consulting Services"), and Consultant desires to provide these services to the
Company.
C. Consultant and the Company believe it is in their mutual best
interests to enter into this Agreement pursuant to the terms hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Term of Agreement. The term of this agreement shall commence as
of March 8, 1996 and shall remain in full force and effect, unless terminated as
provided in Section 7 of this Agreement, until August 31, 1999.
2. Services of Consultant. The Company hereby engages Consultant and
Consultant hereby agrees to perform the Consulting Services as described in
Section 3 of this Agreement.
3. Time and Efforts. Consultant agrees that she shall be available
to the Company for up to a maximum of fifteen (15) hours per month during the
term of this Agreement. The Consulting Services may be performed at any location
within or outside Ventura County, California, as Consultant in his sole
discretion shall determine. The exact date and time of the Consulting Services
shall be as requested by the Company, but subject to the availability of
Consultant as determined by Consultant within his sole discretion. If the
Company does not request the performance of fifteen (15) hours of Consulting
Services for any month during the term of this Agreement, the unused time shall
lapse and not be carried forward to the next month.
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4. Compensation. During the term of this Agreement, the Company shall
pay, in full payment for the Consulting Services hereunder, Six Hundred Thousand
Dollars ($600,000), payable in forty-two [42] equal installments on the first
day of each month, commencing March 8, 1996. Consultant shall be entitled to the
entire consideration provided hereunder, notwithstanding any early termination
of this Agreement. Consultant may, if the Company fails to make any payment when
due within five (5) days of when notice of defaults is given to the Company,
accelerate payment of all sums due hereunder if the Company fails to pay any
installment when due.
5. Expenses. Consultant shall not be obligated to perform any services
which would require the incurrence of any expense unless the Company agrees in
writing to reimburse the Company for such expenses.
6. Interest. Any sum accruing to Consultant under this Agreement which
is not paid when due shall bear interest at the rate of ten percent (10%) per
annum from the date due until paid.
7. Termination. This Agreement may only be terminated by the mutual
written agreement of Consultant and the Company to terminate. This Agreement
shall not be terminated by the death or disability of any employee, officer,
director or shareholder of Consultant or by the occurrence of any other event.
8. Independent Contractor. The relationship of Consultant to the Company
hereunder shall be that of an independent contractor. The Company shall pay
Consultant directly, without payroll deductions of any kind whatsoever.
Consultant shall have the responsibility to discharge all of the obligations of
an independent contractor under federal, state and local law, including those
obligations relating to taxes, unemployment compensation and insurance, Social
Security, worker's compensation, disability, pensions and tax withholdings.
Nothing contained herein shall be construed to create the relationship between
the Company and Consultant of employer and employee.
9. Notices. Unless applicable law requires a different method of giving
notice, any and all notices, demands or other communications required or desired
to be given hereunder by any party shall be in writing and shall be validly
given or made to another party if served personally or if deposited in the
United States mail, certified or registered, postage prepaid or if transmitted
by telegraph, telecopy or other electronic written transmission device. If such
notice, demand or other communication is served personally, service shall be
conclusively deemed made at the time of such personal service. If such notice,
demand or other communication is given by mail, such shall be
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conclusively deemed given seventy-two (72) hours after the deposit thereof in
the United States mail, or if by telegraph or if by other carrier service, upon
confirmation of delivery by the carrier, addressed to the party to whom such
notice, demand or other communication is to be given as follows:
To Company: Pacific Softworks, Inc.
000 Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
To Consultant: Xxxxxxx Xxxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Jeffer, Mangels, Xxxxxx &
Marmaro LLP
2121 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxxx X. Xxxxx, Esq.
Any party hereto may change its address for the purpose of receiving notices,
demands and other communications as herein provided by a written notice given
in the manner aforesaid to the other party or parties hereto.
10. Indemnification. Company hereby agrees to indemnify, defend and
hold Consultant harmless from and against any and all claims, actions, demands,
lawsuits, causes of action, expenses (including attorneys' fees and court
costs), liabilities, interest, taxes, penalties and any and all other damages
(collectively, the "Claims") which Consultant may suffer and which result from
or arise out of, or are in connection with, any of the acts of Company.
11. Attorneys' Fees. Should any party hereto engage an attorney or
institute any action or proceeding at law or in equity, or in connection with an
arbitration, to enforce any provision of this Agreement, including an action for
declaratory relief, or for damages by reason of an alleged breach of any
provision of this Agreement, or otherwise in connection with this Agreement, or
any provision thereof, the prevailing party shall be entitled to recover from
the losing party or parties actual attorneys' fees and costs for services
rendered to the prevailing party in such action or proceeding.
12. Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance or interpretation
thereof, shall be settled by arbitration in Ventura County, California in
accordance with the rules of the American Arbitration Association then
existing, and judgment on
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the arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy. The parties further agree that a restraining
order, injunction, writ of possession and/or writ of attachment may be applied
for from a court of competent jurisdiction by any party pending resolution of
the dispute. The arbitrators selected shall be persons experienced in
negotiating, making and consummating agreements of the type of this Agreement.
13. Full Authority. Each of the parties and signatories to this
Agreement represents and warrants that he or she has the full right, power,
legal capacity and authority to enter into and perform the parties' respective
obligations hereunder and that such obligations shall be binding upon such
party without the requirement of the approval or consent of any other person or
entity in connection herewith. Each person signing this Agreement on behalf of
an entity represents and warrants that he or she has the full right, power,
legal capacity and authority to sign this Agreement on behalf of such entity.
14. Time of the Essence. Time is of the essence of this Agreement,
and in all the terms, provisions, covenants and conditions hereof.
15. Applicable Law. This Agreement shall, in all respects, be
governed by the laws of the State of California applicable to agreements
executed and to be wholly performed within California.
16. Severability. Nothing contained herein shall be construed so as
to require the commission of any act contrary to law, and wherever there is any
conflict between any provisions contained herein and any present or future
statute, law, ordinance or regulation, the latter shall prevail; but the
provision of this Agreement which is affected shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the law.
17. Further Assurances. Each of the parties hereto shall execute
and deliver any and all additional papers, documents and other assurances, and
shall do any and all acts and things reasonably necessary in connection with
the performance of their obligations hereunder to carry out the intent of the
parties hereto.
18. Modifications or Amendments. No amendment, change or
modification of this Agreement shall be valid, unless in writing and signed by
all of the parties hereto.
19. Successors and Assigns. All of the terms and provisions
contained herein shall inure to the benefit of and
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shall be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
20. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to its subject matter
and any and all prior agreements, understandings or representations with
respect to its subject matter are hereby terminated and cancelled in their
entirety and are of no further force or effect.
21. Non-Waiver. No waiver by any party hereto of a breach of any
provision of this Agreement shall constitute a waiver of any preceding or
succeeding breach of the same or any other provision hereof.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
23. Number and Gender. In this Agreement, the masculine, feminine or
neuter gender, and the singular or plural number, shall each be deemed to
include the others whenever the context so requires.
24. Captions. The captions appearing at the commencement of the
sections hereof are descriptive only and for convenience in reference. Should
there be any conflict between any such caption and the section at the head of
which it appears, the section and not such caption shall control and govern in
the construction of this Agreement.
25. Expenses. Each of the parties shall pay all of their own costs,
legal fees, accounting fees, and any other expenses incurred or to be incurred
by it or them in negotiating and preparing this Agreement, and closing and
carrying out the transactions contemplated by this Agreement.
26. Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties and their respective
successors and assigns, nor is anything in this Agreement intended to relieve
or discharge the obligation or liability of any third persons to any party to
this Agreement, nor shall any provision give any third person any right of
subrogation or action over or against any party to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"COMPANY" Pacific Softworks, Inc.
a California corporation
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Secretary
"CONSULTANT"
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Xxxxxxx Xxxxxxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"COMPANY" Pacific Softworks, Inc.
a California corporation
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Xxxxx Xxxxxxx,
Secretary
"CONSULTANT" /s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx
