Exhibit 10.3
[REFILED TO CORRECT ERRORS IN PREVIOUSLY FILED AGREEMENT.]
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is effective as of 2nd day
of July 2003 by and between Ageless Enterprises, LLC, a Utah Limited Liability
Company having its principal place of business at 0000 Xxxxx Xxxx Xxxxx, Xxxx
Xxxxxx, Xxxx 00000 (the "Consultant") and Source Direct, Incorporated, a Idaho
corporation having its principal place of business at 0000 Xxxxx Xxxxxxxx Xxx,
Xxxxx Xxxxx, Xxxxx 00000 ("Company").
RECITALS:
A. The Company and Consultant desire to set forth the terms and
conditions on which (i) the Company shall engage the Consultant, (ii) Consultant
shall render services to the Company or a subsidiary of the Company, and (iii)
the Company shall compensate Consultant for such services to the Company; and
B. In connection with the engagement of Consultant by the Company,
the Company desires to restrict Consultant's rights to disclose certain
confidential information of, or compete with, the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. ENGAGEMENT OF CONSULTANT
1.1 Engagement. The Company hereby engages Consultant and
Consultant hereby accepts engagement with the Company upon the terms and
conditions hereinafter set forth.
1.2 Independent Contractor. Consultant shall be an
independent contractor and not an agent or employee of the Company. Consultant
shall not have any power or authority to bind the Company. The Company shall not
provide office space or office materials to Consultant to provide the services
set forth in this Agreement. Except for the compensation to be provided herein,
Consultant shall not be entitled to any of the benefits provided by the Company
to its employees. Consultant shall be responsible for and shall pay any and all
state, federal, or local taxes on compensation paid to Consultant hereunder.
2. TERM
2.1 Initial Term. The term of this Agreement (the "Term")
shall be for a period commencing on the Effective Date (as defined in subsection
2.2 below) of this Agreement through July 2, 2004, subject, however, to prior
termination as provided herein below, in Section 6.
2.2 Effective Date. The effective date of this Agreement
shall be July 2, 2003.
3. COMPENSATION
As an inducement to Consultant to enter into this Agreement, and
to provide a means of enhancing Consultant's proprietary interest in the
Company, and to increase Consultant's incentive, the Company shall issue to
Consultant 2,500,000 shares of common stock.
In addition to the stock, the Company shall pay to the
Consultant $66,000 for the development of a marketing program that is detailed
in Section 4 of this agreement. The Consultant agrees to pay for any expenses
incurred in this marketing program as outlined in Section 5.
4. DUTIES AND RESPONSIBILITIES
The following are the duties and responsibilities that Ageless
Enterprises LLC agrees to perform for and in behalf of the Company: Redesign and
rewrite the Company website, write and design product trifolds, print 2,000
trifolds, redesign Stain Pen logo, design artwork for the Stain Pen Blister
Pack, develop Stain Pen POP materials and deliver a minimum of 10 samples,
develop investor and sales package including a power point color set
presentation, print a minimum of 100 investor/sales packs, assist in the
developing the initial press releases, assist in preparing and presenting at the
shareholders meeting, assist in developing a product pricing format, develop two
sampling program advertisements intended to get brand awareness and drive
traffic to the website, help recruit a product broker for the Surface Protectant
product and assist in Club store program and give general advice in developing
the overall business.
5. ADDITIONAL CONSULTANT COVENANTS
5.1 Confidential Information. Consultant recognizes and
acknowledges that certain information, including, but not limited to,
information pertaining to the financial condition of the Company, its systems,
methods of doing business, agreements with customers or suppliers, or other
aspects of the business of the Company or which are sufficiently secret to
derive economic value from not being disclosed (hereinafter "Confidential
Information") may be made available or otherwise come into the possession of
Consultant by reason of his engagement with the Company. Accordingly, Consultant
agrees that he will not (either during or after the term of his Agreement with
the Company) disclose any Confidential Information to any person, firm,
corporation, association, or other entity for any reason or purpose whatsoever
or make use to his personal advantage or to the advantage of any third party, of
any Confidential Information, without the prior written consent of the Board of
Directors (the "Board"). Consultant shall, upon termination of this Agreement,
return to the Company all documents, which reflect Confidential Information
(including copies thereof). Notwithstanding anything heretofore stated in this
subsection 5.1, Consultant's obligations under this subsection 5.1 shall not,
after termination of this Agreement, apply to information which has become
generally available to the public without any action or omission of Consultant
(except that any Confidential Information which is disclosed to any third party
by Consultant or representative of the Company who is authorized to make such
disclosure shall be deemed to remain confidential and protectable under this
subsection 5.1).
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5.2 Records. All files, records, memoranda, and other
documents regarding former, existing, or prospective customers of the Company or
relating in any manner whatsoever to Confidential Information or the business of
the Company (collectively "Records"), whether prepared by Consultant or
otherwise coming into his possession, shall be the exclusive property of the
Company. All Records shall be immediately placed in the physical possession of
the Company upon the termination of this Agreement, or at any other time
specified by the Board. The retention and use by the Consultant of duplicates in
any form of Records after termination of this Agreement is prohibited.
5.3 Remedies. Consultant hereby recognizes and acknowledges
that irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Consultant of any of the terms or provisions of
this Section 5, and Consultant therefor agrees that the Company shall be
entitled to an injunction restraining Consultant from engaging in any activity
constituting such breach or threatened breach. Nothing contained herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to the Company at law or in equity for such breach or threatened breach,
including, but not limited to, the recovery of damages from Consultant and the
termination of his engagement with the Company in accordance with the terms of
this Agreement.
6. TERMINATION
6.2 Termination Upon Death or Disability or By Company. This
Agreement shall be terminated upon the death or permanent disability of the
Consultant and may be terminated by the Company upon 30 days' written notice. If
this Agreement is terminated pursuant to this subsection 6.2, the shares issued
as compensation hereunder shall immediately vest.
6.3 Termination by Mutual Consent. This Agreement may be
terminated upon the mutual agreement of the parties. The Consultant shall
immediately return any unvested shares upon such termination.
6.4 Termination By Consultant. Consultant has the right to
terminate this Agreement for any reason, upon 30 days prior written notice to
the Company. If the Consultant so terminates this Agreement, all unvested shares
shall terminate and be returned to the Company, and no further compensation
shall be due or payable after the date of termination.
6.5 Return of Documents Following Termination. In the event
of termination of this Agreement, Consultant agrees to deliver promptly to the
Company all equipment, notebooks, documents, memoranda, reports, files, samples,
books, correspondence, lists, or other written or graphic records, and the like,
relating to the Company's business, which are or have been in his possession or
under his control.
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7. THE COMPANY'S AUTHORITY
Consultant agrees to observe and comply with the reasonable
rules and regulations of the Company as adopted by the Board either orally or in
writing respecting performance of his duties and to carry out and perform
orders, directions, and policies stated by the Board, to him from time to time,
either orally or in writing.
8. ASSIGNMENT
8.1 Personal Contract of Consultant. This Agreement is a
personal contract, and the duties and obligations of the Consultant hereunder
may not be transferred or assigned, except upon the written permission of the
Company.
8.2 Assignment by Company. The Company shall have the right
to assign this Agreement to any successor of substantially all of its business
or assets, and any such successor shall be bound by all of the provisions
hereof.
10. CORPORATE APPROVALS
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board, is not in conflict with any Bylaw or other agreement and will be a
binding obligation of the Company, enforceable in accordance with its terms
11. MISCELLANEOUS
11.1 Notices. All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement shall
be in writing addressed to the other party at the address set forth below and
shall be conclusively deemed to have been duly given when:
(a) Hand-delivered to the other party;
(b) Received when sent by telex or facsimile at the
address and number set forth below;
(c) The next business day after same have been
deposited with a national overnight delivery service, shipping prepaid,
addressed to the parties as set forth below with next-business day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery service provider; or
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(d) Three business days after mailing if mailed from
within the continental United States by registered or certified mail, return
receipt requested, addressed to the parties as set forth below.
Company: Source Direct Incorporated
0000 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxxxx, Xxxxx
Facsimile Number (000) 000-0000
Attention: Xxxxx Xxxxx
Consultant: Ageless Enterprises, LLC
0000 Xxxxx Xxxx Xxxxx
Xxxx Xxxxxx, Xxxx 00000
Facsimile Number (000) 000-0000
11.2 Attorneys' Fees. If any legal action or other proceeding
is brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties will
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they
may be entitled.
11.3 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to the
subject matter contained in it and supercedes all prior and contemporaneous
agreements, representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement will be binding unless executed in
writing by all the parties or the applicable parties to be bound by such
amendment. No waiver of any of the provisions of this Agreement will constitute
a waiver of any other provision, whether or not similar, nor will any waiver
constitute a continuing waiver. No waiver will be binding unless executed in
writing by the party making the waiver.
11.4 Governing Law. This Agreement and the rights and duties
of the parties hereto shall be construed and determined in accordance with the
laws of the State of Idaho, and any and all actions to enforce the provisions of
this Agreement shall be brought in a court of competent jurisdiction in
Bonneville County and of the federal district courts located in Boise, Idaho, in
the State of Idaho, and in no other place.
11.5 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the intent of
the parties that all other provisions of this Agreement be construed to remain
fully valid, enforceable, and binding on the parties.
11.6 Effect of Headings. The subject headings of the sections
and subsections of this Agreement are included for convenience only and will not
affect the construction of any of its provisions.
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11.7 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken together
shall be deemed to constitute one instrument. Delivery of an executed
counterpart of this Agreement by facsimile shall be equally as effective as
delivery of a manually executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by facsimile also shall
deliver a manually executed counterpart of this Agreement, but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Agreement.
11.8 Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms and
conditions of this Agreement, that each party has had the benefit of counsel, or
has been advised to obtain counsel, and that each party has freely agreed to be
bound by the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
THE COMPANY: SOURCE DIRECT INCORPORATED
By /s/ Xxxxx Xxxxx
----------------------------
Xxxxx Xxxxx, President
CONSULTANT: /s/ Xxxxxx Xxxxx, Agent
----------------------------
Ageless Enterprises, LLC
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