Consulting Agreement
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This CONSULTING AGREEMENT ("Agreement") made and entered into as of
the 1st day of August 2001, by and between Silk Botanicals. Com, Inc.,
(the "Corporation"), and Xxxxxxx X. Xxxxxxxxx (the "Consultant").
1. APPOINTMENT OF CONSULTANT. The Corporation appoints the
Consultant and the Consultant accepts appointment on the terms and
conditions provided in this Agreement as a consultant to the
Corporation's business, including any other corporations hereafter
formed or acquired by the Corporation to engage in any business.
2. SCOPE OF SERVICES. The services to be rendered by the Consultant
shall relate to providing public relations services to the Company
including, but not limited to promoting and advertising the Company's
products and services, preparing and disseminating press releases and
providing other non financial public relations activities, promotional
and marketing strategies and other advice as requested by the
President.
3. BOARD OF DIRECTORS SUPERVISION. The activities of the Consultant
to be performed under this Agreement shall be subject to the
supervision of the Board of Directors of the Corporation (the "Board")
to the extent required by applicable law or regulation and subject to
reasonable policies not inconsistent with the terms of this Agreement
adopted by the Board and in effect from time to time. Where not
required by applicable law or regulation, the Consultant shall not
require the prior approval of the Board to perform its duties under
this Agreement. The Board has approved this Agreement.
4. AUTHORITY OF CONSULTANT. Subject to any limitations imposed by
applicable law or regulation, the Consultant shall render management
and consulting services to the Corporation, which services shall
include advice and assistance concerning any and all aspects of the
operations and planning of the Corporation as needed from time to
time. These services shall include but not be limited to conducting
relations on behalf of the Corporation with accountants, attorneys,
and financial advisors. The Consultant will also make reports to the
Corporation as requested by the Board of Directors. The Consultant
will use its best efforts to cause its employees and agents to give
the Corporation the benefit of their special knowledge, skill and
business expertise to the extent relevant to the Corporation's
business and affairs. The Consultant shall make introductions to
companies who are possible strategic partners, and assist the
Corporation in developing strategic relationships with these
companies. The Consultant shall find, interview and assist the
Corporation in hiring executives as the need for such executive
arises. In addition, the consultant shall render advice and expertise
in connection with any acquisitions or dispositions taken by the
Corporation and shall from time to time bring to the attention of the
Corporation acquisition opportunities, as the Consultant deems
appropriate in its sole discretion.
5. REIMBURSEMENT OF EXPENSES; INDEPENDENT CONTRACTOR. All
obligations or expenses reasonably incurred by the Consultant in the
performance of its duties under this Agreement, which are performed
with the prior written or oral approval of the Corporation shall be
for the account of, on behalf of, and at the expense of the
Corporation. Provided that no such written or oral approval shall be
required for reimbursement of any individual expense that is less than
$100. The Consultant shall not be obligated to make any advance to or
for the account of the Corporation without assurance that the
necessary funds are held in accounts maintained by the Corporation;
nor shall the Consultant be obligated to incur any liability or
obligation for the account of the Corporation without assurance that
the necessary funds for the discharge of such liability or obligation
will be provided. The Corporation shall reimburse each such expense
within 15 days of submission by the Consultant to the Corporation of a
properly documented expense report. The Consultant shall be an
independent contractor, and nothing contained in this Agreement shall
be deemed or construed (i) to create a partnership or joint venture
between the Corporation and the Consultant to be responsible in any
way for the debts, liabilities or obligations of the Corporation or
any other party; or (iii) to constitute the Consultant or any of its
employees as employees, officers or agents of the Corporation. The
Exhibit 99.1 - Pg. 1
Consultant shall not hold itself out or permit itself to be regarded
(to the extent practical) as an employee, officer or agent of the
Corporation and shall strictly avoid any act or omission that may
reasonably lead to a contractual or tortuous claim against or
liability to the Corporation.
6. OTHER ACTIVITIES OF CONSULTANT. The Corporation acknowledges and
agrees that neither the Consultant nor any of the Consultant's
employees, officers, directors, affiliates or associates shall be
required to devote full time business efforts to the duties of the
Consultant specified in this Agreement, but instead shall devote only
so much of such time and efforts as the Consultant reasonably deems
necessary to fulfill its obligations under this Agreement. The
Corporation further acknowledges and agrees that the Consultant and
its affiliates are engaged in the business of advising other clients
and plans to continue to be engaged in such businesses during the term
of the Agreement. No aspect or element of such activities shall be
deemed to be engaged in for the benefit of the Corporation or any of
its subsidiaries or to constitute a conflict of interest.
7. COMPENSATION OF CONSULTANT. In consideration of Consultant's
agreement to provide the management services described herein, the
Corporation will authorize and issue 3,000 shares of common stock of
the Corporation to Xxxxxxx Xxxxxxxxx. In the event the Corporation
elects to include the Consultant's shares in a Form S-8 Registration
Statement, such shares shall not be used for capital financing
purposes.
8. TERM. This Agreement shall commence as of the date hereof and
shall remain in effect through December 31, 2002.
9. TERMINATION UPON BREACH. Either the Corporation or the Consultant
may terminate this Agreement in the event of the breach of any of the
material terms or provisions of this Agreement by the other party,
which breach is not cured within 10 business days after notice of the
same is given to the party alleged to be in breach by the other party.
10. STANDARD OF CARE. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be liable for any
damages suffered by the Corporation which are caused by any mistake of
fact, errors of judgment, or by any acts or omissions of any kind of
the Consultant, unless caused by the intentional misconduct,
recklessness or gross negligence of the Consultant. Consultant agrees
that it will comply with all applicable U.S. federal or state laws
including securities law and that any material violation thereof will
constitute a breach of this agreement.
11. CONFIDENTIALITY. All information, knowledge and data relating to
or concerned with the operations, business and affairs of the
Consultant or the Corporation which are exchanged by the parties
hereto in connection with the performance by the Consultant of its
duties hereunder shall be the property of the Corporation. The
information, knowledge and data shall be treated as confidential
information and shall be held in a fiduciary capacity by the parties
hereunder. Neither the Consultant nor the Corporation shall disclose
or divulge such information to any firm, person, corporation, or other
entity other than as required by law or in connection with the
performance of its duties hereunder.
12. ASSIGNMENT. Without the consent of the Consultant, the
Corporation shall not assign, transfer or convey any of its rights,
duties or interest under this Agreement; nor shall it delegate any of
the obligations or duties required to be kept or performed by it
hereunder. The Consultant shall not assign, transfer or convey any of
its rights, duties or interests under this Agreement, nor shall it
delegate any of the obligations or duties required to be kept or
performed by it under this Agreement, except that the Consultant may
transfer its rights and obligations hereunder to one of its
affiliates, or to assignee who utilizes the services of employees of
the Consultant.
13. NOTICES. All notices, demands, consents, approvals and requests
given by either party to the other hereunder shall be in writing and
shall be personally delivered or sent by registered or certified mail,
return receipt requested, postage prepaid, to the parties at the
following addresses:
Exhibit 99.1 - Pg. 2
If to the Corporation:
Silk Botanicals. Com, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
If to the Consultant:
Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxxx (Xx#00)
Xxxxxx, XX 00000
Any party may at any time change its respective address by sending
written notice to the other party of the change in the manner
hereinabove prescribed.
16. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement,
or the application of such term or provision to persons or
circumstance other than those as to which it is held invalid or
enforceable, shall be valid and be enforced to the fullest extent
permitted by law.
17. NO WAIVER. The failure by any party to exercise any right, remedy
or elections herein contained, or permitted by law, shall not
constitute or be construed as a waiver or relinquishment for the
future exercise of such right, remedy or election, but the same shall
continue and remain in full force and effect. All rights and remedies
that any party may have at law, in equity or otherwise upon breach of
any term or condition of this Agreement, shall be distinct, separate
and cumulative rights and remedies and no one of them, whether
exercised or not, shall be deemed to be in exclusion of any other
right or remedy.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the matters herein
contained and any change or modification must be in writing and signed
by the party against whom enforcement of the change or modification is
sought.
19. GOVERNING LAWS. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey. The sole venue
for any action relative to this agreement shall be in the State or
federal Courts of Middlesex County, New Jersey.
IN WITNESS WHEREOF, if the parties hereto have caused this Consulting
Agreement to be duly executed by their authorized representatives as
of the date first above written.
The Silk Botanicals. Com, Inc.
By:___ /s/ Xxxxxx Bergmann_____
Xxxxxx Xxxxxxxx
President & CEO
By:_/s/ Xxxxxxx X. Margulies___
Xxxxxxx X. Xxxxxxxxx
Exhibit 99.1 - Pg. 3
