EXHIBIT 99.29
CONSULTING AGREEMENT PAGE 1 of 7
BETWEEN
VITAFORT INTERNATIONAL CORPORATION
AND
XXXXX XXXXX
TABLE OF CONTENTS
PARAGRAPH NO. PAGE NO.
------------- --------
1 Engagement by Consultant 2
2 Term 2
3 Compensation 2
4 Independent Contractor 3
5 Assignment 3
6 Non-Competition 3
7 Confidentiality 4
8 Termination 4
9 Disclaimer of Responsibility for Acts of Company 5
10 General Provisions 5
10.1 Governing Law and Jurisdiction 5
10.2 Attorneys Fees 5
10.3 Complete Agreement 5
10.4 Binding 6
10.5 Notices 6
10.6 Unenforceable Terms 6
10.7 Execution in Counterparts 6
10.8 Further Assurance 7
10.9 Incorporation by Reference 7
10.10 Miscellaneous provisions 7
CONSULTING AGREEMENT PAGE 2 Of 7
THIS CONSULTING AGREEMENT ("Agreement"), is made and entered into on this 2nd
day of November, 1995 ("Effective Date") by and between Vitafort
International Corporation, a Delaware corporation ("Company") and XXXXX XXXXX
("Consultant").
RECITALS
Company desires to engage Consultant to perform certain consulting services for
it and Consultant desires, subject to the terms and conditions of this
Agreement, to perform consulting services for the Company.
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKINGS HEREIN
CONTAINED AND FOR OTHER GOOD AND MUTUAL CONSIDERATION, THE RECEIPT AND
SUFFICIENCY WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. ENGAGEMENT BY CONSULTANT.
Company hereby engages Consultant and Consultant hereby agrees to hold himself
available to render, and to render at the request of the Company, independent
advisory and consulting services for the Company to the best of his ability,
upon the terms and conditions hereinafter set forth. Such consulting services
shall include, but not be limited to, consulting advice and performance of
services with respect to securing and improving sales, gross margin, effective
distribution, and customer relations. In connection with the foregoing, the
Company shall provide Consultant with copies of all public information about
the Company and its operations, as Consultant may reasonably request.
2. TERM.
This Agreement shall expire January 30, 1995, unless terminated or extended in
accordance with provisions of this Agreement.
3. COMPENSATION.
3.1) The Company agrees to reimburse all reasonable pre-approved out-of-
pocket costs directly related to those services.
CONSULTING AGREEMENT PAGE 3 OF 7
3.2) Upon execution of this agreement, and subject to the approval of the
Company's Board of Directors, as minimum compensation for all
services rendered by Consultant under this Agreement, the Company
shall issue to Consultant 75,000 shares ("Common Shares") of the
Company's common stock, which will vest ratably by month (25,000
shares per month). Additionally, the Company will grant a two-year
option to purchase 25,000 shares at market price on the date hereof,
which will vest ratably upon achieving significant sales as a direct
result of Consultant's efforts. Consultant understands that
determination of vesting level will be made soley at the discretion
of Company management, and vesting is not certain. The Company
represents to Consultant that it will include the shares issued, and
shares underlying the option in the next registration statement for
the Common Shares on Form X-0, X-0, or comparable form. All expenses
of registration and qualification incurred in connection with a
registration of the Shares shall be borne by the Company except that
the holder of the Shares shall bear the fees and expenses of own
counsel, if any.
4. INDEPENDENT CONTRACTOR.
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder, and this Agreement is not intended to, nor
does it create, an employer-employee relationship nor shall it be construed as
creating any joint venture or partnership between the Company and Consultant.
Consultant shall be responsible for all applicable federal, state and other
taxes related to Consultant's consulting fee and Company shall not withhold or
pay any such taxes on behalf of Consultant, including without limitation social
security, federal, state and other local income taxes. Since Consultant is
acting solely as an independent contractor under this Agreement, Consultant
shall not be entitled to insurance or other benefits normally provided by
Company to its employees.
5. ASSIGNMENT.
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skill and qualifications of
Consultant. Consultant shall not voluntarily, or by operation of law
assign or otherwise transfer the obligations incurred on his part pursuant to
terms of this Agreement without the prior written consent of the Company. Any
attempt at assignment or transfer by Consultant of his obligations hereunder,
without such consent, shall be null and void.
6. NON-COMPETITION.
Consultant agrees that during the Term he shall not, directly or indirectly
(whether for compensation or otherwise), alone or as an agent, principal,
partner, officer, employee, trustee, director, shareholder, consultant or in
any other capacity own, manage, operate, join, control or participate in
The ownership, management, operation or control of, or furnish any capital to,
or be connected in any manner with, or provide any services as a consultant for
any business which has any activities or products directly competitive with the
activities and products of the Company.
CONSULTING AGREEMENT Page 4 of 7
7. CONFIDENTIALITY
Consultant recognizes that during the course of Consultant's activities
on behalf of the Company, he will accumulate certain proprietary and
confidential information and trade secrets used in the Company's business and
will have divulged to him certain confidential and proprietary information and
trade secrets about the business, operations and prospects of the Company,
which constitute valuable business assets of the Company. Consultant hereby
acknowledges and agrees that such information ("Proprietary Information") is
confidential and proprietary and constitutes trade secrets and that the
Proprietary Information belongs to the Company and not to Consultant.
Consultant agrees, to the extent not prohibited by law, that he shall not, at
any time subsequent to the execution of this Agreement, whether during or after
the Term, disclose, divulge or make known, directly or indirectly, to any
person, or otherwise use or exploit in any manner any Proprietary Information
obtained by Consultant under this Agreement, except in connection with and to
the extent required by his performance of his duties hereunder for the
Company.
Upon termination of this Agreement Consultant shall deliver to Company all
tangible displays and repositories of Proprietary Information.
8. TERMINATION
This Agreement My be terminated on the occurrence of any one of the following
events:
8.1 The expiration of the Term hereof;
8.2 The mutual agreement of the parties;
8.3 At the Company's option, on the last day of the month in which
Consultant dies or becomes permanently incapacitated. 'Permanent
incapacity' as used herein shall mean mental or physical incapacity, or
both, reasonably determined by the Company's Board of Directors based upon
a certification of such incapacity by, in the discretion of the Company's
Board of Directors, either Consultant's regularly attending physician or a
duly licensed physician selected by the company's Board of Directors,
rendering Consultant unable to perform substantially all of his duties
hereunder and which appears reasonably certain to continue for at least
six consecutive months without substantial improvement. Consultant shall
be deemed to have 'become permanently incapacitated' on the date the
Company's Board of Directors has determined That Consultant is permanently
incapacitated and so notifies Consultant;
8.4 By the Company 'with cause," effective upon delivery of written notice to
Consultant given at any time (without any necessity for prior notice) if
any of the following shall occur:
(a) a material breach of This Agreement by Consultant, which breach has
not been cured within thirty (30) days after a written demand for
such performance is delivered to Consultant by the Company that
specifically identifies the manner in which The Company believes
That Consultant has breached this Agreement;
CONSULTING AGREEMENT PAGE 5 OF 7
(b) any material acts or events which inhibit Consultant from fully
performing his responsibilities to the Company in good faith, such
as (i) a felony criminal conviction; (ii) any other criminal
conviction involving Consultant's lack of honesty or Consultant's
moral turpitude; (iii) drug or alcohol abuse; or (iv) acts of
dishonesty, gross carelessness or gross misconduct.
8.5 Upon thirty days written notice from one party to the other.
9. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF COMPANY.
The obligations of the Consultant described in this Agreement consist solely of
the furnishing of information and advice to the Company. In no event shall
Consultant be required by this Agreement to act as the agent of the Company or
otherwise to represent or make decisions for the Company. All final decisions
with respect to acts of the Company or its affiliates, whether or not made
pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of the Company or such affiliates and Consultant shall
under no circumstances be liable for any expenses incurred or loss suffered by
Company as a consequence of such decisions.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed
by and interpreted in accordance with The laws of the State of
California. Each of the Parties hereto consents to such
jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated
hereby.
10.2 ATTORNEYS' FEES. In the event a dispute arises with respect to this
Agreement, the party prevailing in such dispute shall be entitled
to recover all expenses, including, without limitation,
reasonable attorneys' fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in
enforcing such party's rights under this Agreement, whether or
not it was necessary for such party to institute suit.
10.3 COMPLETE AGREEMENT. This Agreement supersedes any and all of Tha other
agreements, either oral or in writing, between the Parties with
respect to the subject matter hereof and contains all of The
covenants and agreements between the Parties with respect to such
subject matter in any manner whatsoever. Each Party to This
Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any
Party, or anyone herein, and that no other agreement, statement
or promise not contained in this Agreement shall be valid or
binding. This Agreement may be changed or amended only by an
amendment in writing signed by all of the Parties or their
respective successors-in-interest.
CONSULTING AGREEMENT PAGE 6 OF 7
10.4 BINDING. This Agreement shall be binding upon and inure to the benefit
of the successors-in-interest, assigns and personal
representatives of the respective Parties, except that this
Agreement may not be assigned by Consultant without the prior
written consent of the Company.
10.2 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, first class mail,
telex or telecopied, addressed as follows:
PARTY:
Company Vitafort International Corporation
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, President
Telecopier No: (000) 000-0000
Consultant Xxxxx Xxxxx
0000 Xxxxxx Xxx, Xxxx 000
Xxx Xxxxxxx, XX 00000
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered;
five (5) business days after deposit in any "United States Post
Office in the continental United States, postage prepaid, if
mailed; when answered back, if telexed; and when receipt is
acknowledged or confirmed, if telecopied.
10.6 UNENFORCEABLE TERMS. Any provision hereofprohibited by law or
unenforceable under the law of any jurisdiction in which
such provision is applicable shall as to such jurisdiction only
be ineffective without affecting any other provision of this
Agreement. To the full extent, however, that such applicable law
way be waived to the end that this Agreement be deemed to be a
valid and binding agreement enforceable in accordance with its
terms, the Parties hereto hereby waive such applicable law
knowingly and understanding the effect of such waiver.
10.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts and when so executed shall constitute one agreement
binding on all the Parties, notwithstanding that all the Parties
are not signatory to the original and same counterpart.
CONSULTING AGREEMENT PAGE 7 OF 7
10.8 FURTHER ASSURANCE. From time to time each Party will execute and
deliver such further instruments and will take such other action as
any other Party may reasonable request in order to discharge and
perform their obligations and agreements hereunder and to give effect
to the intentions expressed in this Agreement.
10.9 INCORPORATION BV REFERENCE. All exhibits referred to 'in this
Agreement are incorporated herein in their entirety by such
reference.
10.10 MISCELLANEOUS PROVISIONS. The various headings and numbers herein
and the grouping of provisions of this Agreement into separate
articles and paragraphs are for the purpose of convenience only
and shall not be considered a party hereof. The language in all
parts of this agreement shall in all cases by construed in
accordance with its fair meaning as if repared by all Parties to
the Agreement and not strictly for or against any of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
"COMPANY" "CONSULTANT"
VITAFORT INTERNATIONAL CORPORATION
A Delaware Corporation
By: /s/ XXXX XXXXXXX /s/ XXXXX XXXXX
------------------------------- -----------------------------------
Xxxx Xxxxxxx, President XXXXX XXXXX
