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EXHIBIT 10.(c)
CONSULTING AGREEMENT
This Agreement is made effective as of January 1, 1998 by and between POP N GO,
INC., of 00000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and Xxxxxxxxx
Investments, LP.
In this Agreement, the party who is contracting to receive services shall be
referred to as "PNG", and the party who will be providing the services shall be
referred to as "Consultant".
Consultant has an extensive background in the creation of start-up companies
and in the development of marketing strategies for the introduction of new
products into the marketplace and is willing to provide services to PNG based
on this background.
PNG desires to have services provided by Consultant.
Therefore, the parties agree as follows:
1. DESCRIPTION OF SERVICES. Beginning on January 1, 1998, Consultant will
provide the following services (collectively, the "Services"):
A. Serve as President and a member of the Board of Directors of PNG.
B. Oversee the raising of capital for PNG pursuant to PNG's Convertible
Debenture Offerings.
C. Oversee PNG's Sales Director in the development of PNG's strategic sales
plan.
D. Consult with PNG's CEO on the overall strategic direction of PNG.
E. Consult on key personnel and administrative decisions.
2. PERFORMANCE OF SERVICES. The manner in which the Services are to be
performed and the specific hours to be worked by Consultant shall be determined
by Consultant. PNG will rely on Consultant to work as many hours as may be
reasonably necessary to fulfill Consultant's obligations under this Agreement.
3. PAYMENT. PNG will pay a fee to Consultant for the Services based on $96,000
per year during the first year, $120,000 per year during the second year and
$150,000 per year during the third year of this Agreement. This fee shall be
payable monthly, no later than 5 days after the end of each applicable month
during which Services were performed.
4. BONUS PAYMENTS. In addition to the payments under the preceding paragraph,
PNG will make bonus payments to Consultant based on 1.00% of PNG gross sales.
a. Payment Schedule. The bonus payments shall be payable, no later than
the tenth day of the month following the end of PNG's fiscal year.
b. Accounting. PNG shall maintain records in sufficient detail for
purposes of determining the amount of the bonus. PNG shall provide to
Consultant a written accounting that sets forth the manner in which the bonus
payment was calculated.
c. Stock Bonus. A stock bonus of 15 shares of PNG common stock will be
paid to Consultant for each quarter that Consultant serves as a consultant
during the term of this Agreement. Each 15
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share bonus will be considered earned as of the last day of each quarterly
period.
5. TERM/TERMINATION. This Agreement shall terminate automatically on December
31, 2000. PNG and Consultant may agree to terminate this Agreement at any time
only by mutual consent of the parties and by payment to Consultant of 6 months
of consulting fees. Any accrued cash and stock bonus will be payable upon
termination.
7. RELATIONSHIP OF PARTIES. It is understood by the parties that Consultant is
an independent contractor with respect to PNG, and not an employee of PNG.
8. DISCLOSURE. Consultant is required to disclose any outside activities or
interests, including ownership or participation in the development of prior
inventions, that conflict or may conflict with the best interests of PNG.
Prompt disclosure is required under this paragraph if the activity or interest
is related, directly or indirectly, to:
- a product or product line of PNG
- a manufacturing process of PNG
- any activity that Consultant may be involved with on behalf of PNG
9. ASSIGNMENT. Consultant's obligations under this Agreement may not be
assigned or transferred to any other person, firm, or corporation without the
prior written consent of PNG.
10. NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed delivered when delivered in person or deposited in
the United States mail, postage prepaid, addressed as follows:
IF for PNG:
POP N GO, INC.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
IF for Consultant:
/s/ XXXXXX XXXXXX, GP
Xxxxxxxxx Investments, LP
0000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
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Such address may be changed from time to time by either party by providing
written notice to the other in the manner set forth above.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
12. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
13. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid and enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
14. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by the laws of the State
of California.
Party receiving services:
POP N GO, INC.
By: /s/ XXX XXXXX
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Party providing services:
XXXXXXXXX INVESTMENTS, LP
By: /s/ XXXXXX XXXXXX, GP
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