AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement (this "Agreement")
is entered into as of this 1st day of October, 2000, by and between
XxxxxxXxxx.xxx International, Inc. a Delaware corporation (the "Company") and
Xxxx Xxxxx ("Consultant"), collectively referred to hereinafter as the "Parties"
or individually as a "Party."
WHEREAS, the Company is engaged in the business of creating an
amateur sports Internet portal; and
WHEREAS, the Company seeks to utilize the services of Consultant to
introduce the Company to individuals and organizations involved in the sports
industry, including professional associations, teams, coaches, and athletes, and
to provide business development and advisory services to the Company
(collectively, the "Services") in furtherance of the development and promotion
of such Internet portal; and
WHEREAS, the Company and Consultant entered into a consulting
agreement, dated July 5, 2000 ("Original Consulting Agreement"), and now desire
to amend and restate the Original Consulting Agreement.
NOW, THEREFORE, In consideration of the foregoing premises and the
mutual covenants contained herein, the Parties hereto agree to amend and restate
the Original Consulting Agreement in its entirety as follows:
1. Services. During the term of this Agreement, Consultant agrees to provide the
Services as requested by the Company on a continuous basis and in accordance
with accepted industry practices and guidelines and all applicable federal,
state and local laws, rules and regulations. Consultant also agrees to provide
the Services pursuant to the guidelines and requirements promulgated by the
Company from time to time and provided to Consultant by the Company.
2. Term. This Agreement will become effective on the date stated
above, and will continue in effect until July 4, 2001 unless
terminated by either Party as provided herein.
3. Obligations of Consultant.
3.1 Licenses and Education. Consultant shall be responsible for
obtaining and maintaining Consultant's professional licenses, and/or
certifications, if any, and obtaining any continuing education or certification
that is required or is prudent to remain current and knowledgeable in
Consultant's field.
3.2 Taxes. Consultant shall be responsible for paying
federal, state and local income, Social Security, unemployment, and
all other taxes upon amounts earned by or paid to Consultant pursuant to this
Agreement.
3.3 Expenses. Except as agreed by the Company in writing,
Consultant shall be responsible for providing Consultant's own transportation,
lodging, meals, insurance, and any and all other employment-related expenses.
4. Compensation. Unless otherwise set forth in writing and signed
by both Parties, the Company shall pay, and Consultant hereby accepts
as full compensation for Services rendered hereunder, the following
amounts:
4.1 Shares of Common Stock. The Company hereby grants to
Consultant One Hundred Fifty Thousand (150,000) shares of the
Company's Common Stock.
4.2 Hourly Rate. Consultant's time charges for Services will be
billed at the rate of the lesser of: (i) One Hundred Dollars ($100.00) per hour;
or (ii) Eight Hundred Dollars ($800.00) per day. Any unpaid charges after
application of the retainer shall be paid within twenty (20) days of receipt of
an itemized monthly billing from Contractor. Any unused retainer shall be
carried forward to and applied against the succeeding month's xxxxxxxx.
Contractor agrees that the Company shall not be billed for any time charges
attributable to travel to and from either the Company's offices, or any other
travel required on behalf of the Company.
5. Registration. As soon as practicable, the Company agrees to
file a Registration Statement with the Securities and Exchange
Commission on Form S-8 with respect to the shares of Common Stock
issued to Consultant pursuant to this Agreement.
6. Covenant Not to Compete
6.1 Covenant. Consultant hereby agrees that during the term of this
Agreement and during the one (1) year period following the termination of this
Agreement, Consultant will not directly or indirectly compete (as defined in
Section 6.2 below) with the Company in any geographic area in which the Company
does or has done business, and will not (i) induce or attempt to induce any
employee of the Company to leave the employ of the Company or in any was
interfere with the relationship between the Company and any employee thereof,
(ii) hire directly or through another entity any person who was an employee of
the Company at any time during the six month period preceding the termination of
this Agreement, (iii) induce or attempt to induce any customer, supplier,
licensee, or other business relation of the Company to cease doing business with
the Company or in any way interfere with the relationship between any such
customer, supplier, licensee, or business relation and the Company, or (v)
authorize or
assist in the taking of any of the foregoing actions by any third
party.
6.2 Direct and Indirect Competition. As used herein, the phrase
"directly or indirectly compete" shall include owning, managing, operating or
controlling, or participating in the ownership, management, operation or control
of, or being connected with or having any interest in, as a stockholder,
director, officer, employee, Consultant, agent, consultant, assistant,
instructor, advisor, sole proprietor, partner or otherwise, any business (other
than the Company's) which is the same as or competitive with any business
conducted or to be conducted by the Company; provided, however, that this
prohibition shall not apply to ownership of less than one percent (1%) of the
voting stock in companies whose stock is traded on a national securities
exchange or in the over-the-counter market.
6.3 Enforceability. If any of the provisions of this Section 6 is
held unenforceable, the remaining provisions shall nevertheless remain
enforceable, and the court making such determination shall modify, among other
things, the scope, duration, or geographic area of this Section to preserve the
enforceability hereof to the maximum extent then permitted by law. In addition,
the enforceability of this Section is also subject to the injunctive and other
equitable powers of a court as described in Section 10 below.
7. Confidential Information. Consultant acknowledges that during the term of
this Agreement, Consultant will develop, discover, have access to, and become
acquainted with technical, financial, marketing, personnel, and other
information relating to the present or contemplated products or the conduct of
business of the Company which is of a confidential and proprietary nature
("Confidential Information"). Consultant agrees that all files, records,
documents, and the like relating to such Confidential Information, whether
prepared by him or otherwise coming into Consultant's possession, shall remain
the exclusive property of the Company, and Consultant hereby agrees to promptly
disclose such Confidential Information to the Company upon request and hereby
assigns to the Company any rights which Consultant may acquire in any
Confidential Information. Consultant further agrees not to disclose or use any
Confidential Information and to use Consultant's best efforts to prevent the
disclosure or use of any Confidential Information either during the term of this
Agreement or at any time thereafter, except as may be necessary in the ordinary
course of performing Consultant's duties under this Agreement. Upon termination
of this Agreement for any reason, Consultant shall promptly deliver to the
Company all materials, documents, data, equipment, and other physical property
of any nature containing or pertaining to any Confidential Information, and
Consultant shall not take from the Company's premises, without its prior written
consent, any such material or equipment or any reproduction thereof.
8. No Conflicts. Consultant hereby represents that, to the best of Consultant's
knowledge, Consultant's performance of all the terms of this Agreement and work
as an independent Consultant for the Company does not breach any oral or written
agreement which Consultant has made prior to the effective date of this
Agreement.
9. Equitable Remedies. Consultant acknowledges that Consultant's obligations
hereunder are special, unique, and extraordinary, and that a breach by
Consultant of certain provisions of this Agreement, including without limitation
Sections 6 and 7 above, would cause irreparable harm to the Company for which
damages at law would be an inadequate remedy. Accordingly, Consultant hereby
agrees that in any such instance the Company shall be entitled to seek
injunctive or other equitable relief in addition to any other remedy to which it
may be entitled. All of the rights of the Company from whatever source derived,
shall be cumulative and not alternative.
10. Assignment. This Agreement is for the unique personal services of Consultant
and is not assignable or delegable in whole or in part by Consultant without the
consent of an authorized representative of the Company. This Agreement may be
assigned or delegated in whole or in part by the Company and, in such case, the
terms of this Agreement shall inure to the benefit of, be assumed by, and be
binding upon the entity to which this Agreement is assigned.
11. Waiver or Modification. Any waiver, modification, or amendment
of any provision of this Agreement shall be effective only if in
writing in a document that specifically refers to this Agreement and
such document is signed by the Parties hereto.
12. Independent Contractor. The Parties agree that Consultant is an independent
Contractor with respect to the Company and that no employment relationship
exists between the Parties hereto. Consultant shall use his own professional
discretion in performing the services called for hereunder. As an independent
Contractor, Consultant shall have no power to act for, bind, or otherwise create
or assume any obligation on behalf of the Company, for any purpose whatsoever.
13. Entire Agreement. This Agreement constitutes the full and
complete understanding and agreement of the Parties hereto with
respect to the subject matter covered herein and supersedes all prior
oral or written understandings and agreements with respect thereto.
14. Severability. If any provision of this Agreement is found to
be unenforceable by a court of competent jurisdiction, the remaining
provisions shall nevertheless remain in full force and effect.
15. Notices. Any notice required hereunder to be given by either
Party shall be in writing and shall be delivered personally or sent by
certified or registered mail, postage prepaid, or by private courier,
with written verification of delivery, or by facsimile transmission to
the other Party to the address or telephone number set forth below or to such
other address or telephone number as either Party may designate from time to
time according to this provision. A notice delivered personally shall be
effective upon receipt. A notice sent by facsimile transmission shall be
effective twenty-four hours after the dispatch thereof. A notice delivered by
mail or by private courier shall be effective on the third day after the day of
mailing.
(a) To Consultant at: ========================
(b) To the Company at: 10421 South 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
16. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah without
regard to the conflict of laws. The Parties further agree that proper
venue and jurisdiction for any dispute under this agreement shall be
the courts in the State of Utah.
IN WITNESS WHEREOF, Consultant has signed this Agreement personally
and the Company has caused this Agreement to be executed by its duly authorized
representative.
XXXXXXXXXX.XXX INTERNATIONAL, INC. CONSULTANT
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx Xxxxx
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Xxxxxxx X. Xxxxx Xxxx Xxxxx
President
