EXHIBIT 10.23
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") entered into as of February 8,
2000 between Famous Fixins, Inc. with the principal offices located at 000
Xxxx 00xx Xxxxxx Xxxxx 0000, Xxx Xxxx, XX 00000 (the "Company") and XXXXXXX
XXXXXX with address at 0000 Xxxxx Xxxxx Xxxx., Xxxxxxxx Xxxxx, XX 00000 (the
"Consultant").
WHEREAS, the Board of Directors of the Company has adopted a written
compensation agreement for compensation of Consultant who is a natural
person; and
WHEREAS, the Company has engaged Consultant to provide services at the
request of and subject to the satisfaction of the Company's management; and
WHEREAS, a general description of the nature of the services performed
by Consultant and the maximum value of such services under this Agreement are
set forth below; and
WHEREAS, the Company and Consultant intend that this Agreement and the
services performed hereunder shall be made, requested and performed in such a
manner that this Agreement shall be a "written compensation agreement" as
defined in Rule 405 of the Securities and Exchange Commission ("SEC")
pursuant to which the Company may issue "freely tradeable" shares of its
common stock as payment for services rendered pursuant to an S-8 Registration
Statement to be filed with the SEC by the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, it is agreed:
1. The Company agrees to and does hereby engage Consultant for a one
year period which commenced as of February 8, 2000 and ends on February 7,
2001. The Company hereby employs Consultant and Consultant hereby accepts
such employment, and will perform the services requested by management of the
Company to its satisfaction during the term hereof. All such services are to
be performed only upon direct authorization from the Company. The services
performed by Consultant hereunder will be personally rendered by Consultant,
and no one acting for or on behalf of the Consultant, except those persons
normally employed by the Consultant in rendering services to others, such as
secretaries, bookkeepers and the like.
2. During the Term of this Agreement:
(a) Consultant shall provide to the Company consulting services
designed to assist the Company in marketing and product development activities
as related to the Company's food products and services, including the
preparation of business plans and reports on product market research. Such
services may include other tasks requested by the Company's management;
however, such services requested by the Company and to be provided by
Consultant:
- shall not be investor relations services;
- shall not be shareholder communications services;
- shall not be of a promotional nature that would directly or
indirectly promote or maintain a market for the Company's securities;
- shall not be in connection with or related to the offer or sale of
the Company's securities in a capital-raising transaction.
(b) The services of Consultant are non-exclusive and subject to
Section 4 hereof, Consultant may render services of the same or similar
nature, as herein described, to an entity whose business is in competition
with the Company or the Company's clients, directly or indirectly.
3. The Company shall pay to Consultant for its services hereunder as
follows: $250 per hour for services invoiced and $100 per hour for services
invoiced by any assistants of the Consultant. The payment shall be made in
the form of the Company's securities through a combination of shares of common
stock and options to purchase an equal number of shares of common stock. The
maximum compensation payable by the Company to Consultant under this Agreement
shall be a total of 250,000 shares of the Company's common stock and options
to purchase 250,000 shares of the Company's common stock. In no event can
more than 50% of the total number of securities vest prior to March 6, 2000.
The number of shares and options to be issued shall be computed in relation to
the closing bid price of the Company's common stock on the date invoice for
services is received by the Company; provided, however, such shares of common
stock shall be issued pursuant to and shall be subject to the filing and
effectiveness of a Registration Statement on Form S-8 covering such shares
with the SEC. The options to purchase the first 125,000 shares of common
stock are exercisable at $.1875 per share (the bid price on February 8, 2000).
The options to purchase the other 125,000 shares of common stock shall be
exercisable at $.25 per share. The options are exercisable for a period of
three years from the date of this Agreement. The options shall not be given,
granted sold, exchanged, transferred, pledged, encumbered, assigned or
otherwise disposed of by Consultant, other than by will or the laws of descent
and distribution, and during the lifetime of Consultant, shall be exercisable
only by Consultant. In the event the Company shall undergo a merger,
consolidation, reorganization, recapitalization, declare a stock dividend of
its shares of common stock or cause to be implemented a forward or reverse
stock split which affects the present number of issued and outstanding shares
of common stock, the securities issued under this Agreement shall be
appropriately adjusted to reflect any such event.
The Company agrees to use its best efforts to file a registration
statement for the aforementioned securities on Form S-8 in a timely manner
within 15 days after the Company submits its annual report on Form 10K-SB for
the year ended December 31, 1999. The Company shall engage the services of a
competent professional to prepare and file a Registration Statement on Form
S-8 with the Commission to cover the shares of common stock to be issued
under the Agreement. Consultant shall cooperate with such professional in
every manner whatsoever to the extent reasonably required or necessary so
that such Registration Statement shall be competently prepared, and so that
such Registration Statement will not contain any untrue statement of a
material fact or omit to state a material fact regarding Consultant necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. Such Registration Statement
shall be prepared at the sole cost and expense of the Company. The Company
shall cause its transfer agent to deliver certificates for the shares due to
Consultant promptly after the effectiveness of the Registration Statement.
Consultant understands, acknowledges and agrees to comply with the Securities
Act in all respects in connection with the issuance and resale of such shares
of common stock.
Regardless of the Consultant's status as an "employee" under Rule
405 of the Commission, all services rendered by Consultant hereunder shall be
rendered as an independent contractor, and Consultant shall be liable for any
FICA taxes, withholding or other similar taxes or charges, and Consultant
shall indemnify and hold the Company harmless therefrom; it is understood and
agreed that the value of all such items has been taken into account by
Consultant in computing the billable rate for the services Consultant agreed
to render to the Company.
4. Consultant will not disclose to any other person, firm, or
corporation, nor use for its own benefit, during or after the term of this
Agreement, any trade secrets or other information designated as confidential
by the Company which are acquired by Consultant in the course of performing
services hereunder. A trade secret is information not generally known to the
trade which gives the Company an advantage over its competitors. Trade
secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning contract negotiations or the
filing or pendency of patent applications.
5. Consultant represents and warrants to the Company as follows:
(a) Consultant hereby accepts employment by the Company for the
services performed pursuant to this Agreement. The services performed by
Consultant hereunder will be personally rendered by Consultant, and no one
acting for or on behalf of Consultant.
(b) Consultant represents and warrants that, by reason of income,
net assets, education, background and business acumen, Consultant has the
experience and knowledge in business and financial matters to evaluate the
risks and merits attendant to an investment in the securities of the Company,
either singly or through the aid and assistance of a competent professional,
and is fully capable of bearing the economic risk of loss of the total
investment of services.
(c) None of the services rendered by Consultant and paid for by
the issuance of securities of the Company shall be services related to any
"capital raising" transaction or other prohibited service as described above.
6. (a) The Company and Consultant agree to indemnify and hold the
other harmless for any loss or damage resulting from any misstatement of a
material fact or omission to state a material fact by the other contained
herein or contained in the S-8 Registration Statement of the Company to be
filed hereunder, to the extent that any misstatement or omission contained in
the Registration Statement was based upon information supplied by the other.
(b) The Company agrees to indemnify and hold Consultant harmless
from and against all losses, claims, damages, liabilities, costs or expenses
including reasonable attorney's and accountant's fees arising out of the
performance of this Agreement, whether or not Consultant is a party to such
dispute. This indemnity shall not apply, however, where a court of competent
jurisdiction has made a final determination that Consultant engaged in
misconduct in the performance of its services hereunder which gave rise to the
loss, claim, damage, liability, cost or exposure sought to be recovered
hereunder.
(c) The provision of this Section 6 shall survive the termination
and expiration of this Agreement.
7. This Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and supersedes and cancels any prior
communications, understandings, and agreements between the parties. This
Agreement cannot be modified or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties.
8. This Agreement shall be governed by the laws of the State of New
York. Any dispute arising out of this Agreement shall be adjudicated in the
courts of the State of New York or in the federal court for the Southern
District of the State of New York, and the parties hereby agree that service
of process upon them by certified mail at the addresses shown in this
Agreement shall be deemed adequate and lawful.
9. Prior to the performance of services hereunder, this Agreement
may be terminated by mutual consent of the parties. The Agreement shall
automatically terminate at the expiration of the term hereof or upon 30 days
written notice by either party; provided, however, all representations and
warranties shall survive the termination hereof; provided, further, however,
that any obligation of the Company to pay for any services actually rendered
by the Consultants hereunder shall survive any such termination.
10. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
February 8, 2000.
CONSULTANT:
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
THE COMPANY:
FAMOUS FIXINS, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
