Exhibit 10.20
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of April 24, 2003 by and between Inyx,
Inc. a Nevada corporation with its principal place of business at 000 Xxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx (the "Corporation") and Xxxxxxx X. X.
Xxxxxxx/dba/The Xxxxxxx Group of West Xxxxxxx CT ("Consultant Company").
R E C I T A L S:
WHEREAS, the Corporation is a publicly traded company; and
WHEREAS, the Consultant Company is a firm providing investor, public, trade
and media relations services and marketing programs to public companies; and
WHEREAS, the Corporation and the Consultant Company have agreed to enter
into a consulting agreement for their mutual benefit pursuant to the terms and
conditions set forth hereinbelow ("Agreement").
NOW, THEREFORE, in consideration of the mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
1. Description of Services
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(1) The Consultant Company represents and warrants to the Corporation that
the Consultant Company has the required skills and experience to
perform the duties and exercise the responsibilities required of the
Consultant Company as an investor, public, trade and media relations
consultant. In carrying out these duties and responsibilities, the
Consultant shall comply with all lawful and reasonable instructions as
may from time to time be given by superiors representing the
Corporation.
(2) The Consultant Company agrees to act in an advisory and consultative
and action capacity for the Company in respect to all of the items set
forth in (a) through (n) below, and more specifically agrees: (i) to
develop and prepare (and/or to supervise the development and
preparation of) the items set forth in (a), (b), (c), (d), (e), and
(g) below; and (ii) to perform the activities set forth in items (f),
(h), (i), (j), (k), (l), (m), (n) and (o) below:
(a) The Corporation's Corporate Mission Statement;
(b) The Corporation's 32-page "Corporate Bible";
(c) The Corporation's website (including conceptualizing, designing
and programming);
(d) The Corporation's corporate materials including, but not limited
to, a pocket folder and various color inserts;
(e) The Corporation's quarterly newsletter;
(f) Establishment of a relationship with ADP shareholder services and
coordination with shareholder communication efforts via ADP;
(g) The Corporation's corporate advertising materials for National
Investor Awareness Initiatives including, but not limited to, a
16 page advertising newsletter feature, email campaign
components, inserts and space-ads;
(h) Assisting in providing guidance in the preparation, writing and
dissemination of press releases, reports, annual reports or other
informational material to be sent from time to time to
shareholders and/or prospectively interested parties;
(i) Development and management of an ongoing nationwide public
relations campaign for the consumer/trade/media.
(j) Ensuring complete and regular review of the Corporation Investor
Relations Program for the purpose of maintaining its timely
relevance to the Corporation's requirements;
(k) Providing the Corporation with a monthly summary of activities.
(l) Assisting the Corporation in posting the Corporation corporate
information on a website specifically developed for the
Corporation;
(m) To advise the Corporation with regard to the manner of
dissemination of creative materials.
(3) It is understood and agreed that the decision whether to make or
disseminate forecasts and/or financial projections and if so, the
preparation of such forecasts and/or financial projections rests
solely with the Corporation. The Consultant Company shall obtain the
Corporation's written approval for content before distributing or
otherwise disseminating any and all information and material of
whatever nature or kind relating to the Corporation to any person or
group whatsoever.
(4) The Consultant Company agrees to comply with and be bound by the terms
and conditions of this Agreement and cause its agents, employees and
contractors to be similarly bound.
(5) In consideration of the Consultant Company's agreement hereto and the
Consultant Company's performance in accordance herewith, the
Corporation retains the Consultant Company as Investor, Public, Trade
and Media Relations Consultant for a term of 12 months commencing upon
the resolution of the conditions set forth in Section 17. of this
Agreement (the "Term of this Agreement"), subject to earlier
termination as provided in Section 7.(a) or (b).
(6) The Consultant Company acknowledges and agrees that the effective
performance of the Consultant Company's duties requires the highest
level of integrity and the Corporation's complete confidence in the
Consultant Company's employees. The Consultant Company acknowledges
that the officers responsible for implementing the Corporation's
investor relations program and with whom the Consultant Company's
employees will deal with in regards to such program are to be
designated by the Corporation.
(7) It is understood and agreed to by the Consultant Company that the
Corporation reserves the right to modify the Consultant Company's
assignments, duties and reporting relationships within the parameters
of its responsibilities as an Investor, Public, Trade and Media
Relations Consultant.
2. Service
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During the Term of this Agreement the Consultant Company shall well and
faithfully serve the Corporation. The Corporation acknowledges that the
Consultant Company is engaged in the business of investor marketing and
ancillary functions on behalf of other companies, whether public or private.
3. Confidential Information
------------------------
(1) The Consultant Company acknowledges that as Investor, Public, Trade
and Media Relations Consultant, and in such other position as it may
from time to time be appointed to, or may be deemed by law, the
Consultant Company will acquire information about certain matters and
things which are confidential to the Corporation, (the "Information")
and which Information is the exclusive property of the Corporation
including, but not limited to:
(a) Lists of present and prospective customers, and related
information;
(b) Pricing and sales policies, techniques and concepts;
(c) List of suppliers and customers;
(d) Trade secrets;
(e) Financial information not provided to the public;
(f) All non-public information; and
(g) All information regarding the proprietary aspects of the
Corporation's technology and/or products.
(2) The Consultant Company acknowledges such Information as referred to in
Section 3(1) above could be used to the detriment of the Corporation.
Accordingly, the Consultant Company undertakes to treat confidentially
all such Information, except if same is already or becomes information
generally known to the public, and agrees not to disclose same to any
third party either during or after the Term of this Agreement, except
as may be necessary in the proper discharge of its services, however
caused, except with the written permission of an officer of the
Corporation.
(3) The Consultant Company acknowledges that, without prejudice to any and
all rights of the Corporation, an injunction is the only effective
remedy to protect the Corporation's rights and property as set out in
Sections 3.(1) and 3.(2) hereinabove.
4. Representations and Warranties
------------------------------
The Consultant Company represents and warrants to the Corporation that:
(a) It will exercise reasonable care to assure that all materials and
documents descriptive of or relating to the Corporation which are
prepared by the Consulting Company or its subcontractors (the
"Creative Materials") be accurate, not misleading and balanced in
presentation;
(b) It will exercise reasonable care to assure that all Creative Materials
submitted to the Corporation for approval are: (i) compliant with the
requirements of federal securities laws for such material; (ii) in the
long term best interests of the Corporation and its shareholders; and
(iii) consistent with good practices for shareholder relations for a
development stage public company;
(c) The entities engaged to perform website and PR services hereunder will
be supervised by the Consultant Company and that the Expenses/Program
Costs referenced in Section 6. and listed in Exhibit C represent
maximum anticipated costs for such services; and
(d) To provide the Corporation its best advice regarding the manner of
preparation and designing of Creative Materials to enhance long-term
shareholder liquidity and value without spikes.
5. Non-Competition
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The Consultant Company agrees that, during the Term of this Agreement and
for a period of twenty-four (24) months following termination of this Agreement,
however caused, it will not hire or take away or cause to be hired or taken away
any employee of the Corporation or, following termination of this Agreement, any
employee who was in the employ of the Corporation during the six (6) months
preceding termination.
6. Remuneration and Benefits
-------------------------
In consideration of the Consultant Company's undertaking and the
performance of the obligations contained herein, the Corporation shall pay cash
compensation as outlined in Exhibit A hereto. In addition, the Corporation shall
provide for expenses and costs associated with the Consultant Company's
activities, payments to sub-contractors and production of materials upon the
Corporation's prior approval of such expenses.
7. Termination
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The parties understand and agree that this Agreement may be terminated in
the following manner in the specified circumstances:
(a) By the Consultant Company for any reason, on the giving of not less
than thirty (30) days notice to the Corporation. Consultant Company
acknowledges and agrees that Consultant Company shall not be entitled
to any additional monthly cash compensation following the expiration
of the 30-day notice period;
(b) By the Corporation for any reason, on the giving of not less than
thirty (30) days notice to the Consultant Company. Consultant Company
acknowledges and agrees that Consultant Company shall not be entitled
to any additional monthly cash compensation following the expiration
of the 30-day notice period.
(c) By the Corporation, at its option, without notice, for cause
including:
i. Any material breach of the provisions of this Agreement;
ii. Conviction of the Consultant Company of a criminal offense;
iii. Any mental or physical disability or illness which results in the
Consultant Company being unable to substantially perform his
duties in accordance with this Agreement for a period of thirty
(30) days in any one hundred and twenty (120) day period. Failure
by the Corporation to rely on this provision in any given
instance or instances, shall not constitute a precedent or be
deemed a waiver; or
(d) By the Consultant Company for cause, including any material breach of
this Agreement by the Corporation.
(e) In the event of termination by either party, Consultant Company shall
exercise its best efforts to provide Corporation with a smooth
transition in all functions covered by this agreement and to deliver
to Corporation all information and investor inquiries received by it
subsequent to termination.
8. The Corporation's Property
--------------------------
The Consultant Company acknowledges that all items of any and every nature
or kind created or used by the Consultant Company or its subcontractors
including, but not limited to, website codes and development, PR materials and
pending contacts or proposals, and fulfillment, pursuant to the Consultant
Company's services under this Agreement, or furnished by the Corporation to the
Consultant Company, and including, without limitation all equipment,
automobiles, credit cards, books, records, reports, files, manuals, literature,
all items developed or referred to in Section 1.(2)(3) herein, confidential
information or other materials shall remain and be considered the exclusive
property of the Corporation at all times and shall be surrendered to the
Corporation, in good condition, promptly on the termination of the Consultant
Company's services irrespective of the time, manner or cause of the termination.
9. Assignment of Rights
--------------------
The rights, which accrue to the Corporation under this Agreement, shall
pass to its successors or assigns. The rights of the Consultant Company under
this Agreement are not assignable or transferable in any manner unless assigned
to a company controlled by the same individuals as the Consultant Company.
10. Notices
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(1) Any notice required or permitted to be given to the Consultant Company
shall be sufficiently given if delivered to the Consultant Company or
if mailed by registered mail to the Consultant Company or if mailed by
registered mail to the Consultant Company's address last known to the
Corporation.
(2) Any notice required or permitted to be given to the Corporation shall
be sufficiently given if mailed by registered mail to the
Corporation's Head Office at its address last known to the Consultant
Company.
11. Severability
------------
In the event that a court of competent jurisdiction shall deem any
provision or part of this Agreement void or invalid, the remaining provisions or
parts shall be and remain in full force and effect.
12. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between the parties hereto
with respect to the engagement of the Consultant Company and any and all
previous agreements, written or oral, express or implied between the parties
hereto ("Prior Agreements") are hereby null and void, and the parties hereto
hereby release and forever discharge the other of and from all manner of
actions, causes of action, claims and demands whatsoever, under or in respect of
any such Prior Agreements.
13. Modification of Agreement
-------------------------
Any modification of this Agreement must be in writing and signed by the
parties or it shall have no effect and shall be void.
14. Headings
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The headings used in this Agreement are for convenience only and are not to
be construed in any way as additions to or limitations of the covenants
and agreements contained in it.
15. Governing Law
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This Agreement shall be construed in accordance with the laws of the State
of Florida.
16. Counterpart
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This Agreement can be signed in counterpart.
17. Corporation's Board of Director Approval
----------------------------------------
This Agreement is subject to approval by the Corporation's Board of
Directors of: (a) this Agreement; and (b) funding.
18. Costs
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In the event of a dispute arising under the terms and conditions of this
consulting agreement, the prevailing party in any such dispute shall be entitled
to reasonable legal fees and cost of collection.
IN WITNESS WHEREOF, this Agreement has been executed by the parties to it,
as of the day, month and year first written above.
Inyx, Inc. Xxxxxxx X. X. Xxxxxxx d/b/a
The Xxxxxxx Group
Per: /s/ Xxxx Xxxxxxx Per: Xxxxxxx X. X. Xxxxxxx
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Authorized Signatory Authorized Signatory
EXHIBIT A
Cash Compensation:
Cash Compensation pursuant to Section 6. of this Agreement
o Monthly fee of $10,000.
o First two months fee deliverable upon resolution of the conditions set
forth in Section 17. then, a payment of $10,000 every thirty (30) days
thereafter over a period of ten (10) consecutive months (subject to
the 30 day written notice of cancellation pursuant to Section 7.(a) or
(b).
o The monthly fee for the first four months has been paid.
EXHIBIT B
Equity Compensation Terms
The equity compensation package to consist of 5 components:
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1) Issuance to Consultant Company of 25,000 shares of Common Stock.
2) Issuance to Consultant Company of a warrant to purchase 50,000 shares
of Common Stock at a strike/exercise price of $1.10 for a period of 5
years from the date of this agreement.
3) Issuance to Consultant Company of a warrant to purchase 50,000 shares
of Common Stock at a strike/exercise price of $1.60 for a period of
5-years from the date of this agreement.
4) Issuance to Consultant Company of a warrant to purchase 50,000 shares
of Common Stock at a strike/exercise price of $2.10 for a period of
5-years from the date of this agreement.
5) Issuance to Consultant Company of a warrant to purchase 50,000 shares
of Common Stock at a strike/exercise price of $2.60 for a period of
5-years from the date of this agreement.
Warrant governed under the terms and conditions outlined below. Consultant
Company may exercise the warrant in whole or in part and may pay the
exercise price (a) in cash or (b) by cashless exercise, as follows:
Consultant Company shall notify warrant issuer together with a notice of
cashless exercise, in which event the warrant issuer shall issue to the
warrant holder the number of warrant shares to be determined as follows:
X = Y (A-B)/A
Where:
X = the number of warrant shares to be issued to the warrant
holder.
Y = the number of warrant shares with respect to which this
warrant is being exercised.
A = the average of the closing prices of the Common Stock
for the five (5) Trading Days immediately prior to (but not
including) the Date of Exercise.
B = the Exercise Price.
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EXHIBIT C
Expenses/Program Costs Pursuant to Section 6. of this Agreement
The following table provides an estimation of various costs and expenses
associated with the Consultant Company's duties and provisions of services as
described in this Agreement and agreed to by both parties.
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INVISA 1-4 months(1) 5-8 months 9-12 months
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Website pursuant to 1.(2)(c) TBD* XXX XXX
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Newsletter pursuant to 1.(2)(e) XXX XXX TBD
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PR pursuant to 1.(2)(i) XXX XXX TBD
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Self-mailer Design XXX XXX TBD
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Misc. Design XXX XXX TBD
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Writing** XXX XXX TBD
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Misc. Expenses XXX XXX TBD
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TOTAL XXX XXX TBD
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* TO BE DETERMINED
** Writing includes ingredients for Corporation's main story, investor folder,
brochures, press releases, web site, research (i.e.- the items in 1.(2) of this
Agreement.
