Exhibit 10.20
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of
August 1, 2003, between HEALTH SCIENCES GROUP, INC., a Colorado Corporation (the
"Company"), and XXXXXX XXXXXX, an individual ("Consultant"), with reference to
the following facts:
A. The Company is engaged in the neutraceutical
business.
B. Consultant has substantive experience, relationships
and contacts in the neutraceutical industry;
C. The Company desires to retain Consultant in a
consulting capacity commencing on the date hereof,
and Consultant desires to perform such services, all
upon the terms, covenants and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the
mutual covenants and conditions contained herein, the parties agree as follows:
1. CONSULTING SERVICES.
1.1 SERVICES. The consulting services to be performed by
Consultant for and on behalf of the Company hereunder shall consist of advising
and counseling the Company with respect to acquisitions in the neutraceutical
industry, marketing product, branding, pricing, product line extensions, growth
and business plans, strategic planning and any other area that is mutually
agreed upon by Consultant and the Company. Company will have the right to invite
Consultant to join its Board of Directors and become Chairman of the Board. In
the interim, Consultant shall serve as an ex-officio non-voting member of the
Board of Directors. Consultant shall also serve on the Board's Acquisition
Committee, Executive Committee and Compensation Committee. Company shall seek to
obtain D&O insurance satisfactory to Consultant. Consultant will not be deemed
in conflict with this Agreement by acting as a Consultant, Advisor, Board Member
or investor in other neutraceutical companies, including any such companies that
may enter into business relationships, strategic transactions, joint ventures or
other transactions with the Company.
1
1.2 TIME AND EFFORT.
(a) Consultant shall devote such time and effort to perform
the consulting services provided for herein as shall be agreed upon by
Consultant and the Company from time to time. Subject to the foregoing,
Consultant's daily schedule and hours worked under this Agreement on a
given day shall generally be subject to Consultant's discretion.
Consultant shall render services at the Company's offices or such other
places as he deems appropriate for the performance his engagement
hereunder.
1.3 TERM. The term of this Agreement shall commence on the date hereof
and shall continue for three years or until terminated by either party for any
or no reason upon 30 day written notice to other.
2. COMPENSATION. On the date hereof, Consultant shall be granted a warrant
("Warrant") for 2,000,000 shares of the Company's Common Stock upon the terms
set forth in the Warrant Certificate attached hereto as Exhibit "A." The Company
agrees to register the shares underlying the Warrant by filing a registration
statement with respect to such shares with the Securities and Exchange
Commission, on form SB-2 within 90 days (or as soon as practicable consistent
with prior black-out commitments made by the Company in any pre-existing
registration rights agreement) and to seek effectiveness of the registration
statement as soon as practicable.
3. BUSINESS EXPENSES. Consultant shall be reimbursed for all reasonable
and necessary expenses incurred by Consultant in the performance of duties
hereunder; provided, that all individual expenditures over $500 shall be
reimbursed only if the expenditure was pre-approved by the Company's CEO.
4. CONFIDENTIALITY. Consultant shall regard and preserve as
confidential all trade secrets and other confidential information pertaining to
the Company's business that has been or may be obtained by Consultant by reason
of his engagement. Consultant shall not, without written authority from the
Company, use for his own benefit or purposes, or disclose to others, either
during the period of his engagement or thereafter, except as required in the
line of his engagement by the Company, any trade secrets or other confidential
information connected with the business of the Company; and Consultant shall not
take or retain or copy any of the Company's confidential information and trade
secrets. This provision shall not apply with respect to Company information
which has been voluntarily disclosed by the Company to the public or otherwise
enters the public domain through lawful means. Consultant further agrees that
all know how, documents, reports, plans, proposals and marketing plans and
materials made by him or that come into his possession by reason of his
engagement by the Company are the property of the Company and shall not be used
by him in any way adverse to the Company's interest. Consultant shall not
deliver, reproduce or in anyway allow such documents or things to be
deliberately used by any third party without specific direction or consent by a
duly authorized representative of the Company. The Company and Consultant hereby
acknowledge and agree that any breach of this provision will cause damage to the
Company in an amount difficult to ascertain. Accordingly, in addition to any
other relief to which the Company may be entitled by reason of such a breach,
the Company shall be entitled to such injunctive relief as may be ordered by any
court of competent jurisdiction (including, but not limited to, an injunction
restraining any violation of this provision without proof of actual damage).
5. INDEPENDENT CONTRACTOR. The relationship of Consultant to the
Company shall be that of an independent contractor. The Consultant shall not be
deemed to be an employee of the Company for any purpose, and neither Consultant
nor the Company shall represent or warrant the existence of such an employment
agreement to any third party. Consultant shall not be entitled to nor receive
any benefit normally provided to Company's employees such as, but not limited
to, vacation payment, retirement, health care or sick pay. The Company shall
have no responsibility or liability on account of acts or omissions of
Consultant, other than those made within the scope of Consultant's authority as
described in this Agreement. Consultant shall not have the authority to bind the
Company and shall not hold himself out as having such authority to any third
party. Consultant agrees to indemnify the Company against all liability and
expense which it may sustain or incur in connection with the failure to withhold
federal or state income taxes from the compensation paid to Consultant and in
connection with the failure to pay any other taxes (e.g., social security and
employment taxes) which may become due because Consultant is working for the
Company. Consultant represents and agrees that he will obtain any and all
business licenses and permits necessary to perform the consulting services
provided for hereunder. Consultant shall be solely responsible and liable for
the withholding, paying, and/or discharging, as required by law or by his
contractual arrangements or otherwise, of all taxes, costs or charges of any
nature.
6. INVESTMENT COVENANT. Consultant represents and agrees that
Consultant is accepting the warrants under this Agreement for Consultant's own
account and not with a view to or for sale in connection with any distribution
thereof. Consultant understands that the warrants will not be freely
transferable unless registered with the Securities and Exchange Commission and
fully vested and represents that he either has a preexisting personal or
business relationship with the Company or any of its officers, directors or
controlling persons or, by reason of his business or financial experience, has
the capacity to protect his own interest in connection with receiving the
warrants as compensation hereunder. Consultant further represents that he was
not solicited by publication of any advertisement in connection with the receipt
of the warrants.
7. INDEMNIFICATION. Each party shall defend, indemnify and hold
harmless the other, its officers, directors, agents, representatives, and
employees, from any cost, expense, loss or damage, including attorney's fees,
arising out of or connected with any claim by a third party which is
inconsistent with any of the representations made by either party to the other
in this Agreement or in the good faith performance by either party of its
responsibilities, duties and obligations in this Agreement.
8. MISCELLANEOUS.
1.4 REPRESENTATIONS. Consultant represents and warrants that
Consultant is under no restrictions or prohibition, whether contractual or
otherwise, with respect to its rights to execute this Agreement and perform his
obligations hereunder.
1.5 ASSIGNMENT. Except as otherwise provided, the rights and
obligations of the Company under this Agreement shall inure to the benefit of
and shall be binding upon its successors and assigns. The rights and obligations
of Consultant hereunder shall not be subject to transfer, assignment or
delegation by Consultant except that Consultant may transfer the warrants and
the associated registration rights to Blue and Gold Enterprises LLC. Any attempt
at a transfer or assignment in violation of the preceding sentence shall be void
and of no effect.
1.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and understandings with
respect thereto. No representation, promise, inducement or statement of
intention has been made by any party hereto that is not embodied herein and no
party shall be bound by or liable for any alleged representation, promise,
inducement or statement not so set forth herein.
1.7 WAIVER. No failure on the part of either party hereto to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof or as a waiver of any other right, power or remedy
hereunder or the performance of any obligation of the other party hereto; and no
single or partial exercise by either party hereto of any right, power or remedy
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or remedy by such party.
1.8 NOTICE. All notices, requests and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed given (a) upon receipt, if given by personal delivery, (b) upon
confirmation of delivery, if given by electronic facsimile, or (c) upon the
third business day following mailing, if deposited in the United States Mail,
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Company: HEALTH SCIENCES GROUP, INC.
0000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
If to Consultant: Xxxxxx Xxxxxx
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Either party may change its address or fax number by providing notice of such
change to the other party in accordance herewith.
1.9 CONTROLLING LAW. This Agreement shall be interpreted and enforced
under the internal laws of the State of California.
1.10 CONSTRUCTION. In construing this Agreement, none of the parties
hereto shall have any term or provision construed against such party solely by
reason of such party having drafted the same.
1.11 SEVERABILITY. If any sentence, paragraph, clause or combination of
the same in this Agreement is held by a court or arbitration panel of competent
jurisdiction to be unenforceable in any jurisdiction, such sentence, paragraph,
clause or combination shall be unenforceable in the jurisdiction where it is
invalid and the remainder of this Agreement shall remain binding on the parties
in such jurisdiction as if such unenforceable provision had not been contained
herein. The enforceability of such sentence, paragraph, clause or combination of
the same in this Agreement shall be otherwise unaffected and shall remain
enforceable in all other jurisdictions.
1.12 MODIFICATION. This Agreement may be modified, amended, superseded
or canceled, and any part of the terms, covenants, representations, warranties
or conditions of the Agreement may be waived, only by a written document
executed by the party or parties to be bound by any such modification,
amendment, cancellation or waiver.
1.13 COUNTERPARTS. This Agreement may be signed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
1.14 EFFECT OF HEADINGS. The headings used in this Agreement are
included for convenience only and are not to be used in construing or
interpreting this Agreement.
1.15 CUMULATIVE REMEDIES. Each and all of the rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and
none of them shall be exclusive of any other right or remedy; and the exercise
of any one of such rights or remedies shall not be deemed a waiver or an
election not to exercise any other such right or remedy.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
"Company"
HEALTH SCIENCES GROUP, INC.
By: ___________________________
"Consultant"
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Xxxxxx Xxxxxx
