CORPORATE IMAGE AGREEMENT
This Consulting Agreement ("Agreement") made on this 11th day of September
2003, by and between Ten Stix Inc., a publicly traded over-the-counter Colorado
corporation, ("Client"), and Xxxxx Xxxxxxxx, an individual residing in Arizona,
("Xxxxxxxx"), is made in consideration of the mutual promises made herein and
set forth as follows:
ARTICLE 1. TERM OF CONTRACT
1.1 This Agreement will become effective on the date first stated above and
will continue in effect for twelve (12) months, or until terminated as provided
in Article 7, below.
ARTICLE 2. SERVICES TO BE PERFORMED BY XXXXXXXX
2.1 Services: Xxxxxxxx agrees to perform the following services for Client:
2.1.1 Redesign corporate materials by producing a master digital file
onto a full size (650MB) CD Rom with color processing, a DVD/CD black
packaging, insertion of outside wrap with CD and inside booklet (Approx. 5
3/8" x 7.5" when closed), DVD box inserts (paper stock: gloss white), ink
color processing (one sided), binding: trim to size (outside insert 10-7/8"
X 7-1/4" and inside insert 5" X 7-1/4").
2.1.2 Add/delete content and make suggestions to improve Client's
website (working with Client's current web master).
2.1.3 Implement advertising campaign (slogans and add slicks for
television and trade journals).
2.1.4 Create advertising material (handouts, multimedia applications
and still photography).
2.1.4 Design new logo.
2.1.5 Co-create with Client design selection and output of print
materials (folders, brochures and insert pages) related to Pro Shuffler
(TM) and Client owned/operated table games.
2.2 Delivery Schedule: Within ten (10) days following execution of this
Agreement and receipt of the payment due upon execution, Xxxxxxxx shall deliver
to Client a list of items needed (digital images, print materials).
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2.3 Method of Performing Services: Xxxxxxxx will determine the method,
details, and means of performing the above-described services. Xxxxxxxx may
perform the Services under this Agreement at any suitable time and location of
Xxxxxxxx'x choice.
2.4 Status of Xxxxxxxx: Xxxxxxxx is and shall remain an independent
contractor. Xxxxxxxx and any agents or employees of Xxxxxxxx shall not act as an
officer or employee of Client. Client assumes no liability for Xxxxxxxx'x
actions in performance, or responsibility for taxes, funds, payments or other
commitments, implied or expressed, by or for Xxxxxxxx. Xxxxxxxx has no authority
to assume or create any commitment or obligation on behalf of, or to bind,
Client in any respect.
2.5 Use of Employees or Subcontractors: Upon Client's prior written
consent, Xxxxxxxx may use any employees or subcontractors as Xxxxxxxx deems
necessary to perform the services required of Xxxxxxxx by this Agreement. Client
acknowledges that additional costs may accrue and Client hereby agrees to
reimburse Xxxxxxxx within ten (10) days of Xxxxxxxx submitting an invoice.
ARTICLE 3. COMPENSATION
3.1 Retainer Fee: Client shall pay a retainer fee of one hundred and eighty
thousand dollars ($180,000.00) OR registered shares in Client's common stock
(the "Shares") which have been registered on Form S-8 of the Securities Act of
1933 (the "Share Payments"), which shall be due and payable, as follows
("Retainer Fee"):
3.1.1 Six (6) equal payments of thirty thousand dollars ($30,000.00),
due the fifth day of each month with the first payment due immediately upon
the execution of this Agreement; or,
3.1.2 Six (6) equal Share Payments valued at thirty thousand dollars
($30,000.00), the number of shares of which shall be calculated based upon
the closing bid price of Common Stock as of the last day of the month
immediately preceding the date which each Share Payment is due, which shall
be due the fifth day of each month with the first payment due immediately
upon the execution of this Agreement.
3.1.3 Client agrees the above Share Payments are valued in total at
one hundred and eighty thousand dollars ($180,000.00), and the number of
shares to be issued shall be calculated based upon the closing bid price of
Common Stock as of the last day of the month immediately preceding the date
which each Share Payment is due. The Shares to be issued hereunder as Share
Payments shall not be subject to adjustment or affect as a result of any
reverse stock split.
3.1.4 Client agrees that, when received by Xxxxxxxx, the Shares shall
be nonrefundable regardless of the circumstances, whether foreseen or
unforeseen upon execution and delivery of this Agreement. Client further
acknowledges and agrees that said consideration is earned by Xxxxxxxx: (1)
upon Client's execution and delivery of the Agreement and prior to the
provision of any services hereunder;(2) in part, by reason of Xxxxxxxx'x
agreement to make its resources available to serve Client and as further
described in the Article 2 and elsewhere herein; and (3) regardless of
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whether Client seeks to terminate this Agreement prior to Xxxxxxxx'x'
delivery of any services hereunder. If Client takes any action to terminate
this Agreement or to recover any consideration paid or delivered by Client
to Xxxxxxxx other than reason of Xxxxxxxx'x' gross negligence or willful
misconduct, Xxxxxxxx shall be entitled to all available equitable remedies,
consequential and incidental damages and reasonable attorneys fees and
costs incurred as a result thereof, regardless of whether suit is filed and
regardless of whether Client or Xxxxxxxx prevail in any such suit.
3.2 Invoicing and Payment Terms: Xxxxxxxx shall submit to Client, on or
before the first of each month, an invoice for business expenses and all
additional services rendered. Client agrees to pay the net amount due to
Xxxxxxxx within three (3) days after receipt of invoice. Additionally, Xxxxxxxx
shall submit to Client invoices for "Retainer Fee" payment as agreed upon in
Article 3.1.1-3.1.4.
3.3 Payment of Expenses: Xxxxxxxx shall be responsible for its normal and
customary overhead business expenses incurred in performing services under this
Agreement, including without limitation, telephone, facsimile, postage,
photocopying, supplies, rent, employee salaries and benefits, and insurance.
Xxxxxxxx shall notify Client, in writing, of anticipated expenses that will be
billed to Client.
3.4 Additional Services: No additional services outside this Agreement are
to be performed without a separate Agreement.
ARTICLE 4. OBLIGATIONS OF XXXXXXXX
4.1 Non-Exclusive Relationship: Client acknowledges and agrees that the
relationship with Xxxxxxxx is non-exclusive and Xxxxxxxx may represent, perform
services for, and contract with, as many additional clients, persons or
companies as Xxxxxxxx in Xxxxxxxx'x sole discretion sees fit.
4.2 Xxxxxxxx'x Qualifications: Xxxxxxxx represents and warrants that
Xxxxxxxx has the qualifications and skills necessary to perform the services
under this Agreement in a competent and professional manner, and is able to
fulfill the requirements of this Agreement. Xxxxxxxx shall comply with all
applicable federal, state and local laws in the performance of its obligations
hereunder, and all materials used by Xxxxxxxx in fulfilling its obligations
under this Agreement shall not infringe upon any third party copyright, patent,
trade secret or other proprietary right. Xxxxxxxx acknowledges and agrees that
failure to perform all the services required under this agreement constitutes a
material breach of the Agreement.
4.3 Indemnity: Xxxxxxxx agrees to indemnify, defend, and hold Client free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Client may incur as a result of a breach by Xxxxxxxx of
any representation or agreement contained in this Agreement.
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4.4 Assignment: Neither this Agreement nor any duties or obligations under
this Agreement may be assigned by Xxxxxxxx without the prior written consent of
Client.
ARTICLE 5. OBLIGATIONS OF CLIENT
5.1 Compliance with Requests: Client agrees to comply with all reasonable
requests of Xxxxxxxx necessary to the performance of Xxxxxxxx'x duties under
this Agreement.
5.2 Company Provided Information: Client assumes full responsibility for
the accuracy and completeness of all information provided to Xxxxxxxx.
5.3 Indemnity: Client agrees to indemnify, defend, and hold Xxxxxxxx free
and harmless from all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorneys' fees, and costs, including without limitation expert
witnesses' fees, that Xxxxxxxx may incur as a result of any information provided
to Xxxxxxxx by Client under this Agreement.
ARTICLE 6. CLIENT INFORMATION
6.1 Nondisclosure/Nonuse of Client Information: Xxxxxxxx agrees that all
information provided by Client to Xxxxxxxx under this Agreement shall not be
disclosed or used by Xxxxxxxx for any purpose other than Xxxxxxxx'x performance
under this Agreement.
6.2 Confidential Information: Any written, printed, graphic, or
electronically or magnetically recorded information furnished by Client for
Xxxxxxxx'x use is and shall remain the sole property of Client. This proprietary
information includes, but is not limited to, marketing information, planning,
drawings, specifications, and information concerning Client's employees,
products, services, prices, and operations. Xxxxxxxx will keep this confidential
information in the strictest confidence, and will not disclose it by any means
to any person except with Xxxxxxxx'x prior written approval, and only to the
extent necessary to perform the services under this Agreement. This prohibition
also applies to Xxxxxxxx'x employees, agents, and subcontractors. On termination
of this Agreement or request by Client, Xxxxxxxx will return within two (2) days
any confidential information in Xxxxxxxx'x possession to Client.
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ARTICLE 7. TERMINATION OF AGREEMENT
7.1 Termination on Notice: Notwithstanding any other provision of this
Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force until the
Services provided for in this Agreement have been fully and completely
performed.
ARTICLE 8. GENERAL PROVISIONS
8.1 Notices: Any notices to be given by either party to the other shall be
in writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Notices
delivered personally shall be deemed communicated as of the date of actual
receipt. Mailed notices shall be deemed communicated as of five (5) days after
the date of mailing.
8.2 Attorneys' Fees and Costs: If this Agreement gives rise to a lawsuit or
other legal proceeding between any of the parties hereto, the prevailing party
shall be entitled to recover court costs, necessary disbursements (including
expert witnesses' fees) and reasonable attorneys' fees, in addition to any other
relief such party may be entitled.
8.3 Entire Agreement: This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services provided by Xxxxxxxx to Client under this Agreement, and
contains all of the covenants and agreements between the parties with respect to
this Agreement in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
8.4 Modifications: Any modification of this Agreement will be effective
only if it is in writing signed by the party to be charged.
8.5 Effect of Waiver: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
8.6 Partial Invalidity: If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
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8.7 Law Governing Agreement: This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona.
8.8 Jurisdiction/Venue: Jurisdiction and venue for any dispute arising out
of this Agreement shall be exclusively in the County of Maricopa, State of
Arizona.
8.8 Construction: If any construction is to be made of any provision of
this Agreement, it shall not be construed against either party on the ground
such party was the drafter of the Agreement or any particular provision.
8.9 Time: Time is of the essence in this Agreement.
8.10 Corporate Authorization: If any signatory of this Agreement is a
corporation, said signatory represents and warrants that this Agreement and the
undersigned's execution of this Agreement have been duly authorized and approved
by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation(s) executing this Agreement on behalf of the
corporation(s) represent and warrant they are officers of the corporation(s)
with full authority to execute this Agreement on behalf of the corporation(s).
IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective
as of the date first above written.
CLIENT: XXXXXXXX:
Ten Stix Inc. Xxxxx Xxxxxxxx
/S/ Xxxxxx X. Xxxxxx /S/ Xxxxx Xxxxxxxx
President Individual
Date: September 11, 2003 Date: September 11, 2003
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