CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), dated as of March 20, 2002,
between Liquidix, Inc. a Florida corporation having its principal office at
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxx (the "Company") and
Xxxxxx X. Xxxx having an address at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000 (the "Consultant").
RECITALS
This Agreement is made with reference to the following facts and circumstances.
A. The Company wishes to engage the services of the Consultant to
advise and consult with the Company on certain business and financial matters in
foreign markets as set forth in this Agreement.
B. The Consultant is willing to accept such engagement, on the
terms set forth in this Agreement.
AGREEMENT
In consideration of the foregoing premises and the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Consultant hereby agree as follows:
1. Engagement.
1.1 The Company hereby engages the services of the Consultant, as an
independent contractor beginning upon the execution of this Agreement and
ending on August 20, 2002 (the "Term"), and the Consultant hereby accepts such
engagement, for the purposes set forth in section 1.2.
1.2 The scope of the services to be rendered by the Consultant to the
Company include and are limited to the following:
(a) The Consultant shall advise and consult with the Company's board of
directors and executive officers regarding the Company's business strategies,
including the evaluation of targets and the structuring of transactions in
Europe;
(b) The Consultant shall consult with the Company regarding an image
campaign in foreign markets;
(c) The Consultant shall be responsible for coaching the members of the
board of management of the Company to prepare them for presentations at
press/analyst conferences and one-on-one meetings; this includes rehearsals,
preparation of lectures and working through fact lists, which shall be prepared
by the Company;
(d) The Consultant will attempt to identify potential strategic
partners, customers and working relationships in foreign markets;
(e) The Consultant will assist the Company with translating the
Executive Summary of the Company from English to German;
(f) The Consultant shall provide the Company with two (2) round-trip
business class air ticket for travel from the United States to Germany;
(g) The Consultant shall provide the Company with all intracontinental
train and air tickets needed to travel to scheduled meetings during the one
week tour;
(h) The Consultant shall cover all lodging expenses incurred by the
Company during the one-week scheduled tour;
(i) Expenses arising from any additional related functions including but
not limited to: printing, advertising, and the contracting of external
advisors/consultants, shall be borne by the Company when prior written consent
of the Company has been obtained by the Consultant; and
(j) The Consultant shall devote such time to this engagement as is
reasonably necessary, but the Consultant need not devote full time or attention
to the engagement. The Company recognizes that the Consultant has numerous
clients and engagements, and that this engagement is not exclusive.
1.3 Notwithstanding any of the services to be performed above, the
Consultant is prohibited from rendering, and hereby acknowledges that none of
the foregoing consulting services permit or require him to render, services in
any way connected to capital raising or promoting, making a market or
conditioning the market with respect to the Company's capital stock or any other
services or activities that would cause any shares of common stock issuable by
the Company as payment of all or part of the Consulting Fee to be ineligible for
registration for resale on Form S-8 with the Securities and Exchange Commission.
2. Consulting Fees.
2.1 In consideration of the services to be performed hereunder, the
Company shall pay Consultant $170,000 USD (the "Consulting Fee"), payable in
either cash or in shares of the common stock of the Company (the "Tendered
Shares"), in accordance with Section 2.2 below; provided, however, that the
Consulting Fee may only be paid to Consultant as Tendered Shares is the
Tendered Shares have already been registered for resale with the Securities and
Exchange Commission on a Form S-8 registration statement, or other registration
statement which will allow the Tendered Shares to be freely traded and offered
for sale without restriction. In connection with the receipt by Consultant of
Tendered Shares, the Consultant agrees to execute, from time to time, one or
more of the Company's standard forms of Investment Representation Letter, a
copy of which has been delivered to Consultant, and such other instruments as
shall be reasonably requested by the Company in connection with the payment of
the Consulting Fee in shares of the Company's common stock. If the Consulting
Fee is not paid in a timely manner on the specified due date, then Company shall
may a cash payment to Consultant in an amount equal to one percent (1%) of the
outstanding balance of the Consulting Fee due at such time, for each day that
the Consulting Fee remains unpaid beyond the payment date, with said amount paid
as liquidated damages, and which represents a fair and reasonable estimate of
the damages that will be incurred by Consultant in the event of such a default.
Consultant acknowledges that he must, and agrees to, provide to the Company and
its counsel the information required to be included in such a registration
statement regarding the Consultant.
2.2 All payments shall be in United States dollars and are due on or
before the following dates and in the following amounts:
(a) June 14, 2002: Company shall pay Consultant $113,332.00 U.S.D. or
such number of Tendered Shares having a fair market value equal to $113,332.00
on June 14, 2002, based on the average of the previous three lowest closing bid
prices;
(b) August 23, 2002: Company shall pay Consultant $56,666.00 U.S.D. or
such number of Tendered Shares having a fair market value equal to $56,666 on
August 23, 2002, based on the average of the previous three lowest closing bid
prices.
2.3 Consultant agrees to enter into a shareholder agreement with
the Company as requested by the Company to be negotiated in good faith.
3. Termination.
This Agreement may not be terminated during the course of its Term
except by the non-breaching party upon material breach of this Agreement by the
other party.
4. Miscellaneous.
4.1 The relationship between the Company and the Consultant created by
this Agreement is that of independent contractors. The Consultant is not, by
virtue of this Agreement, and shall not for any purpose be deemed to be
hereunder, an officer, employee, agent or affiliate of the Company. The
services to be rendered by the Consultant pursuant to this Agreement do not
include the services or activities of an Investment Advisor, as that term is
defined by U.S. federal or state laws and, in performing services under this
Agreement, the Consultant shall not be deemed to be an Investment Advisor under
such laws.
4.2 The Company hereby agrees to defend, indemnify, and hold the
Consultant harmless from and against any and all claims, damages, judgments,
penalties, costs, and expenses (including attorney fees and court costs now or
hereafter arising from the enforcement of this clause) arising directly or
indirectly from the consulting services provided by the Consultant under Section
1.2 of this Agreement (except to the extent of Consultant's gross negligence in
the performance of those services), or from the activities of the Company or any
of its shareholders, officers, directors, employees, agents or affiliates,
whether such claims are asserted by any governmental agency or any other person.
The Consultant hereby agrees to defend, indemnify, and hold the Company and its
agents and employees harmless from and against any and all claims, damages,
judgments, penalties, costs, and expenses (including attorney fees and court
costs now or hereafter arising from the enforcement of this clause) arising
directly or indirectly from Consultant's gross negligence (or that of any agent
or employee of Consultant) in the performance of the consulting services, or any
conduct outside the scope of the consulting services, provided by the Consultant
under Section 1.2 of this Agreement, whether such claims are asserted by any
governmental agency or any other person. These indemnities shall survive
termination of this Agreement.
4.3 Any notice required or permitted to be given under this Agreement
shall be made to the addresses for the parties set forth below, and shall be
deemed properly given at the time of: i) personal delivery; ii) receipt by via
facsimile with a confirmation of receipt; or iii) received by certified mail, as
indicated on the return receipt.
To the Company:
Liquidix, Inc.
Attn: Xxxxxxx Xxx
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
To the Consultant:
Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
4.4 If any legal action, dispute, or other proceeding arises or is
commenced to interpret, enforce or recover damages for the breach of any term
of this Agreement, the prevailing Party shall be entitled to recover reasonable
attorney's fees incurred in connection with that action, in addition to costs of
suit.
4.5 This Agreement shall be governed by, and construed in accordance
with the laws of the State of California without respect to conflicts of laws
principles. The courts of Orange County, California shall have exclusive
jurisdiction for any action arising out of or related to this Agreement.
4.6 This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any prior or contemporaneous
agreements or understandings relating to the subject matter hereof.
4.7 The terms and conditions of this Agreement shall inure to the benefit
of, and be binding upon, the respective successors and permitted assigns of the
parties hereto. This agreement may not be assigned without the prior written
consent of the non-assigning party. No person shall be a third party beneficiary
of this Agreement except as specifically provided herein.
4.8 The provisions of this Agreement are severable. If any provisions
of this Agreement shall be held to be invalid or otherwise unenforceable, in
whole or in part, the remainder of the provisions or enforceable parts thereof
shall not be affected thereby and shall be enforced to the fullest extent
permitted by law.
4.9 No amendment, modification or alteration of the terms or provisions
of this Agreement shall be binding unless the same shall be in writing and duly
executed by the Parties, except that any of the terms or provisions of this
Agreement may be waived in writing at any time by the Party which is entitled
to the benefits of such waived terms or provisions. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provision hereof (whether or not similar). No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
4.10 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Telecopies and fax copies of original
signature pages shall be deemed to be originally-signed signature pages for all
purposes of this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement, effective
as of the date first above written.
THE CONSULTANT: THE COMPANY:
Xxxxxx Xxxx Liquidix, Inc.
---------------- By Xxxxxxx X. Xxx
Xxxxxx Xxxx -----------------
Name: Xxxxxxx X. Xxx
Title: Vice-President
Date signed: June 11,2002
