SPORTSNUTS, INC.
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of this 1st
day of May, 2002 by and between SportsNuts, Inc. a Delaware corporation
(the "Company") and Xxxxxx Xxxx ("Consultant"), collectively referred to
hereinafter as the "Parties" or individually as a "Party."
WHEREAS, the Company is engaged in the business of creating an amateur
sports Internet portal, and providing technology and marketing services to
sports events and organizations, and requires technical assistance in the area
of computer hardware and systems; and
WHEREAS, the Company seeks to utilize the services of Consultant to provide
technical hardware and systems consulting to the Company, and to provide
advisory services to the Company (collectively, the "Services") in furtherance
of the development of such Internet portal and services to sports events and
organizations.
NOW, THEREFORE, In consideration of the foregoing premises and the mutual
covenants contained herein, the Parties hereto agree as follows:
1. Services. During the term of this Agreement, Consultant agrees to provide
the Services as requested by the Company on a continuous basis and in
accordance with accepted industry practices and guidelines and all
applicable federal, state and local laws, rules and regulations. Consultant
also agrees to provide the Services pursuant to the guidelines and
requirements promulgated by the Company from time to time and provided to
Consultant by the Company.
2. Term. This Agreement will become effective on the date stated above, and
will continue in effect for six (6) months unless terminated by either
Party as provided herein.
3. Obligations of Consultant.
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3.1 Licenses and Education. Consultant shall be responsible for obtaining
and maintaining Consultant's professional licenses, and/or certifications,
if any, and obtaining any continuing education or certification that is
required or is prudent to remain current and knowledgeable in Consultant's
field.
3.2 Taxes. Consultant shall be responsible for paying federal, state and
local income, Social Security, unemployment, and all other taxes upon
amounts earned by or paid to Consultant pursuant to this Agreement.
3.3 Expenses. Except as agreed by the Company in writing, Consultant shall
be responsible for providing Consultant's own transportation, lodging,
meals, insurance, and any and all other employment-related expenses.
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4 Compensation. The Company shall pay, and Consultant hereby accepts as full
compensation for Services rendered hereunder, Three Hundred Thousand
(300,000) Shares of the Company's Common Stock, payable as follows: fifty
thousand (50,000) shares per month for six months.
5. Registration. As soon as practicable, the Company agrees to file a
Registration Statement with the Securities and Exchange Commission on Form
S-8 with respect to the shares of Common Stock issued to Consultant
pursuant to this Agreement.
6. Covenant Not to Compete
6.1 Covenant. Consultant hereby agrees that during the term of this
Agreement and during the one (1) year period following the termination of
this Agreement, Consultant will not directly or indirectly compete (as
defined in Section 6.2 below) with the Company in any geographic area in
which the Company does or has done business, and will not (i) induce or
attempt to induce any employee of the Company to leave the employ of the
Company or in any was interfere with the relationship between the Company
and any employee thereof, (ii) hire directly or through another entity any
person who was an employee of the Company at any time during the six month
period preceding the termination of this Agreement, (iii) induce or attempt
to induce any customer, supplier, licensee, or other business relation of
the Company to cease doing business with the Company or in any way
interfere with the relationship between any such customer, supplier,
licensee, or business relation and the Company, or (v) authorize or assist
in the taking of any of the foregoing actions by any third party.
6.2 Direct and Indirect Competition. As used herein, the phrase "directly
or indirectly compete" shall include owning, managing, operating or
controlling, or participating in the ownership, management, operation or
control of, or being connected with or having any interest in, as a
stockholder, director, officer, employee, Consultant, agent, consultant,
assistant, instructor, advisor, sole proprietor, partner or otherwise, any
business (other than the Company's) which is the same as or competitive
with any business conducted or to be conducted by the Company; provided,
however, that this prohibition shall not apply to ownership of less than
one percent (1%) of the voting stock in companies whose stock is traded on
a national securities exchange or in the over-the-counter market.
6.3 Enforceability. If any of the provisions of this Section 6 is held
unenforceable, the remaining provisions shall nevertheless remain
enforceable, and the court making such determination shall modify, among
other things, the scope, duration, or geographic area of this Section to
preserve the enforceability hereof to the maximum extent then permitted by
law. In addition, the enforceability of this Section is also subject to the
injunctive and other equitable powers of a court as described in Section 10
below.
7. Confidential Information. Consultant acknowledges that during the term of
this Agreement, Consultant will develop, discover, have access to, and
become acquainted with technical, financial, marketing, personnel, and
other information relating to the present or contemplated products or the
conduct of business of the Company which is of a confidential and
proprietary nature ("Confidential Information"). Consultant agrees that all
files, records, documents, and the like relating to such Confidential
Information, whether prepared by him or otherwise coming into Consultant's
possession, shall remain the exclusive property of the Company, and
Consultant hereby agrees to promptly disclose such Confidential Information
to the Company upon request and hereby assigns to the Company any rights
which Consultant may acquire in any Confidential Information. Consultant
further agrees not to disclose or use any Confidential Information and to
use Consultant's best efforts to prevent the disclosure
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or use of any Confidential Information either during the term of this
Agreement or at any time thereafter, except as may be necessary in the
ordinary course of performing Consultant's duties under this Agreement.
Upon termination of this Agreement for any reason, Consultant shall
promptly deliver to the Company all materials, documents, data, equipment,
and other physical property of any nature containing or pertaining to any
Confidential Information, and Consultant shall not take from the Company's
premises, without its prior written consent, any such material or equipment
or any reproduction thereof.
8. No Conflicts. Consultant hereby represents that, to the best of
Consultant's knowledge, Consultant's performance of all the terms of this
Agreement and work as an independent Consultant for the Company does not
breach any oral or written agreement which Consultant has made prior to the
effective date of this Agreement.
9. Equitable Remedies. Consultant acknowledges that Consultant's obligations
hereunder are special, unique, and extraordinary, and that a breach by
Consultant of certain provisions of this Agreement, including without
limitation Sections 6 and 7 above, would cause irreparable harm to the
Company for which damages at law would be an inadequate remedy.
Accordingly, Consultant hereby agrees that in any such instance the Company
shall be entitled to seek injunctive or other equitable relief in addition
to any other remedy to which it may be entitled. All of the rights of the
Company from whatever source derived, shall be cumulative and not
alternative.
10. Assignment. This Agreement is for the unique personal services of
Consultant and is not assignable or delegable in whole or in part by
Consultant without the consent of an authorized representative of the
Company. This Agreement may be assigned or delegated in whole or in part by
the Company and, in such case, the terms of this Agreement shall inure to
the benefit of, be assumed by, and be binding upon the entity to which this
Agreement is assigned.
11. Waiver or Modification. Any waiver, modification, or amendment of any
provision of this Agreement shall be effective only if in writing in a
document that specifically refers to this Agreement and such document is
signed by the Parties hereto.
12. Independent Contractor. The Parties agree that Consultant is an independent
Contractor with respect to the Company and that no employment relationship
exists between the Parties hereto. Consultant shall use his own
professional discretion in performing the services called for hereunder. As
an independent Contractor, Consultant shall have no power to act for, bind,
or otherwise create or assume any obligation on behalf of the Company, for
any purpose whatsoever.
13. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the Parties hereto with respect to the
subject matter covered herein and supersedes all prior oral or written
understandings and agreements with respect thereto.
14. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining
provisions shall nevertheless remain in full force and effect.
15. Notices. Any notice required hereunder to be given by either Party shall be
in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, or by private courier, with written
verification of delivery, or by facsimile transmission to the other Party
to the address or telephone number set forth below or to such other address
or telephone number as either Party may designate from time to time
according to this provision. A notice delivered personally shall be
effective
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upon receipt. A notice sent by facsimile transmission shall be effective
twenty-four hours after the dispatch thereof. A notice delivered by mail or
by private courier shall be effective on the third day after the day of
mailing.
(a) To Consultant at: ------------------------------
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(b) To the Company at: 10421 South 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
16. Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah without regard to the
conflict of laws. The Parties further agree that proper venue and
jurisdiction for any dispute under this agreement shall be the courts in
the State of Utah.
IN WITNESS WHEREOF, Consultant has signed this Agreement personally and the
Company has caused this Agreement to be executed by its duly authorized
representative.
SPORTSNUTS, INC. CONSULTANT
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxx
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Xxxxxxx X. Xxxxx Xxxxxx Xxxx
Chief Executive Officer
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