CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement (this "Agreement") is
entered into as of this 1st day of April, 2002, by and between SportsNuts, Inc.
a Delaware corporation (the "Company") and Xxxx Xxxxx ("Consultant"),
collectively referred to hereinafter as the "Parties" or individually as a
"Party."
WHEREAS, the Company is engaged in the business of creating a sports
management and marketing busines; and
WHEREAS, the Company seeks to utilize the services of Consultant to
introduce the Company to individuals and organizations involved in the sports
industry, including professional associations, teams, coaches, and athletes, and
to provide business development and advisory services to the Company
(collectively, the "Services") in furtherance of the development and promotion
of its business.
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 until March 31, 2003 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.
Unless otherwise set forth in writing and signed by both Parties, the
Company shall pay, and Consultant hereby accepts as full compensation for
Services rendered hereunder, the following amounts:
4.1 Shares of Common Stock. The Company hereby grants to Consultant Five
Million (5,000,000) shares of the Company's Common Stock.
4.2 Hourly Rate. Consultant's time charges for Services will be billed at
the rate of the lesser of: (i) One Hundred Dollars ($100.00) per hour; or (ii)
Eight Hundred Dollars ($800.00) per day. Any unpaid charges after application of
the retainer shall be paid within twenty (20) days of receipt of an itemized
monthly billing from Contractor. Any unused retainer shall be carried forward to
and applied against the succeeding month's xxxxxxxx. Contractor agrees that the
Company shall not be billed for any time charges attributable to travel to and
from either the Company's offices, or any other travel required on behalf of the
Company.
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
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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 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
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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
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 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, Xxx. 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/ Xxxx Xxxxx
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Xxxxxxx X. Xxxxx Xxxx Xxxxx
Chief Executive Officer
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