EXHIBIT 10.18
CONSULTING AGREEMENT
This Agreement, entered into as of the date signed by both parties (or the
date of the latter signature if signed on different dates), is by and
between XXXX.xxx, Inc., a Delaware corporation (the "Company"), and Xxxx
Xxxxxxx (the "Consultant").
1. Engagement of Consultant. The Company hereby engages the Consultant
to perform the following services (the "Consulting Services") as an
independent contractor for the Company and any of its wholly owned
subsidiaries: consult with and advise the officers of the Company
concerning business strategies, sales contacts, and business
relationships.
2. Compensation. As consideration for performing the Consulting
Services, the Company shall provide to Consultant options for the
purchase of 500,000 shares of the Company's common stock, with a
strike price equal to $0.06 per share.
3. Term and Termination. The term of this Agreement shall be begin on
1/1/2003, and shall terminate on 12/31/2003, unless extended in
writing by the parties.
4. Confidential Information. The Consultant recognizes and acknowledges
that certain information, including, but not limited to, information
pertaining to the financial condition of the Company, its systems,
methods of doing business, agreements with customers or suppliers, or
other aspects of the business of the Company or which are sufficiently
secret to derive economic value from not being disclosed (hereinafter
"Confidential Information") may be made available or otherwise come
into the possession of the Consultant by reason of his services
performed for the Company. Accordingly, the Consultant agrees that he
will not (either during or after the term of this Agreement) disclose
any Confidential Information to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever or
make use to his personal advantage or to the advantage of any third
party, of any Confidential Information, without the prior written
consent of the Company. The Consultant shall, upon termination of
this Agreement, return to the Company all documents which reflect
Confidential Information (including copies thereof). Notwithstanding
anything heretofore stated in this subsection 5(a), Consultant's
obligations under this subsection shall not, after termination of this
Agreement, apply to information which has become generally available
to the public without any action or omission of the Consultant (except
that any Confidential Information which is disclosed to any third
party by an employee or representative of the Company who is
authorized to make such disclosure shall be deemed to remain
confidential and protectable under this subsection).
5. Records. All files, records, memoranda, and other documents regarding
former, existing, or prospective customers of the Company or relating
in any manner whatsoever to Confidential Information or the business
of the Company (collectively the "Records"), whether prepared by the
Consultant or otherwise coming into his possession, shall be the
exclusive property of the Company. All Records shall be immediately
placed in the physical possession of the Company upon the termination
this Agreement, or at any other time specified by the Company. The
retention and use by the Consultant of duplicates in any form of
Records after termination of this Agreement is prohibited.
6. Nature of Relationship. The parties intend that Consultant be an
independent contractor and not an agent or employee of the Company.
The Company shall not provide office space or office materials to
Consultant to provide the services set forth in this Agreement.
Except for the compensation to be provided herein, Consultant shall
not be entitled to any of the benefits provided by the Company to its
employees. Consultant shall be responsible for and shall pay any and
all state, federal, or local taxes on compensation paid to the
Consultant hereunder.
7. Entire Agreement; Modification; Waiver. This Agreement constitutes
the entire agreement between or among the parties pertaining to the
subject matter contained in it and supercedes all prior and
contemporaneous agreements, representations, and understandings of the
parties, including, but not limited to, any previous agreements, oral
or written. No supplement, modification, or amendment of this
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Agreement will be binding unless executed in writing by all the
parties or the applicable parties to be bound by such amendment. No
waiver of any of the provisions of this Agreement will constitute a
waiver of any other provision, whether or not similar, nor will any
waiver constitute a continuing waiver. No waiver will be binding
unless executed in writing by the party making the waiver.
8. Dispute Resolution. The purpose and intent of the parties is to
resolve their disputes expeditiously, and in a financially reasonable
manner; and further that the parties will meet personally, and
directly and in good faith to discuss how to proceed with dispute
resolution and with that purpose and intent in mind. Any dispute
between the parties to this Agreement or any other controversy or
claim arising out of or relating to this Agreement or the breach
thereof shall be submitted to and resolved by binding arbitration in
Albuquerque, New Mexico. Such arbitration shall be conducted upon the
request of any party, before a single arbitrator, selected by the
parties or, failing agreement on a choice of an arbitrator within
thirty (30) days of service of written demand for arbitration, by an
arbitrator designated pursuant to the Uniform Arbitration Act, NMSA
44-7-1 et seq. Once the arbitrator is selected, but as a condition
precedent to proceeding with arbitration, the parties shall engage on
a good-faith best efforts basis (i) in direct fact-to-face
negotiations, and failing resolution by negotiation, then
(ii) mediation and, failing mediation, then (iii) arbitration. Such
arbitration shall be in accordance with the laws of the State of New
Mexico and pursuant to the Uniform Arbitration Act, and subject to the
Federal Rules of Civil Procedure as the arbitrator may determine. The
arbitration shall be conducted within sixty (60) days of the selection
of the arbitrator and the arbitrator shall render his or her decision
within twenty (20) days after conclusion of the arbitration. The
prevailing party in the arbitration shall be entitled as a part of the
arbitration award to the costs and expenses (including reasonable
attorney fees) of investigating, preparing, and pursuing or defending
the arbitration claim as such costs and expenses are awarded by the
arbitrator. The duty to pursue the foregoing dispute resolution
provisions shall survive the termination or cancellation of this
Agreement. Arbitration pursuant to the foregoing shall be
specifically enforceable under prevailing arbitration law of the State
of New Mexico. The decision of the arbitrator shall be final and
binding upon the parties and enforceable in a court of competent
jurisdiction.
9. Assignment. Neither party to this Agreement may assign its or his
rights or obligations hereunder without the prior written consent of
the other party to this Agreement, except that the Company may assign
this Agreement to any successor to the entire business of the Company
pertaining to this Agreement without requiring approval of the
Consultant.
10. Counterparts; Facsimile Execution. This Agreement may be executed in
any number of counterparts and all such counterparts taken together
shall be deemed to constitute one instrument. Delivery of an executed
counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this
Agreement.
11. Effect of Headings. The subject headings of the sections and
subsections of this Agreement are included for convenience only and
will not affect the construction of any of its provisions.
12. Drafting. This Agreement was drafted with the joint participation of
the parties and/or their legal counsel. Any ambiguity contained in
this Agreement shall not be construed against any party as the
draftsman, but this Agreement shall be construed in accordance with
its fair meaning.
13. Binding on Successors. This Agreement will be binding on, and will
inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors, and assigns.
14. Survival of Covenants, Etc. All covenants, representations and
warranties made herein shall survive the making of this Agreement and
shall continue in full force and effect until the obligations of this
Agreement have been fully satisfied.
15. Governing Law. This Agreement will be construed in accordance with,
and governed by, the laws of the State of New Mexico as applied in
contracts that are executed and performed entirely in the State of New
Mexico.
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16. Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of final jurisdiction, it is the intent of
the parties that all other provisions of this Agreement be construed
to remain fully valid, enforceable, and binding on the parties, and
that the invalid or unenforceable provision be severed herefrom only
to the extent necessary to correct such invalidity or
unenforceability.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
XXxX.xxx, Inc.
/s/ Xxxxxxx Xxxxxxxx 8/29/03 /s/ Xxxx X. Xxxxxxx 2 Sept 03
Xxxxxxx Xxxxxxxx, CEO date Xxxx Xxxxxxx date
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