Exhibit 10.21
CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 17th day of October, 2002 by
and between Vital Living, Inc., hereinafter referred to as "Client", with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and Weil Consulting Corporation, a California Company with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇, hereinafter referred to as "Consultant".
RECITALS
WHEREAS, the Consultant possesses skills, knowledge and qualifications
beneficial to the Client.
WHEREAS, in the operation of Client's business affairs, the Client is in
need of the services which Weil Consulting Corporation provides and wishes to
enter into a business arrangement with Weil Consulting Corporation to provide
such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it
is hereby agreed as follows and will confirm the arrangements, terms and
conditions pursuant to which Weil Consulting Corporation (the "Consultant") has
been retained to serve as a business consultant to Vital Living, Inc. (also
sometimes referred to as the "Client" or "Company") on a nonexclusive basis as
an independent contractor. The undersigned hereby agree to the following terms
and conditions:
AGREEMENTS
1. Terms of Contract. This Agreement will become effective October 17, 2002
and will continue in effect for a period of one year (1) year unless
earlier terminated pursuant to Section 4 of this Agreement.
2. Services to be Performed by Independent Contractor/Consultant
2.1 Duties of Independent Contractor. Contractor shall at the request of
the Client, upon reasonable notice; render the following services to the
Client from time to time.
2.2 Duties of Consultant. Consultant agrees to provide general business
consulting to Client. The Consultant will provide such consulting services
and advice pertaining to the Client's business affairs as the Client may
from time to time reasonably request. Per the Client's request, the
Consultant will provide Client with the benefits of its reasonable
judgment and efforts regarding the following: corporate structures,
general business policy, investor relations and public relations planning,
strategic planning, including alliance partnerships and acquisitions.
2.3 Independent Contractor Status. It is the express intention of the
parties that Weil Consulting Corporation be an independent
contractor and not an employee, agent, joint venture or partner of
Client. Client shall have no right to and shall not control the
manner or prescribe the method by which Weil Consulting Corporation
performs the above described services. Weil Consulting Corporation
shall be entirely and solely responsible for its own actions and the
actions of its agents, employees or partners while engaged in the
performance of services required by this Agreement. Nothing in this
Agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between
Client and Weil Consulting Corporation or any employee or agent of
Weil Consulting Corporation. Both parties acknowledge that Weil
Consulting Corporation is not an employee for state or federal
income tax purposes and Weil Consulting Corporation specifically
agrees that is hall be exclusively liable for the payment of all
income taxes, or other state or Federal taxes that are due as a
result of receipt of any consideration for the performance of
services required by this Agreement. Weil Consulting Corporation
agrees that any such consideration is not subject to withholding by
the Client for payment of any taxes and Weil Consulting Corporation
directs Client not to
withhold any sums for the consideration paid to Weil Consulting
Corporation for the services provided hereunder. Weil Consulting
Corporation shall retain the right to perform services for others
during the term of this Agreement. Nothing herein shall constitute
Consultant as an employee or agent of the Client, except to such
extent as might hereinafter be agreed, Consultant shall not have the
authority to obligate or commit the Client in any matter whatsoever.
2.4 Use of Employees of Contractor. Weil Consulting Corporation may, at
its own expense, use any employees or subcontractors, as it deems
necessary to perform the services required by Weil Consulting Corporation
by this Agreement. Client may not control, direct or supervise Consultant
and/or it's employees or subcontractors in the performance of those
services.
2.5 Expense. Weil Consulting Corporation shall bear out-of-pocket costs
and expenses incident to performing the Consulting Services, without a
right of reimbursement from the Client unless such expenses are
pre-approved by the Client.
2.6 Available Time. Consultant shall make available such time as it, in
its sole discretion, shall deem appropriate for the performance of its
obligation under this Agreement.
3. Compensation.
3.1 Consideration. Client and Consultant agree that Weil Consulting
Corporation, subject to the approval of the Company's Board of Directors,
shall receive Thirty Three Thousand (33,000) shares of restricted 144
stock of Vital Living, Inc. upon the signing of this Agreement. These
shares shall all vest immediately and be considered fully paid upon the
signing of this agreement.
3.2 Reimbursement for Out-of-Pocket Expenses. Weil Consulting will be
responsible for any and all expenses in furtherance of this
agreement up to $3,000 in any calendar month. Subject to Weil
Consulting Corporation receiving prior written approval from Client,
Client will re-imburse expenses in excess of $3,000 in any calendar
month for out-of-pocket expenses incurred in furtherance of this
Agreement for travel, postage, printing, telex, and delivery
services provided has received written approval in advance by Client
for such expenses.
3.3 Assignment and Termination. This Agreement shall not be assignable
by any party.
4. Termination Agreement
4.1 Termination on Notice. Notwithstanding any other provisions of this
Agreement, Client may terminate this Agreement at any time by giving
thirty (30) days written notice to the Consultant. Upon Weil Consulting
receiving 30 days written notification of termination of this Agreement by
Client, it is to receive full payment for services and expenses as stated
in item 3.1 and 3.2 of this Agreement. Unless otherwise terminated as
provided in this Agreement, this Agreement will continue in force for a
period of one year (1)
4.2 Termination on Occurrence of Stated Event. This Agreement will
terminate automatically on the occurrence of the following event:
(a) bankruptcy or insolvency of Client
(b) non-payment or performance as stated in this Agreement by Client
5. Confidentiality. During the Term of this Agreement and for a period of two
year thereafter, the Consultant shall keep confidential the Client's trade
secrets, information, ideas, knowledge and papers pertaining to the
affairs of the Client. Without limiting the generality of the foregoing,
such trade secrets shall include: the identity of the Client's customers,
suppliers and prospective customers and suppliers; the identity of the
Client's creditors and other sources of financing; the Client's estimating
and costing procedures and the cost and gross prices charged by the Client
for its products; the prices or other consideration charged to or required
of the Client by any of its suppliers or potential suppliers; the Client's
sales and promotional policies; and all information relating to
entertainment programs or properties being produced or otherwise developed
by the Client. The Consultant shall not reveal said trade secretes to
others except in the proper exercise of its duties for the Client, or use
their knowledge thereof in any way that would be detrimental to the
interest of the Client, unless compelled to disclose such information by
judicial or administrative process; provided, however, that the divulging
of information shall not be a breach of this Agreement to the extent that
such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to
judicial or governmental order. The Consultant shall also treat all
information pertaining to the affairs of the Client's suppliers and
customers and prospective customers and suppliers as confidential trade
secrets of such customers and suppliers and prospective customers.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Client or to any
officer, director, employee, stockholder or creditor of the Client, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, the Client agrees to defend, indemnify,
and hold the Consultant harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in the defense
of the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Client, made by the Consultant without
the prior approval or authorization of the Client.
7. Client's Liability. The Consultant agrees to defend, indemnify, and hold the
Client harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in defense of the Client)
which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Client, without the prior approval or authorization of the Client
or which are otherwise in violation of applicable law.
8. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Client and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
9. Waiver. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provisions, nor shall any waiver
constitute a continuing wavier. No waiver shall be binding unless executed in
writing by the party making the waiver.
10. Assignment and Binding Effect. This Agreement and the rights hereunder may
not be assigned by the parties (except by operation of law, merger,
consolidation, and sale of assets) and shall be binding upon and inure to the
benefit of the parties and their respective successors, assigns and legal
representatives.
11. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is deemed unlawful or invalid for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of
this Agreement.
12. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Arizona. Any litigation arising
hereunder shall be initiated only in the state of Arizona. The prevailing party
shall be entitled to recover its attorney's fees and costs. This Agreement shall
not be construed against either party hereto in the event of any ambiguities
13. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
14. Further Acts. Each party agrees to perform any further acts and execute and
deliver any further documents that may be reasonably necessary to carry out the
provisions and intent of this Agreement.
15. Acknowledgment Concerning Counsel. Each party acknowledges that it had the
opportunity to employ separate and independent counsel of its own choosing in
connection with this Agreement.
16. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
17. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
VITAL LIVING, INC.
BY:_____________________________________ DATE:_____________
▇▇▇▇▇▇▇ ▇▇▇▇▇, CEO
▇▇▇▇ CONSULTING CORPORATION
BY:_____________________________________ DATE:_____________
▇▇▇▇▇▇▇ ▇▇▇▇, President