EXHIBIT 10.10
CONSULTING AGREEMENT
This agreement dated for reference the 5th day of November 2002.
BETWEEN: Essentially Yours Industries Inc.
3960 Howard Hughes Parkway
Suite 500,
Las Vegas, NV 89109
Tel: 702.892.2956 Fax: 702.892.3950
Email:
("EYI")
AND: O'Neill Enterprises Inc.
141 -- 6200 McKay Ave.
Suite 424
Burnaby, B.C. V5H4M9
Tel: 604 618 6272 Fax:
Email: eyiinc@msn.com
(the "Consultant")
WHEREAS:
A. EYI is engaged in the sale and marketing of health and wellness
products and requires assistance in the sale and marketing of
EYI products and services: (the "Business");
B. Consultant is a company incorporated under the laws of the Province of
British Columbia; the Consultant, as at the date of this Agreement, is in
good standing under the laws of the Province of British Columbia; the
directors/officers of the Consultant are Dori O'Neill -- President and
Celeste O'Neill -- Secretary; the Consultant has the necessary experience
to assist EYI and the Business;
C. The principal of the Consultant is Dori O'Neill (the
"Principal") and the Consultant is controlled by the Principal;
NOW THEREFORE the parties hereto agree as follows:
1. APPOINTMENT
1.1 EYI hereby appoints Consultant, on a non-exclusive basis to provide
services on behalf of EYI, and Consultant hereby accepts such appointment,
all on the terms herein set out. The proposed title of the Principal whose
services are being provided via the Consultant is `Executive
Vice-President of Operations" or such other title as the parties shall
agree upon from time to time.
2. TERM
2.1 The term of this Agreement shall be for an initial period of five (5)
years (`initial term") commencing on the date hereof. This Agreement shall
automatically renew on a year to year basis at the end of the initial term
unless terminated in accordance with the provisions herein set out,
provided that the parties may negotiate an extension of this Agreement on
terms to be mutually agreed.
1
2.2 This Agreement shall terminate, without further notice upon:
a. The winding up or bankruptcy of Consultant or its Principal;
b. The Consultant or its Principal being found guilty of fraud or other
serious criminal offense or being declared mentally incompetent;
c. The agreement of the Parties to so do;
d. The Consultant being unable, for whatever reason, to continue to
provide services to EYI;
e. A change in control of Consultant without the prior written consent
of EYI; and
f. A material breach of the terms of this Agreement, including without
limiting the generality of the foregoing a breach by Consultant of
the provisions of Article 3.1.
2.3 Notwithstanding the foregoing either party may terminate this Agreement
without reason, upon one (1) year prior notice. Provided however,
termination of this Agreement shall not adversely affect payment of any
monies due hereunder to Consultant unless termination was due to a
material breach of this Agreement by Consultant or its Principal or due to
their fraud or other serious criminal offense.
3. SERVICES
3.1 The Consultant shall provide the following services and advice to EYI in
addition to such other services as EYI shall reasonably request and
Consultant agrees to provide, namely:
a. Consultant will perform the duties and services usually expected of
a person holding the office of Executive Vice-President in a NV
company operating the Business herein described;
b. Consultant will be responsible for the supervision of the senior
management team involved in the Business of EYI, including without
limiting the generality of the foregoing the Chief Financial
Officer, ("CFO"), the Vice-President of Marketing, the
Vice-President of Operations and any other management personnel that
the Board of Directors of EYI shall determine, from time to time,
should be under the supervision of Consultant;
c. Consultant will be responsible for contract negotiations on behalf
of EYI and approving of expenditures by the management team of EYI;
d. Consultant will also be involved in and assist in financing efforts
for the Business and for EYI and deal with and liaison with bankers,
financial consultants, accounting advisors and legal advisors and
any other type of consultant that may be necessary and in the best
interests of EYI and the Business;
e. Consultant agrees to provide EYI with such further and other
services and advice as EYI shall reasonably request and the
Consultant agree to provide.
3.2 Consultant agrees to provide the services requested on a best efforts
basis each and every day during the term of this Agreement and in
particular to be available every business day of each week for
consultation with EYI. Consultant agrees to provide whatever time and
services are necessary and reasonably required by EYI in order to make the
Business a success.
2
4. REMUNERATION
4.1 In consideration of the efforts of Consultant to be provided herein EYI
agrees to pay to Consultant the sum of Fifteen Thousand ($15,000.00)
United States Dollars per month payable on the first month following the
month that services are provided. Consultant and its Principal shall also
be entitled to bonuses, whether in stock or cash, based upon the efforts
of Consultant and the success of the Business as may be determined and
agreed upon by the Board of Directors of EYI, from time to time.
4.2 Consultant is authorized to incur reasonable business expenses in
conducting its activities on behalf of EYI. Consultant acknowledges that
EYI may from time to time adopt policies and procedures specifying the
nature and amount of expenses that will be considered reasonable, and the
statements contained in such policies and procedures shall be considered
conclusive as to such matters. EYI will reimburse Consultant for such
actual, out of pocket expenses, upon the Consultant's presentation and
itemized account of such expenses in the form required by then properly
adopted policies and procedures of EYI.
5. RELATIONSHIP
5.1 Nothing contained herein will be construed to make the Consultant an
employee or agent of EYI. The Consultant will at all times act as an
independent contractor. The Consultant will determine the method, details,
and means of performing its services under this Agreement. The Consultant
agrees to comply with all laws, ordinances, rules, and regulations, which
are applicable to the performance of its services. The Consultant agrees
to indemnify and hold EYI harmless from all claims, damages, and expenses
resulting from the Consultant's failure to comply and his performance
hereunder. EYI may provide Consultant with authority to bind EYI to
contracts and agreements and to make representations on behalf of EYI; in
such case the authority will be set out herein or approved in writing by
resolution of the Board of Directors.
6. CONFIDENTIALITY
6.1 The Consultant acknowledges that EYI has certain rights in certain
confidential, proprietary, trade secret or technical information including
but not limited to:
a. Computer software, including, but not limited to, source and object
codes, flowcharts, algorithms, record layouts, routines, report
formats, data, compilers, assemblers, design concepts and related
documentation, manuals, and other materials whether in human or
machine readable form;
b. Discoveries, inventions, copyrights, concepts and ideas, whether
patentable or not, and including, without limitation, the nature and
result of research, development, manufacturing, marketing, planning
and any other business activities;
c. Product specifications, formulas, designs, manufacturing processes
and methods, production machinery, quality assurance methods, binary
compensation plans, accounting systems, know-how and any other
proprietary information of any kind whatsoever;
3
d. Database of possible users of the Product;
All of which shall hereinafter be referred to as "Subject Information";
and
The Consultant further acknowledges that the Subject Information was
developed or acquired by EYI at considerable expense, has independent
economic value from not being known or readily ascertainable by others,
and is the subject of efforts made by EYI to maintain in secrecy; and
EYI wishes to maintain its rights to the Subject Information, and
The Consultant agrees not to, directly or indirectly, in any way, reveal,
report, publish, disclose, transfer or otherwise use any of the Subject
Information for his own personal benefit or gain or in any way other than
in the best interests of EYI.
7. COVENANTS
7.1 The Consultant covenants to EYI as follows:
a. To carry out the services performed on behalf of EYI with due
diligence and in the best interests of EYI;
b. To exercise all reasonable effort to provide the services to EYI on
a timely basis and to perform the services in accordance with good
business practice;
c. To comply with all lawful and reasonable directions and instructions
of EYI;
d. To devote full time efforts to EYI and the success of its Business;
e. Not to become involved, directly or indirectly, during the term of
this Agreement and for a period of twelve (12) months after
termination of this Agreement regardless of the reason for
termination, with or in any firm, corporation, business or project
that competes with the Business.
The Consultant acknowledges that the foregoing covenants are material
provisions of this Agreement and if Consultant breaches these covenants
whether by action or inaction that material harm will result to EYI and
its Business. The Consultant also acknowledges that the harm that may
result from a breach may not be fully compensated to EYI by payment of
damages and that an injunction or similar remedy may be necessary to fully
protect EYI and the Consultant agrees that EYI may obtain an injunction or
other similar relief from a Court of competent jurisdiction and that if
EYI seeks such a remedy that the Consultant will not oppose the
application of EYI.
8. NON-ASSIGNMENT
8.1 The Consultant shall not assign any of the rights or benefits granted
herein.
9. ARBITRATION
9.1 Save and except for actions for injunctive relief or similar, the Parties
shall make every effort to resolve amicably by direct, informal
negotiation any disagreement or dispute arising between them under and in
connection with this Agreement. If, after TEN (10) DAYS from the
commencement of such informal negotiations, the Parties have been unable
to amicably resolve any dispute arising out of or in
4
connection with this Agreement, except for actions for injunctive relief
or similar, any Party may require that the dispute be referred to and
finally resolved by Arbitration, under the rules of the American
Arbitration Association (the "Rules"), which Rules are deemed to be
incorporated by reference into this Article. The tribunal shall consist of
One (1) Arbitrator. The Parties will endeavour within TEN (10) DAYS of the
matter being referred to Arbitration to agree upon an Arbitrator, failing
which the Arbitrator shall be appointed in accordance with the Rules. The
place of Arbitration shall be Las Vegas, NV. The language of the
Arbitration shall be English. The Parties agree that the Arbitrator shall
be requested to make his award within SIXTY (60) DAYS following the later
of the conclusion of the Arbitration hearings or any exchange of final
written submissions by the Parties and further agree that the word of the
Arbitrator shall be final and binding and without appeal.
10. NOTICES
10.1 Any notice required or permitted to be given hereunder shall be in writing
and shall be effectively given if:
a. Delivered personally;
b. Sent by prepaid courier service or mail; or
c. Sent prepaid by fax or other similar means of electronic
communication including email;
addressed to the relevant party at the address/number shown for that party
at the beginning of this Agreement.
10.2 Any notice so given shall be deemed conclusively to have been given and
received when so personally delivered or, if sent by fax, email or other
electronic communications, on the first business day thereafter, or if
sent by mail on the third business day thereafter. Any party may change
any particulars of its address/number for notice by notice to the others
in the manner above described.
11. PRINCIPAL
11.1 Dori O'Neill acknowledges that he is the principal of the Consultant, has
reviewed this Agreement, and being content therewith covenants and agrees
to cause the Consultant to comply and abide with all of the terms and
conditions of this Agreement.
12. GENERAL
12.1 Time shall be of the essence of this Agreement.
12.2 Any changes or amendments or additions to this Agreement must be in
writing and signed by both parties to be effective.
12.3 This Agreement shall be construed in accordance with the laws of the State
of Nevada and the Courts of said State sitting at Las Vegas, NV shall
have, subject to the arbitration provisions contained herein, exclusive
jurisdiction to hear all actions arising out of or in respect of this
Agreement.
12.4 Failure on the part of a party to complain of any act or failure to act of
the other party or to declare the other party in default, irrespective of
how long such failure continues, shall not constitute a waiver by such
party of any rights hereunder.
5
12.5 This is a complete and exclusive statement of the Agreement between the
parties, which supersedes and merges all prior proposals, understandings
and all other agreements, oral or written, between the parties relating to
this Agreement. This Agreement may not be modified or altered except by a
written instrument duly executed by both parties.
12.6 The provisions of this Agreement are severable and if any term is alleged
or invalid for any reason whatsoever such allegations or invalidity shall
not affect the validity of the remainder of this Agreement.
12.7 This Agreement shall inure to the benefits of and be binding upon the
parties hereto and their respective successors and assigns, as permitted
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first above written.
Essentially Yours Industries, Inc. O'Neill Enterprises Inc.
Per: /s/ JAY SARGEANT Per: /s/ DORI JAMES O'NEILL
---------------------------------- ----------------------------------
Name: Jay Sargeant Name: Dori James O'Neill
Title: President/CEO Title: President
-------------------------------- --------------------------------
Dori O'Neill, Principal of Consultant is hereby intervened into this Agreement
and does hereby bind himself to its enforcement as of the date first above
written.
/s/ DORI O'NEILL
- --------------------------------------
Dori O'Neill
Dated as of the 5 day of November, 2002.
6