AMENDED AND RESTATED CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AGREEMENT, effective as of January 20,
2004 (the "Effective Date"), by and between Xxxxxxxxx Xxxxx, an individual with
its principal place of business at 000 Xxxx Xxxx Xxxxxx Xxxx Xxxxxxxxx X.X.
00000 (hereinafter referred to as "Consultant"), and Power Channel Inc., a
Delaware corporation with its principal place of business at 00 Xxxxx Xxxx
Xxxxxx, Xxxxx 00, Xxx Xxxx, XX 00000 (hereinafter referred to as "Corporation").
WITNESSETH:
WHEREAS, the Corporation and the Consultant entered into a Consulting
Agreement efFective the 24ei day of November, 2003 (the Agreement); and
WHEREAS, pursuant to such Agreement the Corporation has issued 750,000
shares of restricted common stock to the Consultant; and
WHEREAS, The corporation and the Consultant, after entering into the
Agreement, have agreed to certain additional compensation to be paid to the
Consultant, including an additional 260,943 shares free trading and $10,000 in
cash and,.
WHEREAS, in order to effect the foregoing, and to reflect the fact that the
provision relating to additional compensation bonuses to be paid to the
Consultant as a result of increases to market capitalization was stricken from
the agreement prior to its execution, the Corporation and the Consultant wish to
amend and restate the Consulting Agreement as hereafter provided.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
ofthe parties herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, it is agreed as follows:
1. CONSULTING ARRANGEMENT.
1.1 Contract for Services. The Corporation hereby contracts for
the services of Consultant and Consultant agrees to perform such duties and
responsibilities and to render advice and consulting as may be requested by the
Corporation from time to time during the term of this consulting arrangement in
connection with the Corporation's
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business throughout the United States and world wide ("Consulting Arrangement").
Consultant shall use his best efforts to keep the Corporation informed of all
corporate business opportunities which shall come to his attention and appear
beneficial to the Corporation's business so that the Corporation can obtain the
maximum benefits from Consultant's knowledge, experience, and personal contacts.
Services Rendered by Consultant. Said consulting services shall
include, but not be limited to re-structuring the
balance sheet for the company, negotiating with
creditors, retiring debt, contract negotiation,
preparation and review of Private Placement
Memorandum, assisting with new business development.
1.3 Prohibited Services. The services to be rendered by the
Consultant to the Corporation shall under no circumstances include, directly or
indirectly, the following: (i) Any activities which could be deemed by the
Securities and Exchange Commission to constitute investment banking or any other
activities required the Consultant to register as a broker-dealer under the
Securities Exchange Act of 1934; (ii) Any activities which could be deemed to be
in connection with the offer or sale. of securities in a capital-raising
transaction; or (iii) Any market making or promotional activities regarding or
involving the Company's common stock.
2. RELATIONSHIP BETWEEN PARTIES. During the term of the Consulting
Arrangement, Consultant shall be deemed to be an independent contractor. He
shall be free to devote his time, energy and skill to any such person, firm or
company as he deems advisable except to the extent he is obligated to devote his
time, energy and skill to the Corporation pursuant to the terms of this
Agreement. Consultant shall not be considered as having an employee status
vis-a-vis the Corporation, or by virtue of the Consulting Arrangement being
entitled to participate in any plans, arrangements or distributions by the
Corporation pertaining to or in connection with any pension, stock, bonus,
profit sharing, welfare benefits, or similarbenefits for the regular employees
of the Corporation. The Corporation shall not withhold any taxes in connection
with the compensation due Consultant hereunder, and Consultant will be
responsible for the payment of any such taxes and hereby agrees to indemnify the
Corporation against nonpayment thereof.
3. COMPENSATION FOR THE CONSULTING ARRANGEMENT.
As full consideration for the consulting services to be provided by
consultant during the term of the agreement the consultant shall receive 750,000
shares restricted of the
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company with piggy-back registration rights on the next Registration Statement
to be filed by the company 3.1 Free trading shares 1,060,943
3.2 Options. A total of 1,200,000 options with a (5) year
expiration. Options will have piggy-back rights on the next
registration statement to be filed by the company. The options
will be as follows 1,200,000 will have a five year expiration
after registration effectiveness all options are exercisable at
.20 cents per share.
3.3 Cash compensation. An amount of 10,000 dollars.
4. TERM OF CONSULTING ARRANGEMENT. The Consulting Arrangement shall begin
effective as of the Effective Date of this Agreement and shall continue for a
period of twelve (12) months, until November 24, 2004 (the "Consulting
Period").
5. CONFIDENTIALITY COVENANTS.
5.1 Acknowledgments. by the Consultant The Consultant acknowledges that
(a) during the. Consulting Period and as a part of his Consulting Arrangement,
the Consultant will be afforded access to Confidential Information (as
defined below); (b) public disclosure of such Confidential Information could
have an adverse effect on the Corporation and its business; (c) because the
Consultant possesses substantial technical expertise and skill with respect to
the Corporation's business, the Corporation desires to obtain exclusive
ownership of each Consultant Invention (as defined below), and the Corporation
will be at a substantial competitive disadvantage if it fails to acquire
exclusive ownership of each Consultant Invention; (d) the provisions of this
Section 5 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to provide the Corporation with
exclusive ownership of all Consultant Inventions.
5.2 Agreements of the Consultant In consideration of the compensation and
benefits to be paid or provided to the Consultant by the Corporation under this
Agreement, the Consultant covenants as follows:
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(a) Confidentiality.
(i) During and following the Consulting Period, the Consultant will hold in
confidence the. Confidential Information and will not disclose it to any person
except with the specific prior written consent of the Corporation or except as
otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Corporation will be entitled to all of the
protections and benefits under Miami, Florida Statutes and common law and any
other applicable law. If any information that the Corporation deems to be a
trade secret is found by a court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement, The
Consultant hereby waives any requirement that the Corporation submit proof of
the economic value of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions applies to any
part of the Confidential Information that the Consultant demonstrates was or
became generally available to the public other than as a result of a disclosure
by the Consultant.
(iv) The Consultant-will not remove from the Corporation's premises (except
to the extent such removal is for purposes of the performance of the
Consultant's duties at home or while traveling, or except as otherwise
specifically authorized by the Corporation) any document, record, notebook,
plan, model, component, device, or computer software or code, whether embodied
in a disk or in any other form (collectively, the "Proprietary Items"). The
Consultant recognizes that, as between the Corporation and the Consultant, all
of the Proprietary Items, whether or not developed by the Consultant, are the
exclusive property of the Corporation. Upon termination of this Agreement by
either party, or upon the request of the Corporation during the Consulting
Period, the Consultant will return to the Corporation all of the Proprietary
Items in the Consultant's possession or subject to the Consultant's control, and
the Consultant shall not retain any copies, abstracts, sketches, or other
physical embodiment of any of the Proprietary Items.
(b) Consultant Inventions. Each Consultant Invention will belong exclusively
to the Corporation, The Consultant acknowledges that all of the Consultant's
writing works of authorship, and other Consultant Inventions are works made for
hire and the property of the Corporation, including any copyrights, patents, or
other intellectual property rights pertaining thereto. If it is determined that
any such works are' not works made for hire, the Consultant hereby assigns to
the Corporation all of the Consultant's right, title, and interest, including
all rights of copyright, patent, and other intellectual property rights, to
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and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information, and any other information, however documented,
that is a trade secret within the meaning of Chapter 688, Florida Statutes;
(ii) information concerning the business and affairs of the Corporation
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(iii) notes, analysis, compilations, studies, summaries, and other material
prepared by or for the Corporation containing or based, in whole or in part, on
any information included in the foregoing.
(b) For the purposes of this Section 5, "Consultant Invention" shall mean
any idea, invention, technique, modification, process, or improvement (whether
patentable or not), any industrial design (whether registerable or not), any
mask work, however fixed or encoded, that is suitable to be fixed, embedded or
programmed in a semiconductor product (whether recordable or not), and any work
of authorship (whether or not copyright protection . may, be obtained for it)
created, conceived, or developed by the Consultant, either solely or in
conjunction with others, during the Consulting Period, ora period that includes
a portion of the Consulting Period, that relates in any way to, or is useful in
any manner in, the business then being conducted or proposed to be conducted by
the Corporation, and any such item created by the Consultant, either solely or
in conjunction with others, following termination of the Consultant's Consulting
Arrangement with the Corporation, that is based upon or uses Confidential
Information.
6. NON-COMPETITION AND NON-INTERFERENCE
6.1 Acknowledgments by the Consultant The Consultant acknowledges that: (a)
the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character; (b) the
Corporation's business is national in scope and its products are marketed
throughout the United States and world wide; (c) the Corporation competes with
other businesses that are or could be located in any part of the United States
and world wide; (d) the provisions of this Section 6 are reasonable and
necessary to protect the Corporation's business.
6.2 Covenants of the Consultant In consideration of the acknowledgments by
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the Consultant, and in consideration of the compensation and benefits to be
paid or provided to the Consultant by the Corporation, the Consultant covenants
that he may, directly or indirectly:
(a) during the Consulting Period, except in the course of his Consulting
Arrangement hereunder, and during the Post-Consulting Period (as defined
below), engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, associated with, or in any manner connected with, lend the
Consultant's name or any similar name to, lend Consultant's credit to or render
services or advice to, any business whose products or activities compete in
whole or in part with the products or activities of the Corporation anywhere
within the United States; provided, however, that the Consultant may purchase
or otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b) whether for-the Consultant's own account or for the account of any
other person, at any time during the Consulting Period and the Post-Consulting
Period, solicit business of the same or similar type being carried on by the
Corporation, from any person known by the Consultant to be a customer of
the Corporation, whether or not the Consultant had personal contact with such
person during and by reason of the Consultant's Consulting Arrangement with the
Corporation;
(c) whether for the Consultant's own account or the account of any other
person (i) at any time during the Consulting Period and the Post-Consulting
Period, solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is or was an employee of the
Corporation at any time during the Consulting Period or in any manner induce or
attempt to induce any employee of the Corporation to terminate his Consulting
Arrangement with the Corporation; or (ii) at any time during the Consulting
Period and for three years thereafter, interfere with the Corporation's
relationship with any person, including any person who at any time during the
Consulting Period was an employee, contractor, supplier, or customer of the
Corporation; or
(d) at any time during or after the Consulting Period, disparage the
Corporation or any of its shareholders, directors, officers, employees, or
agents.
For purposes of this Section 6.2, the term "Post-Consulting Period" means
the one year period beginning on the date of termination of the Consultant's
Consulting
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Arrangement with the Corporation.
If any covenant in this Section 6.2 is held to be unreasonable, arbitrary,
or against public policy, such covenant will be considered to be divisible with
respect to scope, time, and geographic area, and such lesser scope, time, or
geographic area, or all of them, as a court of competent jurisdiction may
determine to be reasonable, not arbitrary, and notagainst public policy, will be
effective, binding, and enforceable against the Consultant. The period of time
applicable to any covenant in this Section 6.2 will be extended by the duration
of any violation by the Consultant of such covenant.
7. NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nation-ally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to the Corporation: Power Channel Inc., a Delaware corporation
00 Xxxxx Xxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
If to the Consultant: Xxxxxxxxx Xxxxx
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxx, X.X. 00000
8. BINDING EFFECT. This Agreement shall extend to, shall inure to the
benefit of and shall be binding upon all the parties hereto and upon all of
their respective heirs, successors and representatives.
9. ENTIRE AGREEMENT. This Agreement, including the agreements incorporated
by reference, contains the entire Agreement among the parties hereto with
respect to the matters contemplated hereby and supersedes all prior agreements
and undertakings between the parties with respect to such matters. This
Agreement may not be amended, modified or terminated in whole or in part, except
in writing, executed by each of the parties hereto.
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10. INDEMNIFICATION. Consultant hereby agrees to hold harmless and indemnify
Corporation from and against any and all loss, damage, expense, and cost
(including reasonable attorneys' fees incurred in connection with the same)
incurred by Corporation as a result of Consultant's breach of any covenant or
agreement made herein.
11. SPECIFIC PERFORMANCE. The Consultant acknowledges that his
obligations hereunder are unique, and that it would be extremely impracticable
to measure the resulting damages if he should default in his obligations under.
this Agreement. Accordingly, in the event of the failure by Consultant to
perform his obligations hereunder, which failure constitutes a breach hereof by
him, the Corporation may, in addition to any other available rights or remedies,
xxx in equity for specific performance and, in connection with any such suit,
the Consultant expressly waives the defense therein that the Corporation has an
adequate remedy at law.
12. SEVERABILITY. Should any part of any provision of this Agreement be
declared invalid by a court of competent jurisdiction, such decision or
determination shall not affect the validity of any remaining portion of such
provision or any other provision and the remainder of the Agreement shall remain
in full force and effect and shall be construed in all respects as if such
invalid or unenforceable provision or portion thereof were not contained herein.
In the event of a declaration of invalidity, the provision or portion thereof
declared invalid shall not necessarily be invalidated in its entirety, but shall
be observed and performed by the parties to the Agreement to the extent such
provision is valid and enforceable.
13. SECTION HEADINGS. The section headings contained herein are for
convenience of reference only and shall not be considered any part of the terms
of this Agreement.
14. CHOICE OF LAW. This Agreement shall be interpreted and performed in
accordance with the laws of the State of Florida, and the parties agree,
notwithstanding the principles of conflicts of law, that the internal laws of
the State ofFlorida shall govern and control the validity, interpretation,
performance, and enforcement of this Agreement. Venue for any action under this
Agreement shall rest in Miami-Dade County, Florida.
IN WITNESS WHEREOF, Consultant has hereunto put his hand, and the
Corporation has caused this instrument to be executed in its corporate name by
its duly authorized officer, effective as of the day and year first above
written.
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CONSULTANT: CORPORATION:
Xxxxxxxxx Xxxxx Power Chanel,Inc
Xxxxx Xxxxxxx,President
By: ___________ By:___________________
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