CONSULTING AGREEMENT
THIS AGREEMENT, made, entered into, and effective this 12th day of
February, 2004 (the "Effective Date"), by and between GRQ CONSULTANTS INC., a
Florida Corporation with its principal place of business at 0000 XX 00xx Xxxxxx,
Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as "Consultant"), and E. THE
MOVIE NETWORK INC., Inc. a Florida Corporation with its principal place of
business at 0000 00xx Xxxxxx , Xxxxxxxx, XX 00000 (hereinafter referred to as
"Corporation").
WITNESSETH:
WHEREAS, Consultant desires to provide such consulting services for the
Corporation, as an independent contractor, with the understanding that he shall
not be required to devote his full time to the business of the Corporation and
shall be free to pursue other personal and business interests; and
WHEREAS, the Company is desirous of retaining the Consultant for the
purpose of corporate planning.
NOW, THEREFORE, in consideration of thepremises, the mutual covenants of
the 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 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.
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1.2 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 he 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 similar benefits 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.
3.1 CONSIDERATION FOR CONSULTING SERVICES. As full consideration for
the consulting services to be provided by the Consultant during this Agreement,
the Consultant shall receive 1,500,000 restricted shares of the Company with
piggy-back registration rights on the next Registration Statement to be filed by
the Company.
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 February 11, 2005 (the "Consulting Period").
5. CONFIDENTIALITY COVENANTS.
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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:
(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 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 submits 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,
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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 rigbts, to or in such Consultant Inventions. The
Consultant covenants that he will promptly:
(i) disclose to the Corporation in writing any Consultant Invention;
(ii) assign to the Corporation or to a party designated by the
Corporation, at the Corporation's request and without additional compensation,
all of the Consultant's right to the Consultant Invention for the United States
and all foreign jurisdictions;
(iii) execute and deliver to the Corporation such applications,
assignments, and other documents as the Corporation may request in order to
apply for and obtain patents or other registrations with respect to any
Consultant Invention in the United States and any foreign jurisdictions;
(iv)sign all other papers necessary to carry out the above obligations;
and
(v) give testimony and render any other assistance in support of the
Corporation's rights to any Consultant Invention.
5.3 DISPUTES OR CONTROVERSIES. The Consultant recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel. or other third party. the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Corporation, the Consultant, and their respective attorneys and experts, who
will agree, in advance and in writing, to receive and maintain all such
information in secrecy, except as may be limited by them in writing.
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5.4 DEFINITIONS.
(a) For the purposes of this Section 5, "Confidential Information" shall
mean. any and all:
(i) trade secrets concerning the business and affairs of the Corporation,
product specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current and planned.
manufacturing or distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies, business plans,
computer software and programs (including object code 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, or a period that
includes a portion of the Consulting Period, that relates in any way to, or is
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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 xxx 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 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;
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(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 anytime 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 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 not against
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: E. The Movie Network Inc.
0000 00xx Xx.
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx, CEO
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If to the Consultant: GRQ Consultants Inc. Xxxxx Xxxxx, President
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 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.
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 spcrifir. 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 ofsnch
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 he 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.
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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 of Florida 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 bas caused this instrument to be executed in its corporate name by
its duly authorized officer, all as of the day and year first above written.
CONSULTANT: CORPORATION:
GRQ Consultants Inc. E. The Movie Network Inc.
Xxxxx Xxxxx, President Jacob Hershovits, CEO
By: /s/ Xxxxx Xxxxx By: /s/ Jacob Hershovits
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