CONSULTING AGREEMENT
EXHIBIT
10.2
This
CONSULTING AGREEMENT dated as of March 1, 2008 (this "Agreement"), by and
between Xxxxxxx Enterprises International, Inc. a California corporation d/b/a
"Marani® Spirits"
(the "Company"), and Xxxxxx Xxxxxxx, (the "Consultant").
WHEREAS,
the Company is engaged in, among other things, the business of distilling,
marketing, selling and bottling vodka, other spirits and wine throughout the
world; and
WHEREAS,
the Consultant involved and has contacts in Texas and Mexico with distributors
of vodka, other spirits and wines in Texas and Mexico (the "Territory");
and
WHEREAS,
among other things, the Company is capable of introducing the Company to
potential distributors of the Company's products in the Territory;
and
WHEREAS,
the Company desires to retain the Consultant to provide the Services ( as
hereinafter defined) to the Company , and the Consultant desires to provide its
Services to the Company, upon the terms, provisions and conditions set forth in
this Agreement.
NOW,
THEREFORE, in consideration of these premises and other good and valuable
consideration, the receipt and legal sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Retention of
Consultant.
(a) The
Company hereby retains the Consultant to provide the Services to the Company
during the Consulting Period (as hereinafter defined) and the Consultant hereby
agrees to provide the Services to the Company during the Consulting Period, all
upon the terms, provisions and conditions contained in this
Agreement.
(b) The
retention of the Consultant hereunder is on a non-exclusive basis, which means
that, subject to Section 10(b) hereof, (i) the Consultant may provide consulting
services in the Territory to other businesses whose products may be competitive with the
Company's products; (ii) the Company may engage other entities to provide
services to the Company in the Territory that are substantially similar to the
Services; and (iii) the Company may engage in the sale and distribution of its
products in the Territory on a direct basis.
(c) If as a
result of the Services, the Company enters into a distribution agreement for
Mexico with a distributor acceptable to the Company, in its sole discretion, on
terms and conditions acceptable to the Company, in its sole discretion
(including, without limitation, having guaranteed annual purchases by the
distributor), then the Company in good faith will consider making the rights
granted hereunder with respect to Mexico excusive for the then remainder of the
Consulting Period.
2.
Services.
(a) Definition of
Services. For purposes hereof, the term "Services" shall mean introducing
the Company and its management to various entities located in the Territory (the
"Consultant's Contacts") who are capable of acting as a distributor of the
Company's products in the Territory and, if requested by the Company, assisting
the Company with any negotiations between the Company and the Consultant's
Contacts. Except as expressly provided in the immediately proceeding sentence,
the Consultant shall not provide any other consulting services to the Company
including, without limitation, any services relating the capital raising,
financing or advice regarding mergers and acquisitions.
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(b) In
performing the Services, the Consultant will interface with, and follow the
reasonable directions of, the Company's Chief Executive Officer or any other
officer or representative of the Company designated in writing by the Company's
Chief Executive Officer. The Consultant will perform the Services lawfully and
faithfully, to the best of its ability and in accordance with the highest
ethical standards. The Consultant shall comply with, and will not violate, any
applicable law, rule or regulation, domestic or foreign, in connection with the
performance of the Services. In performing the Services the Consultant shall
follow the directions of the Company and shall not introduce the Company to any
Consultant Contact unless specifically authorized by the Company.
(c) The
Consultant acknowledges and agrees that whether the Company engages in any
transaction in the Territory through or with any Consultant Contact shall be a
decision made by the Company in its sole and absolute discretion.
3. Consulting
Period. The term of the retention and engagement of the
Consultant
under
this Agreement shall commence on the date hereof and shall continue for a period
of twelve (12) months ending on the one (1) year anniversary date of this
Agreement, unless terminated earlier as provided for herein, and as it may be
extended as provided for in the immediately following sentence (the -Consulting
Period"). The Consulting Period may be extended for successive periods of twelve
(12) months on the anniversary date of this Agreement upon the mutual written
agreement of the Company and the Consultant.
4. Compensation.
(a) As full
considerations for the performance of the Services, the Consultant shall be
entitled to earn a consulting fee (the "Consulting Fee") of $14,400.00 per
month.
(b) The
Consulting Fee shall be payable either with cash payments or common stock at the
discretion of Company.
(c) The
Consultant shall be responsible for the payment of all taxes, levies and similar
charges (whether federal, state or local, domestic or foreign) which are payable
in respect of the compensation provided for in this Section 4, and the
Consultant shall indemnify the Company and hold the Company harmless with
respect to the payment of any and all such taxes, levies and similar
charges.
5. Expense
Reimbursement. Unless approved, in writing by the Company prior to the
incurrence thereof, the Consultant shall not be entitled to reimbursement from
the Company for any costs or expenses incurred by the Consultant in connection
with this Agreement or providing the Services to the Company, and the Consultant
shall be responsible for all such costs and expenses.
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6. Marketing Support. During the Consulting Period,
the Company shall expend such amounts on marketing and advertising in the
Territory, as the Company in its discretion considers reasonable to support the
development of the identity and image of its products in the Territory. Prior to
engaging in any marketing or advertising activities in any country in the
Territory, the Company will discuss the scope of such activities with the
Consultant in order to obtain the advice of the Consultant with respect to the
proposed activities; provided that any
decision with respect to such activities will be made by the Company in its sole
and absolute discretion.
7. Relationship of the
Parties. This Agreement is between two (2) independent contracting
entities and nothing herein shall constitute or create an employer-employee
relationship, a partnership, a joint venture or any other joint enterprise or
agent-principal relationship between the parties. Neither party is the fiduciary
of the other party. The Consultant will not have the right to obligate or
legally bind the Company and will not hold itself out to any third party or to
make any representation to any third party that the Consultant has the right to
do so.
8. Termination. The Company may terminate this
Agreement at any time for Cause (as hereinafter defined) upon written notice to
the Consultant. For purposes of this Agreement, the term "Cause" (i) the failure
or refusal of the Consultant to render the Services to the Company or the
failure of the Consultant to follow the Company's directives in connection
therewith; (ii) disloyalty, gross negligence, dishonesty or breach of fiduciary
duty by the Consultant or any of its directors, members, managers, officers or
employees; (iii) commission of an act of fraud, theft, misappropriation,
embezzlement or disregard of the rules or regulations the Securities and
Exchange Commission or commission of any other action which is damaging the
Company or its reputation; (iv) any act of moral turpitude which materially
adversely affects any ability to perform the Services or reputation of the
Company; (v) commission of any violation of any law or regulation related to the
performance of the Services; or (vi) the cessation of business, liquidation,
bankruptcy or insolvency of the Consultant; or (vii) a -change of
control" of the Consultant such that the majority owners of the Consultant as of
the date of this Agreement no longer own a majority of the outstanding voting
equity of the Consultant following the -change of
control" transaction.
9. Obligations of the Company
upon Termination. Upon termination of the retention of the Consultant
pursuant to Section 8 (vi) hereof, the Company shall pay the Consulting Fee to
the extent earned prior to such termination for a period of five (5) years from
the date of termination. In all other instances, if the retention of the
Consultant is terminated for Cause pursuant to any other provision of Section 8
hereof, the Company's obligation to pay any further Consulting Fees to the
Consultant shall immediately cease.
10. Confidentiality Covenant and
other Restrictive Covenants Applicable to Consultant.
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(a) During
the Consulting Period and thereafter, the Consultant shall not, and shall cause
its affiliates not to, directly or indirectly, under any circumstance: (i)
disclose any Confidential Information (as such term is hereinafter defined);
(ii) act so as to impair the confidential or proprietary nature of any such
Confidential Information; or (iii) offer or agree to, or cause or assist in the
inception or continuation of, any such disclosure or impairment of any such
Confidential Information or trade secret, unless consented to in writing by the
Company. All Confidential Information is and shall remain the sole and exclusive
property of the Company. For purposes hereof, the term "Confidential
Information" shall mean any and all of the following (regardless of the medium
in which maintained or stored): confidential or proprietary information or
material not in the public domain about or relating to any aspect of the
business, activities, plans. prospects or strategies (whether or not pursued) of
the Company or any of its subsidiaries including, without limitation, financial
information and projections, research and development plans or projects; data
and reports; computer materials such as programs, instructions, source codes,
object codes and printouts; formulas; recipes; product-testing information;
business improvements; processes; manufacturing distillery processes;
intellectual property strategies, patent strategies licensing strategies.
marketing and selling strategies; strategic business plans (whether or not
pursued); budgets; licenses; pricing, pricing strategies and cost data;
information regarding the skills and compensation of employees; the identities
of customers and potential customers; forecasts, marketing techniques; the
identities of suppliers, vendors and contractors; the terms of contracts or
agreements; and any other information mentioned or data which is not public
and/or of a confidential nature relating to any aspect of the business of the
Company. In the event that the Consultant or any of its affiliates becomes
legally required to disclose any Confidential Information, such party, to the
extent practicable, will provide the Company with prior written notice thereof
so that the Company may seek a protective order or other appropriate remedy or
waive compliance with the provisions of this Section 10(a) to permit a
particular disclosure. In the event that such protective order or other remedy
is not obtained, or that the Company waives compliance with the provisions of
this Section 10 (a) to permit a particular disclosure, the applicable party
shall only disclose that portion of the Confidential Information which the
applicable party is advised by such party's legal counsel is legally required to
be disclosed. If required, the applicable party will, at the Company's cost and
expense, cooperate with the efforts of the Company to obtain a protective order
or other activities intended to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information disclosed. For purpose
hereof Confidential Information shall not include any information (i) that is
publicly known at the time of its disclosure other than through a breach of this
Agreement by the Consultant; (ii) is lawfully received by the Consultant from a
third party not bound by a confidential obligation to the Company or who does
not have a fiduciary or similar obligation to the Company; or (iii) was already
known by the Consultant prior to its disclosure, as evidence by the Consultant's
books and records.
(b) For a
period of time as long as the Consultant is being paid the Consulting Fee
hereunder, the Consultant shall not, and shall cause its affiliates not to,
engage, directly or indirectly (whether as an member, manager, officer,
director, employee, consultant, stockholder, owner, lender, investor or any
other capacity) in the business of representing any business or
entity in the Territory whose primary business involves the manufacturing, sale
or marketing or distribution of vodka as its principal product.
(c) During
the Consulting Period and thereafter, the Consultant will not and will cause its
affiliates not to, directly or indirectly, interfere with any business
relationship between the Company and any of its distributors, customers,
suppliers. agents or any other person or entity doing business with the Company
or take any action which could reasonably be expected to result such entity to
ceasing doing business with the Company or to reducing the amount of business
that it conducts with the Company.
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(d) The
Consultant acknowledges that if the Consultant or any of its affiliates should
breach or threaten to breach any provision of Sections 10(a) through 10(c)
hereof the damages to the Company may be substantial and difficult to ascertain,
and monetary damages will not afford the Company an adequate remedy. Therefore,
if any of the provisions of Sections I 0(a) through 10(c) hereof are violated or
breached or threatened to be violated or breached. in whole or in part. the
Company shall be entitled to seek specific performance and injunctive relief
(without being required to post a bond or other security and without being in
required to establish irreparable harm), without prejudice to all other rights
any remedies the Company may have at law, in equity or otherwise, all of which
shall be cumulative, and which may be exercised concurrently. In addition,
should the Consultant breach any of the provisions of Sections 10(a) through
10(c) hereof, the Company shall be the right to immediately cease making any
further payments of the Consulting Fee to the Consultant.
11. Return of
Information. Upon the termination or expiration of the Consulting Period,
the Consultant will promptly deliver to the Company, or at the Company's written
instruction, destroy, all documents, data, drawings, manuals, letters, notes,
reports, electronic mail, recordings, and copies thereof, of or pertaining to
the Company and its business and/or which contain or are based upon any
Confidential Information which is in the Consultant's possession or control or
the possession or control of any of the Consultant's affiliates. Nothing herein
shall constitute a license to the Consultant of any property, assets or
information belonging to the Company
12. Consultant Representations
and Warranties. The Consultanthereby represents and warrants
to the Company as follows; (a) the Consultant has the power and authority to
enter into this Agreement and has authorized the execution, delivery and
performance of this Agreement by the Consultant; (b) this Agreement constitutes
its legal, valid and binding obligation of the Consultant, enforceable against
the Consultant in accordance with its terms; (c) the execution, delivery and
performance of this Agreement by the Consultant shall not breach, violate,
contravene, or cause a default under the constituent documents of the
Consultant, any agreement or contract to which it is a party or bound, or any
law or regulation applicable to it or any order, judgment or decree to which it
is bound or otherwise subject; and (d) in connection with the performance of the
Services hereunder, it shall not use or disclose any of the proprietary or
confidential information of any third party or violate any confidentiality or
similar obligation that it may owe to any third party.
13. Press Releases. The
Company and the Consultant shall not issue any press release or other
communication with respect to this Agreement (and Company's engagement of
Consultant) or the transactions contemplated hereby, except to the extent
required by applicable law or regulation, without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed. If
the Company is required pursuant to applicable law or regulation to issue a
press release it will give the Consultant a reasonable opportunity to comment
thereon before issuing the press release, subject to time limitations that may
be imposed by the applicable law or regulation.
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14. Amendment. This
Agreement may not be modified, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto.
15. Entire Agreement.
This Agreement contains the entire understanding and agreement of the parties
relating to the subject matter hereof and it supersedes all prior and/or
contemporaneous understandings and agreements of any kind and nature (whether
written or oral) among the parties with respect to such subject matter, all of
which are merged herein.
16. Waiver. Any waiver by
a party, of any breach of or failure to comply with any term, provision or
condition of this Agreement by the other party hereto shall not be construed as,
or constitute, a continuing waiver of such term, provision or condition, or a
waiver of any other breach of, or failure to comply with, any other term,
provision or condition of this Agreement, any such waiver to be limited to the
specific matter and instance for which it is given. No waiver of any such breach
or failure or of any term, provision or condition of this Agreement shall be
effective unless in a written instrument signed by the party granting the
waiver. No failure or delay by either party to enforce or exercise its rights
hereunder shall be deemed a waiver hereof, nor shall any single or partial
exercise of any such right or any abandonment or discontinuance of steps to
enforce such rights, preclude any other or further exercise thereof, at any time
whatsoever, or the exercise of any other right.
17. Indemnification.The
Consultant shall indemnify the Company and its present and future directors,
officers. employees, agents, and attorneys and shall hold each of them harmless,
from and against any damages, liabilities, losses, penalties, claims, judgments,
costs (including, without limitation, any costs and expenses incurred in
connection with investigating any claim) and expenses (including, without
limitation. reasonable attorney's fees and expenses) which arises out of, is
based upon on in any way relates to a breach of any term or provisions of this
Agreement by the Consultant or the failure of the Consultant to observe or
perform any of its obligations hereunder.
18. Notices. All notices,
demands, consents, requests, instructions and other communications to be given
or delivered or permitted under or by reason of the provisions of this Agreement
or in connection with the transactions contemplated hereby shall be in writing
and shall be deemed to be delivered and received by the intended recipient as
follows: (a) if personally delivered, on the business day of such delivery (as
evidenced by the receipt of the personal delivery service). (b) if mailed
certified or registered mail return receipt requested (with all costs prepaid),
four (4) business days after being mailed. (c) if delivered by a recognized
overnight courier service of recognized standing (with all charges having been
prepaid), on the business day of such delivery (as evidenced by the receipt of
the overnight courier service), on (d) by facsimile transmission on the business
day sent. if received before 5:00 p.m. in the time zone of the intended
recipient. or on the next business day if received thereafter (with receipt
confirmed by mechanically by the recipients fax machine) of the If any notice,
demand, consent, request, instruction or other communication cannot be delivered
because of a changed address of which no notice was given (in accordance with
this Section 18), or the refusal to accept same, the notice, demand, consent,
request. instruction or other communication shall be deemed received on the
second business day the notice is sent (as evidenced by a sworn affidavit of the
sender). All such notices, demands, consents, requests, instructions and other
communications will be sent to the following addresses as
applicable:
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If to the
Company:
Xxxxxxx
Enterprises. Inc.
00000
Xxxxxx Xxxxxx, Xxxxx 0-X
Xxxxx
Xxxxxxxxx, XX 00000
Attention:
Xx. Xxxxxxx Xxxxxx
Chief
Executive Officer
Facsimile
No.: (818) 503-447
If to the
Consultant:
Xxxxxx
Xxxxxxx.
0000
Xxxxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attention:
Mr. Xxx Xxxxxxx
Fax No:
(000)-000-0000
Or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 18.
19. Governing Law;
Jurisdiction.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of California applicable to agreements made and to be performed in that
State. without regard to any of its principles of conflicts of laws or other
laws which would result in the application of the laws of another
jurisdiction.
(b) Jurisdiction. Each of the parties
unconditionally and irrevocably consents to the exclusive jurisdiction of the
courts of the State of California, located in Los Angles county and the Federal
District Court for the Central District of California with respect to any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and each of the parties hereby unconditionally
and irrevocably waives any objection to venue in any such court, and agrees that
service of any summons, complaint, notice or other process relating to such
suit, action or other proceeding may be effected in the manner provided in
Section 18 of this Agreement. Each of the parties hereby unconditionally and
irrevocably waives the right to a trial by jury in any action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The prevailing party in any such action, suit or proceeding
shall be entitled to be reimbursed for its reasonable out of pocket costs and
expenses incurred in connection thereafter, including, without limitation,
reasonable attorneys' fees and expenses.
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20. Severability. Should
any provision of this Agreement be held to be invalid, illegal or unenforceable
in any jurisdiction by a court of competent jurisdiction, that holding shall be
effective only to the specific provision, the extent of such invalidity,
illegally or unenforceability. without invalidating or rendering invalid,
illegal or unenforceable the remaining provisions hereof, and any such
invalidity, illegally or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. It
is the intent of the parties that this Agreement shall be fully enforced to the
fullest extent permitted by applicable law and accordingly any court of
complaint jurisdiction may modify the specific invalid, illegal, or
unenforceable provision to give effect to the intent of the
parties.
21. Assignment. This
Agreement and the rights and obligations hereunder may not be assigned by any
party hereto without the prior written consent of the other parties hereby:
provided that the Company may assign this agreement to any person or entity that
purchases all or substantially all of the assets of the Company or that
purchases all of the stock of the Company. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors (whether by merger, consolidation, recapitalization or other similar
transaction) and permitted assigns. The Consultant should not delegate its
duties in respect of the Services to any third party. Nothing herein is intended
or shall be construed to confer upon or give to any person. any rights,
privileges or remedies under or by reason of this Agreement. except pursuant to
this Section 21.
22. Drafting History. In
resolving any dispute under, or construing any provision in under, this
Agreement, there shall be no presumption made or inference drawn (a) because the
attorneys for one of the parties drafted such provision of this Agreement, (b)
because of the drafting history of the Agreement, or (c) because of the
inclusion of a provision not contained in a prior draft or the deletion of a
provision contained in a prior draft. The parties acknowledge and agree that
this Agreement was negotiated and drafted with each party being represented by
counsel of its choice and with each party having an equal opportunity to
participate in the drafting of the provisions hereof.
23. Headings. The section
headings contained in this Agreement are inserted for reference purposes only
and shall not affect in any way the meaning, construction or interpretation of
this Agreement. Any reference to the masculine, feminine, or neuter gender shall
be a reference to such other gender as is appropriate. References to the
singular shall include the plural and vice versa.
24. Counterparts. This
Agreement may be executed in one or more counterparts, each of which, when takes
together, shall constitute one and the same agreement. This Agreement may be
executed by facsimile signature which shall constitute a legal and valid
signature for purposes hereof.
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IN
WITNESS WHEREOF, each of the parties has caused on of its daily authorized
officers or managers, as the case may be, to execute this Agreement as of the
date first above written.
MARANI
ENTERPRISES INTERNATIONAL, INC.
By: s/s
Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Chief Executive Officer
CONSULTANT
.
s/s Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
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