CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
entered
into as of this 1st
day of
January, 2006 between DIAMOND
DISCOVERIES INTERNATIONAL CORP.,
a
Delaware corporation (the “Company”) and Xxxxxxx X. Xxxxxxxx
(“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain services for the
Company, and Consultant desires to provide the same to Company.
NOW,
THEREFORE, in consideration of the premises and the mutual promises set forth
herein, the parties agree as follows:
1. For
a
said period of one (1) year beginning on January 1, 2006 (the “Consulting
Period”) Consultant shall serve as a consultant to the Company on matters
pertaining to accounting and internal controls. Consultant’s services shall
include consultation with and advice to directors and officers of the
Company.
2. During
the Consulting Period, the Company shall be entitled to Consultant’s services
for reasonable times when and to the extent requested by, and subject to the
direction of, the Chairman and Chief Executive Officer of the
Company.
3. Consultant’s
services shall be rendered from his/her office, unless by mutual agreement
from
time to time arrangements are made for those services to be rendered elsewhere.
Reasonable travel and living expenses necessarily incurred by Consultant to
render services at locations other than his/her office shall be reimbursed
by
the Company promptly upon receipt of proper statements with regard to the nature
and amount of those expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month of the Consulting Period during which
any of those expenses are incurred.
4. Consultant
shall have no authority to bind Company by or to any obligation, agreement,
promise or representation without first obtaining the written approval of the
Chief Executive Officer. Consultant shall not incur any liability on behalf
of
Company or in any way represent or bind Company in any manner or thing
whatsoever and nothing herein shall be deemed to constitute either party the
agent or legal representative of the other. Consultant shall not have the
authority and shall not represent that he has authority to approve check
requests or to order, purchase or otherwise obtain any equipment, supplies,
services or other materials on behalf of Company.
5. In
consideration of Consultant’s entering into this Agreement, the Company has
agreed to compensate the Consultant by issuing 1,250,000 shares of the Company’s
common stock.
The
Company intends to register the shares issued to Consultant by February 15,
2006
on Form S-8.
6. Consultant
understands and agrees that Consultant is an independent contractor rather
than
an employee or agent of Company. Consultant hereby warrants and represents
that
he has all necessary licenses, visas, work permits or other government approvals
required to perform the Services.
7. Consultant
shall be responsible for withholding, paying, and reporting any and all required
federal, state or local income, employment and other taxes and charges.
Consultant understands and agrees that Company will make no deduction from
payments to Consultant for federal or state tax withholdings, social security,
unemployment, workers’ compensation or disability insurance.
8. Consultant
understands and agrees it is not eligible for dental, medical, disability,
hospitalization, life insurance, vacation, travel benefits and other employee
welfare and benefit programs maintained by Company based on the Services or
otherwise. In addition, Consultant shall not be eligible to participate in
or
accrue benefits under other programs which are available to employees of
Company.
9. Proprietary
Information. The Company has invested and will continue to invest considerable
effort and expense in the development of technology and other Proprietary
Information. The Company has taken steps and will continue to take all
reasonable steps necessary to protect the secrecy of Proprietary Information
of
the Company. Consultant acknowledges and agrees that Consultant’s position with
the Company will afford Consultant an opportunity to access Proprietary
Information of the Company. The misappropriation, unauthorized use, or
disclosure of Proprietary Information would cause irreparable harm to the
Company. Consultant agrees to hold Proprietary Information in confidence for
the
benefit of the Company. Consultant shall not directly or indirectly use or
disclose, except as authorized in writing by the Company, any Proprietary
Information (whether or not developed or compiled by Consultant) for any purpose
not directly related to the Company’s Business, and then only for the benefit of
the Company. Consultant’s obligations as set forth in this paragraph 9 shall
remain in effect with respect to Trade Secrets, for so long as the Company
is
entitled to protection of rights in such Trade Secrets under applicable law,
and
with respect to Confidential Information for the duration of engagement and
for
a period of three (3) years after termination of engagement.
10. Assignment
Of Rights. Consultant acknowledges and agrees that all Work Product and all
physical embodiments thereof produced by the Consultant during the period of
Consultant’s engagement by the Company shall be considered “work for hire” as
such term is defined in 17 U.S.C. Section 101, the ownership and copyright
of which shall be vested solely in the Company. If any of the Work Product
may not, by operation of law, be considered work made for hire by Consultant
for
the Company, or if ownership of all right, title, and interest of the
intellectual property rights therein shall not otherwise vest exclusively in
the
Company, Consultant hereby assigns to the Company, and upon the future creation
thereof automatically assigns to Company, without further consideration, the
ownership of all Work Product. Consultant agrees (a) to disclose immediately
to
the Company all Proprietary Information developed in whole or part by Consultant
during the term of Consultant’s engagement by the Company; (b) to comply with
all record-keeping requirements of the Company; and (c) at the request and
expense of the Company, to do all things and sign all documents or instruments
reasonably necessary in the opinion of the Company to eliminate any ambiguity
as
to the rights of the Company in such Proprietary Information including, without
limitation, providing to the Company’s employees full cooperation in any
litigation or other proceeding to establish, protect, or obtain such
rights. In the event that the Company is unable for any reason whatsoever
to secure the Consultant’s signature to any document reasonably necessary or
appropriate for any of the foregoing purposes (including without limitation,
renewals, extensions, continuations, divisions, or continuations in part),
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Consultant’s agent and attorney-in-fact to act
for and on behalf of Consultant for the limited purpose of executing and filing
any such document and doing all other lawfully permitted acts to accomplish
the
foregoing purposes with the same legal force and effect as if executed by
Consultant. This appointment is coupled with an interest and shall survive
the
death or disability of Consultant. Upon request by the Company, and in any
event
upon termination of Consultant’s engagement, Consultant shall promptly deliver
to the Company all property belonging to the Company including, without
limitation, all Work Product and Proprietary Information (and all embodiments
thereof) then in Consultant’s custody, control, or possession, as a condition
precedent to any remuneration payment due to Consultant.
11. Defintions.
The
following capitalized terms are used in this Agreement with the meanings
thereafter acscribed:
“Confidential
Information”
means
information, other than Trade Secrets, that is of value to its owner and is
treated by its owner as confidential, including, but not limited to: (a) any
useful process, formula, composition of matter, or device which (i) is new
or which Consultant has a reasonable basis to believe may be new, (ii) is
being used or studied by the Company and is not described in a patent, and
(iii) is not readily ascertainable from inspection of any commercially
available product of the Company; (b) any engineering, technical, or product
specifications of any current or future product of the Company; (c) any computer
software (whether in source or object code) and all flow charts, algorithms,
coding sheets, design concepts, test data, or documentation related thereto,
whether or not copyrighted, patented, or patentable; (d) information concerning
the Company’s pricing strategies, licensing strategies, and advertising
campaigns; (e) information regarding Company executives, employees, personnel
assignments, customers, and suppliers; (f) Company financial information; (g)
Company training, policy, and procedure manuals; (h) the terms and conditions
of
this Agreement; and (i) any data or information defined herein as a Trade
Secret, but which is determined by a court of competent jurisdiction not to
rise
to be a trade secret under applicable law.
“Proprietary
Information” means, collectively, Confidential Information and Trade
Secrets.
“Trade
Secrets” means information, without regard to form, including, but not limited
to, technical or nontechnical data, a formula, a pattern, a compilation, a
program, a device, a method, a technique, a drawing, a process, financial data,
financial plans, product plans, or a list of actual or potential customers
or
suppliers which is not commonly known by or available to the public and which
information: (a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; and
(b)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
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“Works”
means inventions (whether or not patentable), discoveries, improvements,
designs, techniques, data and databases, materials, documentation, computer
programs, and all other works of authorship and all embodiments thereof, created
or developed in whole or in part by Consultant, including all worldwide rights
therein under patent, copyright, Trade Secret, Confidential Information, or
other property right.
“Work
Product” means
all
Works that have been produced or created during the term of this Agreement,
or
prior to the date of this Agreement if the Company paid for the development
of
such product. Notwithstanding the foregoing, “Work Product” shall not include
Works developed entirely on Consultant's own time without using the Company's
equipment, supplies, facilities, or Proprietary Information, except for those
inventions that either (i) related at the time of conception or reduction to
practice to the Company's business or anticipated research or development of
the
Company, or (ii) result from any work performed by Consultant for the
Company.
12. This
Agreement may be terminated by Company or Consultant without cause in their
sole
discretion by providing the other party with at least thirty (30) calendar
days’
advance written notice (the “Notice Period”); provided that, if Consultant shall
choose to terminate this Agreement prior to the expiration of its term, the
Company shall not be obligated to make any payments due thereafter.
13. It
is
understood and agreed by the parties that the services of Consultant are unique
and personal in nature and both Consultant and Company shall not delegate or
assign all or any portion of its required performance to any other individual,
firm or entity.
14. No
waiver, amendment or modification of any provision of this Agreement shall
be
effective unless in writing and signed by both parties. No failure or delay
by
either party in exercising any right, power or remedy under this Agreement
shall
operate as a waiver of any such right, power or remedy.
15. This
Agreement shall be binding upon and inure to the benefit of the heirs,
successors, and assigns of the parties hereto.
16. Notices
hereunder shall be given in writing and will be deemed to have been given
(a) on the date delivered in person, (b) on the date indicated on the
return receipt if mailed postage prepaid, by certified or registered U.S. mail,
with return receipt requested, (c) twenty-four (24) hours after transmittal
by facsimile, if sent by 5:00 p.m. Eastern Time, on a regular business day
and confirmation of receipt thereof is reflected or obtained, or (d) if
sent by overnight courier service, on the next business day after delivery
to
the courier service (in time for and specifying next day delivery). In each
case
such notices shall be sent to the address or facsimile number set forth below.
Either party may change such address by giving (15) days written notice to
the
other party hereto.
| If to Company: | Diamond Discoveries International Corp. | |
| 000 -000 Xxxx Xxxxxx Xxxxxx | ||
| Xxxxxxxxx, XX, Xxxxxx | ||
| X0X 0X0 | ||
| Attention: Chief Executive Officer | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| If to Consultant: | Xxxxxxx X. Xxxxxxxx | |
| 0000 Xxxxx Xxxx | ||
| Xxxxxxx, XX 00000 | ||
| Telephone: | ||
| Facsimile: |
17. If
any
provision of this Agreement shall be held by a court of competent jurisdiction
to be contrary to law, the remaining provisions of this Agreement shall remain
in full force and effect.
18. This
Agreement and the Exhibits hereto constitute the entire Agreement between the
parties concerning the subject matter hereof and supersedes all prior
negotiations and discussions with respect to such subject matter. This Agreement
may be modified in writing only, signed by the parties hereto.
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19. The
remedies hereunder shall be cumulative and not alternatives; the election of
one
remedy for a breach shall not preclude pursuit of other remedies.
20. Whenever
required by the context, references herein to the singular shall include the
plural and the masculine gender shall include the feminine gender. For the
purposes of this Agreement, unless the context clearly requires otherwise,
“or”
is not exclusive and “including” shall mean “including, but not limited
to.”
21. The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the interpretation of this
Agreement.
22. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
instrument.
23. Governing
Law. This
Agreement and the rights of Company and Contractor hereunder shall be governed
by and construed in accordance with the laws of the State of New York. The
parties agree that any appropriate state court sitting in Manhattan in New
York
City or any Federal Court sitting in the Southern District of New York shall
have exclusive jurisdiction of any case or controversy arising under or in
connection with this Agreement and shall be a proper forum in which to
adjudicate such case or controversy and each party irrevocably consents to
the
jurisdiction of such courts, and irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such suit, action, or proceeding in any such court and further waives the right
to object, with respect to such suit, action, or proceeding, that such court
does not have jurisdiction over such party.
[Remainder
of page intentionally left blank]
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[Signature
page to Consulting Agreement]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
|
Name Xxxxxx X. Xxxxxxxx |
||
| Title: Chief Financial Officer | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
|
Xxxxxxx X. Xxxxxxxx |
||
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