Exhibit 4.5
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made as of February 1,
2002, by and between GENIUS PRODUCTS, INC., having its principal offices at
00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (the "Company") and XXXXX
XXXXXXX, an individual ("Consultant").
In consideration of the mutual covenants contained herein and on the
terms and conditions set forth below, the Company and Consultant hereby agree as
follows:
1. PROVISION OF SERVICES:
(a) Consultant agrees, to the extent it deems necessary in its
discretion, to provide the services described below to the
Company and to place at the disposal of the Company its
personnel, services, and experience.
(i) Consultant will, at the Company's request, assist
with researching, drafting and preparing financial
forecasting and business plans.
(ii) Consultant will, at the Company's request, provide
with human resources procurement advisory services
for employees, board members, accountants, law firms,
and other related entities.
(iii) Consultant will, at the Company's request, advise on
intellectual property protection, technology
transfers, licensing, and joint ventures.
2. BASE COMPENSATION:
(a) The Company agrees to issue to Consultant a five (5) year
common stock option (the "Option"), in the form attached
hereto as Exhibit A, to purchase up to sixty-five thousand
(65,000) shares of the Company's common stock.
(b) The Company shall also issue Consultant forty five thousand
(45,000) shares of their common stock with a Securities and
Exchange Commission Form S-8 filing as a means of registering
said securities. The Company shall use its best efforts to
effect such a registration and deliver to Consultant a
certificate from their transfer agent as soon as reasonably
possible.
3. LIABILITY:
(a) In rendering services to the Company as herein provided,
neither Consultant, nor any member, manager, officer, employee
or agent thereof shall be liable to the Company for errors in
judgment or for anything except willful malfeasance, reckless
disregard or bad faith in the performance of its duties under
this Agreement. Consultant shall not be liable for any loss
suffered by the Company
by reasons of the Company's action or non-action on the basis
of any advice, recommendation or approval of Consultant or its
members, managers, officers, employees or agents. In no event
shall either party be liable for any punitive, incidental or
consequential damages to the other party, its stockholders,
creditors, or any other person or entity, even if advised of
the possibility thereof.
(b) It is further understood and agreed that Consultant may rely
upon the information furnished to Consultant by the Company.
The Company represents, warrants and covenants that such
information will be accurate and reliable in all material
respects. The Company represents, warrants and covenants that
it has not failed, and shall not fail, to disclose any
material fact or information to Consultant.
4. OTHER ACTIVITIES OF CONSULTANT: The Company recognizes that Consultant
now renders and may continue to render management and other services to
other companies which may or may not have policies and conduct
activities similar to those of the Company. Consultant shall be free to
render such advice and other services and the Company hereby consents
thereto. Consultant shall not be required to devote its full time and
attention to the performance of its duties under this Agreement, but
shall devote only so much of its time and attention as it deems
necessary for such purposes in its sole discretion.
5. CONTROL: Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Certificate of
Incorporation, By-laws, any applicable statute, rule (as defined
herein), or any Rules of any Regulators, or to deprive the Company's
Board of Directors of its responsibility for any control of the conduct
of its affairs.
6. TERM: The term of this Agreement shall be for a period of twelve (12)
months.
7. CONFIDENTIALITY: Consultant and the Company each agree to provide
reasonable security measures to keep information of the other party
confidential where release may be detrimental to such party's business
interests ("Confidential Information"). Information shall only be
deemed Confidential Information if disclosed in writing to the other
party and clearly labeled as Confidential Information. Consultant and
the Company shall each require their employees, agents, affiliates,
subcontractors, other licensees, and others who will have access to
Confidential Information through Consultant and the Company, as the
case may be, to enter into appropriate non-disclosure agreements
requiring the confidentiality contemplated by this Agreement. Each of
Consultant and the Company agree that it will not, either during the
term of this Agreement or at any time thereafter, disclose, use or make
known for its or another's benefit, any Confidential Information
acquired or used by it hereunder. Confidential Information shall not
include any information that is or becomes generally available to the
public other than as a result of a disclosure by the party under a duty
of confidentiality, or its representatives, or which is required by law
to be disclosed by the party under a duty of confidentiality.
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8. MISCELLANEOUS PROVISIONS:
(a) AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented only by written agreement between
Consultant and the Company.
(b) WAIVER OF COMPLIANCE. Any failure of Consultant, on the one
hand, or the Company, on the other, to comply with any
obligation, agreement or condition herein must be expressly
waived in writing, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
(c) COMPLIANCE WITH REGULATORY AGENCIES. Each party agrees that
all actions, direct or indirect, taken by it and its
respective agents, employees and affiliates in connection with
the Agreement shall conform to all applicable Federal and
State securities laws, and the applicable rules and
regulations of the SEC or any self-governing body
(collectively "Rules") which may have jurisdiction over the
party taking such actions (collectively "Regulators").
(d) NOTICES. Any notices to be given hereunder by any party to the
other may be effected by personal delivery in writing or by
mail, registered or certified, postage prepaid, with return
receipt requested. Mailed notices shall be addressed to the
signatory of this Agreement at the addresses appearing in the
introductory paragraph hereof, but any party may change its
address by written notice to the other party. Notices
delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated three (3)
days after mailing.
(e) ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Neither this Agreement nor any right, interests or obligations
hereunder may be assigned by any party hereto without the
prior written consent of the other party.
(f) DELEGATION. Neither party shall delegate the performance of
its duties under this Agreement without the prior written
consent of the other party.
(g) PUBLICITY. Neither party shall make or issue, or cause to be
made or issued, any announcement or written statement
concerning this Agreement without the prior consent of the
other party. This provision shall not apply, however, to any
announcement or written statement required to be made by law,
pursuant to Rules, or by any Regulators.
(h) GOVERNING LAW. This Agreement and the legal relations among
the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York without
regard to its conflicts of laws doctrines. The parties agree
that if action is instituted to enforce or interpret any
provision of this Agreement, the jurisdiction and venue shall
be in the state and/or federal courts located in Monroe
County, State of New York.
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(i) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument and may be executed by facsimile.
(j) HEADINGS. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part
hereto or affect in any way the meaning or interpretation of
this Agreement.
(k) ENTIRE AGREEMENT. This Agreement, including Exhibit A annexed
hereto, sets forth the entire Agreement and understanding the
parties hereto in respect of the subject matter contained
herein, and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written.
(l) THIRD PARTIES. Nothing herein expressed or implied is intended
or shall be construed to confer upon or give to any person or
corporation other than the parties hereto and their successors
or assignees, any rights or remedies under or by reason of
this Agreement.
(m) SURVIVABILITY. If any part of this Agreement is found, or
deemed by a binding arbitration to be invalid or
unenforceable, that part shall be severed from the remainder
of this Agreement.
(n) RETURN OF INFORMATION. Each party shall keep a record of the
location where all Confidential Information furnished or
created by the other party is located. Upon termination of the
Agreement, all copies of the Confidential Information of the
other party, including analyses, compilations, forecasts,
studies or other documents will be returned immediately upon
the written request therefore. That portion of the
Confidential Information which consists of analyses,
compilations, forecasts, studies or other documents prepared
by Consultant or its representatives will continue to be held
by Consultant and kept confidential and subject to the terms
of this Agreement.
(o) RELATIONSHIP OF THE PARTIES. Nothing contained in this
Agreement shall be deemed to cause either party to become the
partner of the other, the agent or legal representative of the
other, nor create any fiduciary relationship between them. It
is not the intention of the parties to create nor shall this
Agreement be construed to create any commercial relationship
such as, but not limited to, a joint venture or a partnership.
Neither party shall have any authority to act for or to assume
any obligation or responsibility on behalf of the other party.
Each party shall be responsible only for its obligations as
provided herein.
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9. ARBITRATION: The parties hereto agree to submit any dispute arising
hereunder to binding arbitration in accordance with the rules of the
American Arbitration Association ("AAA"). With respect to the
arbitration of any dispute hereunder, the undersigned hereby
acknowledge and agree that:
(a) Arbitration shall be final and binding on the parties.
(b) The parties waive their right to seek remedy in court,
including their right to a jury trial.
(c) Pre-arbitration discovery is generally more limited and
different from court proceedings.
(d) An arbitrator's award is not required to include factual
findings or legal reasoning and any party's right to appeal,
or to seek modification of a ruling by the arbitrators is
strictly limited.
(e) Any arbitration hereunder is specifically intended to include
any and all statutory claims, which might be asserted by any
party.
(f) All disputes, controversies, or differences between
Consultant, the Company, or any of their members, managers,
officers, directors, legal representatives, attorneys,
accountants, agents or employees, or any customer or other
person or entity, arising out of, in connection with or as a
result of this Agreement, shall also be resolved through
arbitration rather than through litigation.
(g) Each party hereby agrees to submit any dispute arising
hereunder within five (5) days after receiving a written
request to do so from the other party.
(h) If any party fails to submit any dispute to arbitration on
request, then the requesting party may itself commence an
arbitration proceeding.
(i) Any hearing scheduled after arbitration is initiated shall
take place in Monroe County, State of New York.
(j) If either party shall institute a court proceeding to resist
arbitration and be unsuccessful in resisting arbitration or
shall unsuccessfully contest the jurisdiction of an
arbitration forum located in Monroe County, New York, over any
matter which is the subject of this Agreement, the prevailing
party shall be entitled to recover from the losing party its
legal fees and any out-of-pocket expenses incurred in
connection with the defense of such legal proceeding or its
efforts to enforce its rights to arbitration as provided for
herein.
(k) Each party will sign any required paperwork reasonably
required by the AAA, at the time any dispute is submitted for
arbitration.
(l) Any decision may be filed with any court which shall have
jurisdictional venue as a basis for judgement and execution
for collection.
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In witness whereof, the parties have caused this Agreement to
be signed as of the day and year first written above.
CONSULTANT
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
GENIUS PRODUCTS INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: CEO
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