CONSULTING AGREEMENT
EXHIBIT
10.5
This
CONSULTING AGREEMENT
dated as of June 10, 2009 (this “Agreement”), by and between Marani Brands, Inc.
a Nevada corporation (the “Company”), and Xxxxxx Xxxxxxxxx, an individual
residing in Los Angeles County. (the “Consultant”).
WHEREAS, the Company, through
its wholly owned subsidiary, Marani Spirits, Inc., 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 Company desires
to retain the Consultant provide counsel by services to the Company with respect
marketing and promotional advice to the Company with respect to its Marani®
Vodka and other distilled alcohol products, xxxxxx and wine which the Company
(the “Services”) may have the right to import during the Consulting Period (as
hereinafter defined) (the “Products”), and the Consultant desires to provide
consulting services to the Company with respect to such sales activities, 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 the Company may request during the Consulting
Period, 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. Accordingly,
the Company may and will engage other entities and persons to provide services
to the Company that are substantially similar to the Services.
2. Services.
(a) In
performing the Services, the Consultant will interface with, and follow the
reasonable directions of, the Company’s Chairman, President and Chief Executive
Officer or any other officer or representative of the Company designated by the
Company’s Chairman, President and Chief Executive Officer. The Consultant will
perform the Services lawfully and faithfully, to the best of his 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.
(b) The
Consultant acknowledges and agrees that whether the Company engages in any
transaction based upon the Services 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, unless terminated earlier as
provided for herein (the “Consulting Period”).
4. Compensation.
(a) As
consideration in full for the performance of the Services, the Consultant shall
be paid a consulting fee equal to 1,120,000 shares of the Company’s common
stock, par value $0.001 per share (the “Consulting Fee”), which shall be issued
under the Company’s current S-8 registration statement. The
Consulting Fee shall be fully earned upon the execution and delivery of this
Agreement. The Consultant previously was to receive a monthly cash
consulting fee from the Company which, the company currently is indebted to the
consultant shall no longer be payable to the Consultant.
(b) 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.
6. 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.
7. 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 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; (vi)
liquidation, bankruptcy or insolvency of the Consultant; or (vii) a
breach of any provision of this Agreement by the Consultant In addition, (a) the
Company may terminate this Agreement at any time, without any reason whatsoever,
upon ten (10) days prior written notice to the Consultant and (b) the Consultant
may terminate this Agreement upon not less that thirty (30) days prior written
notice to the Company.
8. Confidentiality
Covenant and other Restrictive Covenants Applicable to
Consultant.
(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 8(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 8 (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.
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(b) During
the Consulting Period, the Consultant shall not, and shall cause his 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 anywhere
in the world 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.
(d) The
Consultant acknowledges that if the Consultant or any of its affiliates should
breach or threaten to breach any provision of Sections 8(a) through 8(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 8(a) through 8(c) hereof are violated or
breached or threatened to be violated or breached, in whole or in part, the
Company shall be entitled to obtain specific performance and injunctive relief
(without being required to post a bond or other security and without being in
required to establish irreparable harm or actual damages), 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 all of which may be exercised
concurrently. In addition, should the Consultant breach any of the
provisions of Sections 8(a) through 8(c) hereof, the Company shall be
the right to immediately cease making any further payments of the Consulting Fee
to the Consultant.
9. 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 whish are 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
10. Consultant
Representations and Warranties. The Consultant hereby represents and
warrants to the Company as follows; (a) the Consultant has the legal capacity to
enter into this Agreement and perform his obligations hereunder; (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.
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11. 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.
12. Amendment. This Agreement
may not be modified, amended, altered or supplemented, except by a written
agreement executed by each of the parties hereto.
13. 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. There are no
representations or promises among the parties with respect to the subject matter
hereof, except as expressly set forth herein.
14. 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.
15. 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.
16. 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 16), 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:
00000
Xxxxxx Xxxxxx, Xxxxx 0-X
Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx.
Xxx Xxxxxxxxx
Chairman,
President and Chief Executive Officer
Facsimile
No.: (000) 000-0000
If to the
Consultant:
Xxxxxx
Xxxxxxxxx.
0000
Xxxxx Xxxxx Xxxx., Xxxx X
Xxxxxxxx,
XX 00000
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 16.
17. 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 16 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.
18. 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 affect to the intent of the
parties.
19. 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
Section 15.
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20. 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.
21. 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.
22. 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.
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.
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s/s
Xxx
Xxxxxxxxx
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By:
_____________________________
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Name:
Xxx Xxxxxxxxx
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Title:
C.E.O.
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XXXXXX
XXXXXXXXX
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s/s
Xxxxxx
Xxxxxxxxx
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By:
_____________________________
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Name:
Xxxxxx Xxxxxxxxx
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