CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 9th day of January, 2004 between Online Innovation, Inc. (the "Company") and CEOcast, Inc. ("Consultant").
In consideration of and for the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
| 1. | Purpose . The Company hereby employs the
Consultant during the Term (as defined below) to render consulting advice
to the Company and its investors in connection with investor relations
and similar matters, upon the terms and conditions as set forth herein.
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| 2. | Term. This Agreement shall be effective for
a three-month period (the "Term") commencing on the date hereof. |
| 3. | Duties of Consultant. During the term of
this Agreement, the Consultant shall provide the Company with the services
described on Exhibit A hereto which is attached hereto and made
a part hereof. Notwithstanding the foregoing, it is understood and acknowledged
by the parties that the Consultant: (a) shall perform its analysis and
reach its conclusions about the Company independently; and (b) shall not
render advice and/or services to the Company in any manner, directly or
indirectly, that is in connection with the offer or sale of securities
in a capital raising transaction or that could result in market making.
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| 4. | Compensation. For services to be rendered
by the Consultant hereunder, the Company shall pay Consultant upon the
signing of the Agreement (a) $12,500 (the "Retainer"). In addition, the
Company shall pay Consultant $12,500 on or before the 9 th day of February,
2004 and the 9 th of March 2004, $12,500. |
| 5. | Further Agreements. Because of the nature
of the services being provided by Consultant hereunder, Consultant acknowledges
that it may receive access to Confidential Information (as defined in
Section 6 hereof) and that, as a consultant to the Company, it will attempt
to provide advice that serves the best interest of the Company. Because
of the uniqueness of this relationship, the Consultant covenants and agrees
that, with respect to the Common Stock that it receives, Consultant shall,
at all times that it is the beneficial owner of such shares, vote such
shares on all matters coming before it as a stockholder of the Company
in the same manner as the majority of the Board of Directors of the Company
shall recommend. |
| 6. | Confidentiality. Consultant acknowledges
that as a consequence of its relationship with the Company, it may be
given access to confidential information which may include the following
types of information; financial statements and related financial information
with respect to the Company and its subsidiaries (the "Confidential Financial
Information"), trade secrets, products, product development, product packaging,
future marketing materials, business plans, certain methods of operations,
procedures, improvements, systems, customer lists, supplier lists and
specifications, and other private and confidential materials concerning
the Company's business (collectively, "Confidential Information"). |
Consultant
covenants and agrees to hold such Confidential Information strictly confidential
and shall only use such information solely to perform its duties under
this Agreement, and Consultant shall refrain from allowing such information
to be used in any way for its own private or commercial purposes. Consultant
shall also refrain from disclosing any such Confidential Information to
any third parties. Consultant further agrees that upon termination or
expiration of this Agreement, it will return all Confidential Information
and copies thereof to the Company and will destroy all notes, reports
and other material prepared by or for it containing Confidential Information. |
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Consultant understands and agrees that the Company might be irreparably harmed by violation of this Agreement and that monetary damages may be inadequate to compensate the Company. Accordingly, the Consultant agrees that, in addition to any other remedies available to it at law or in equity, the Company shall be entitled to injunctive relief to enforce the terms of this Agreement. Notwithstanding the foregoing, nothing herein shall be construed as prohibiting Consultant from disclosing any Confidential Information (a) which at the time of disclosure. Consultant can demonstrate either was in the public domain and generally available to the public or thereafter becomes a part of the public domain and is generally available to the public by publication or otherwise through no act of the Consultant; (b) which Consultant can establish was independently developed by a third party who developed it without the use of the Confidential Information and who did not acquire it directly or indirectly from Consultant under an obligation of confidence; (c) which Consultant can show was received by it after the termination of this Agreement from a third party who did not acquire it directly or indirectly from the Company under an obligation of confidence; or (d) to the extent that the Consultant can reasonably demonstrate such disclosure is required by law or in any legal proceeding, governmental investigation, or other similar proceeding. Severability. If any provision of this Agreement shall be held or made invalid by a statute, rule, regulation, decision of a tribunal or otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to be severable. |
| 7. | Governing Law; Venue; Jurisdiction. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of New York, without reference to principles of conflicts or choice of law thereof. Each of the parties consents to the jurisdiction of the U.S. District Court sitting in the Southern District of the State of New York or the state courts of the State of New York sitting in Manhattan in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens. to the bringing of any such proceeding in such jurisdictions. Each party hereby agrees that if another party to this Agreement obtains a judgment against it in such a proceeding, the party which obtained such judgment may enforce same by summary judgment in the courts of any country having jurisdiction over the party against whom such judgment was obtained, and each party hereby waives any defenses available to it under local law and agrees to the enforcement of such a judgment. Each party to this Agreement irrevocably consents to the service of process in any such proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at it address set forth herein. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law. Each party waives its right to a trial by jury. |
| 8 . | Miscellaneous. |
| (a) | Any notice or other communication between parties
hereto shall be sufficiently given if sent by certified or registered
mail, postage prepaid, if to the Consultant, addressed to it at 00 Xxxx
Xxxxxx, 00 xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Administrator,
facsimile number : (000) 000-0000, or to or such address as may hereafter
be designated in writing by one party to the other. Any notice or other
communication hereunder shall be deemed given three days after deposit
in the mail if mailed by certified mail, return receipt requested, or
on the day after deposit with an overnight courier service for next day
delivery, or on the date delivered by hand or by facsimile with accurate
confirmation |
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| generated by the transmitting facsimile machine,
at the address or number designated above (if delivered on a business
day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice
is to be received). |
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| (b) | This Agreement embodies the entire Agreement and
understanding between the Company and the Consultant and supersedes any
and all negotiations, prior discussions and preliminary and prior arrangements
and understandings related to the central subject matter hereof. |
| (c) | This Agreement has been duly authorized, executed
and delivered by and on behalf of the Company and the Consultant. |
| (d) | This Agreement and all rights, liabilities and obligations
hereunder shall be binding upon and inure to the benefit of each party's
successors but may not be assigned without the prior written approval
of the other party. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date hereof.
| ONLINE INNOVATION INC. | |||
| By: | /s/ Xxxx X. Xxx | ||
| CEOCAST, INC. | |||
| By: | /s/ Xxxxxxx Xxxxx | ||
EXHIBIT A
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