AMENDED AND RESTATED CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AGREEMENT, effective as of
January 20, 2004 ( the "Effective Date"), by and between Xxxxx X. Xxxxxxxx, an
individual with its principal place of business at 000 Xx. Xx. Xxxxx,
Xxxxxxxxxx, XX 00000 (hereinafter referred to as "Consultant"), and Power
Channel Inc., a Delaware corporation with its principal place of business at 00
Xxxxx Xxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, XX 00000 (hereinafter referred to as
"Corporation").
WITNESSETH:
WHEREAS, the Corporation and the Consultant entered into a Consulting
Agreement effective the 20 day of November, 2003 (the Agreement); and
WHEREAS, pursuant to such Agreement the Corporationhas issued 750,000
shares of restricted common stock to the Consultant; and
WHEREAS, The corporation and the Consultant, after entering into the
Agreement, have determined that the additional compensation bonuses to be paid
to the Consultant as a result of increases to market capitalization should be
eliminated; and
WHEREAS, in lieu of the additional compensation bonuses, the Corporation
has agreed to issue to the Consultant an additional 270,943 shares of restricted
stock as payment in full for services rendered and to be rendered under the
Agreement; and
WHEREAS, in order to effect the foregoing, the Corporation and the
Consultant wish to amend and restate the Consulting Agreement as hereafter
provided.
NOW, THEREFORE, in consideration of the premises, themutual covenants of
the parties herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, it is agreed as follows:
1. CONSULTING ARRANGEMENT.
1.1 Contract for Services. The Corporation hereby contracts for
the services of Consultant and Consultant agrees to perform such duties and
responsibilities and to render advice and consulting as maybe requested by the
Corporation from time to time during the term of this consulting arrangement in
connection with the Corporation's
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business throughout the United States and world wide ("Consulting Arrangement").
Consultant shall use his best efforts to keep the Corporation informed of all
corporate business opportunities which shall come to his attention and appear
beneficial to the Corporation's business so that the Corporation can obtain the
maximum benefits from Consultant's knowledge, experience, and personal contacts.
1.2 Services Rendered by Consultant Said consulting services
shall include, but not be limited to re-structuring the balance sheet for the
company, negotiating with creditors, retiring debt, contract negotiation,
preparation and review of Private Placement Memorandum, introduction and
presentations to potential investors.
1.3 Prohibited Services. The services to be readered by the
Consultant to the Corporation shall under no circumstances include, directly or
indirectly, the following: (i) Any activities which could be deemed by the
Securities and Exchange Commission to constitute investment banking or any other
activities required the Consultant to register as a broker-dealer under the
Securities Exchange Act of 1934; (ii) Any activities which could be deemed to be
in connection with the offer or sale of securities, in a capital-raising
transaction; or (iii) Any-market-malting or promotional activities regarding
or-involvingthe-Company's-common stock
2. RELATIONSBIP BETWEEN PARTIES. During the term of the
Consulting Arrangement, Consultant shall be deemed to be an independent
contractor. He shall be free to devote his time, energy and skill to any such
person, firm or company as he deems advisable except to the extent he is
obligated to devote his time, energy and skill to the Corporation pursuant to
the terms of this Agreement. Consultant shall not be considered as having an
employee status vis-a-vis the Corporation, or by virtue of the Consulting
Arrangement being entitled to participate in any plans, arrangements or
distributions by the Corporation pertaining to or in connection with any
pension, stock, bonus, profit sharing, welfare benefits, or similar benefits for
the regular employees of the Corporation. The Corporation shall not withhold any
taxes in connection with the compensation due Consultant hereunder, and
Consultant will be responsible for the payment of any such taxes and hereby
agrees to indemnify the Corporation against nonpayment thereof.
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3. COMPENSATION FOR THE CONSULTING ARRANGEMENT. As full
consideration for the consulting services to be provided by Consultant during
the term of this Agreement, the Consultant shall receive 1,020,943-restricted
shares of the Company with piggy-back registration rights on the next
Registration Statement to be filed by the Company.
4. TERM OF CONSULTING ARRANGEMENT. The Consulting Arrangement
shall begin effective as of the Effective Date of this Agreement and shall
continue for a period of twelve (12) months, until November 24, 2004 (the
"Consulting Period").
5. CONFIDENTLALITY COVENANTS.
5.1 Acknowledgments by the Consultant. The Consultant
acknowledges that (a) during the Consulting Period and as a part of his
Consulting Arrangement, the Consultant will be afforded access to Confidential
Information (as defined below); (b) public disclosure of such Confidential
Information could have an adverse effect on the Corporation and its business;
(c) because the Consultant possesses substantial technical expertise and skill
with respect to the Corporation's business, the Corporation desires to obtain
exclusive ownership of each Consultant Invention (as defined below), and the
Corporation will beat a substantial competitive disadvantage ifit-fails to
acquire exclusive ownership of each Consultant Invention; (d) the provisions of
this Section 5 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to provide the Corporation with
exclusive ownership of all Consultant Inventions.
5.2 Agreements of the Consultant. In consideration of the
compensation and benefits to be paid or provided to the Consultant by the
Corporation under this Agreement, the Consultant covenants as follows:
(a) Confidentiality.
(i) During and following the Consulting Period, the Consultant
will hold in confidence the Confidential Information and will not disclose it to
any person except with the specific prior written consent of the Corporation or
except as otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Corporation will be entitled to all
of the protections
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and benefits under Dallas, Texas Statutes and common law and any other
applicable law. If any information that the Corporation deems to be a trade
secret is found by a court of competent jurisdiction not to be a trade secret
for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. The
Consultant hereby waives any requirement that the Corporation submit proof of
the economic value of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions applies
to any part of the Confidential Information that the Consultant demonstrates was
or became generally available to the public other than as a result of a
disclosure by the Consultant.
(iv) The Consultant will not remove from the Corporation's
premises (except to the extent such removal is for purposes of the performance
of the Consultant's duties at home or while traveling, or except as otherwise
specifically authorized by the Corporation) any document, record, notebook,
plan, model, component, device, or computer software or code, whether embodied
in a disk or in any other form (collectively, the "Proprietary Items"). The
Consultant recognizes that, as between the Corporation and the Consultant, all
of the Proprietary Items, whether or not developed by the Consultant, are the
exclusive property of the Corporation. Upon termination of this Agreement by
either party, or upon the request ofthe Corporation during the Consulting
Period, the Consultant will return to the Corporation all of the Proprietary
Items in the Consultant's possession or subject to the Consultant's control, and
the Consultant shall not retain any copies, abstracts, sketches, or other
physical embodiment of any of the Proprietary Items.
(b) Consultant Inventions. Each Consultant Invention will belong
exclusively to the Corporation. The Consultant acknowledges that all of the
Consultant's writing, works of authorship, and other Consultant Inventions are
works made for hire and the property of the Corporation, including any
copyrights, patents, or other intellectual propertyrights pertaining thereto. If
it is determined that any such works are not works made for hire, the Consultant
hereby assigns to the Corporation all of the Consultant's right, title, and
interest, including all rights of copyright, patent, and other intellectual
propertyrights, to or in such Consultant Inventions. The Consultant covenants
that he will promptly:
(i) disclose to the Corporation in writing any Consultant
invention;
(ii) assign to the Corporation or to a party designated by the
Corporation, at the Corporation's request and without additional compensation,
all of the Consultant's right to the Consultant Invention for the United States
and all foreign jurisdictions;
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(iii) execute and deliver to the Corporation such applications,
assignments, and other documents as the Corporation may request in order to
apply for and obtain patents or other registrations with respect to any
Consultant Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry outthe above
obligations; and
(v) give testimony and render any other assistance in support of
the Corporation's rights to any Consultant Invention.
5.3 Disputes or Controversies. The Consultant recognizes that
should a dispute or controversy arising from or relating to this Agreement be
submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of Confidential Information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy and will be available for
inspection by the Corporation, the Consultant, and their respective attorneys
and experts, who will agree, in advance and in writing, to receive and maintain
all such information in secrecy, except as maybe limited by them in writing.
5.4 Definitions.
(a) For the purposes of this Section 5, "Confidential
Information" shall mean any
(i) trade secrets concerning the business and affairs of the
Corporation, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and any other information, however documented, that is a trade
secret within the meaning of Chapter 688, Florida Statutes;
(ii) information concerning the business and affairs of the
Corporation (which
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includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(iii) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Corporation containing or based, in whole
or in part, on any information included in the foregoing.
(b) For the purposes of this Section 5, "Consultant Invention"
shall mean any idea, invention, technique, modification, process, or improvement
(whetherpatentable or not), any industrial design (whether registerable or not),
any mask work, however fixed or encoded, that is suitable to be fixed, embedded
or programmed in a semiconductor product (whether recordable or not), and, any
work of authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Consultant, either solely or in
conjunction with others, during the Consulting Period, or a period that includes
a portion of the Consulting Period, that relates in any way to, or is useful in
anymanner in, the business then being conducted or proposed to be conducted by
the Corporation, and any such item created by the Consultant, either solely or
in conjunction with others, following termination of the Consultant's Consulting
Arrangement with the Corporation, that is based upon or uses Confidential
Information.
6. NON COMPETITION AND NON-INTERFERENCE
6.1 Acknowledgments by the Consultant. The Consultant
acknowledges that: (a) the services to be performed by him under this Agreement
are of a special, unique, unusual, extraordinary, and intellectual character;
(b) the Corporation's business is national in scope and its products arc
marketed throughout the United States and world wide; (c) the Corporation
competes with other businesses that are or could be located in any part of the
United States and world wide; (d) the provisions of this Section 6 are
reasonable and necessary to protect the Corporation's business.
6.2 Covenants of the Consultant. In consideration of the
acknowledgments by the Consultant, and in consideration of the compensation and
benefits to be paid or provided to the Consultant by the Corporation, the
Consultant covenants that he Mn directly or indirectly:
(a) during the Consulting Period, except in the course of his
Consulting Arrangement hereunder, and during the Post-Consulting Period (as
defined below), engage or invest in, own, manage, operate, finance, control, or
participate in the
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ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Consultant's name or
any similar name to, lend Consultant's credit to or render services or advice
to, any business whose products or activities compete in whole or in part with
the products, or activities of the Corporation anywhere within the United
States; provided, however, that the Consultant may purchase or otherwise acquire
up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on anynational or regional securities
exchange or have been -registered under Section 12(g) of the Securities Exchange
Act of 1934;
(b) whether for the Consultant's own account or for the account
of any other person, at anytime during the Consulting Period and the
Post-Consulting Period, solicit business of the same or similar typebeingcarried
on by the Corporation, from any person known by the Consultant to be a customer
of the Corporation, whether or not the Consultant had personal contact with such
person during and by reason of the Consultant's Consulting Arrangement with the
Corporation;
(c) whether for the Consultant's own account or the account of
any other person (i) at any time during the Consulting Period and the
Post-Consulting Period, solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Corporation at any time during the Consulting Perood or in any mariner
induce or attempt to induce any employee of the Corporation to terminate his
Consulting Arrangement with the Corporation; or (ii) at anytime during the
Consulting Period and for three years thereafter, interfere with the
Corporation's relationship with any person, including any person who at anytime
during the Consulting Period was an employee, contractor, supplier, or customer
of the Corporation; or
(d) at any time during or after the Consulting Period, disparage
the Corporation or any of its shareholders, directors, officers, employees, or
agents.
For purposes of this Section 6.2, the term "Post-Consulting
Period" means the one year period beginning on the date of termination of the
Consultant's Consulting Arrangement with the Corporation.
If any covenant in this Section 6.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
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Consultant The period of time applicable to any Covenant in this Section 6.2
will be extended by the duration of any violation by the Consultant of such
covenant.
7. NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nation-ally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to the Corporation: Power Channel Inc., a Delaware corporation
00 Xxxxx Xxxx Xxxxxx, Xxxxx
00 Xxx Xxxx, XX 00000
If to the Consultant: Xxxxx X. Xxxxxxxx
000 Xx. Xx. Xxxxx Xxxxxxxxxx,
XX 00000
8. BINDING EFFECT.This Agreement shall extend to shall inure to
the benefit of and shall be binding upon all theparties hereto and upon all
oftheirrespective heirs, successors and representatives.
9. ENTIRE AGREEMENT. This Agreement, including the agreements
incorporated by reference, contains the entire Agreement among the parties
hereto with respect to the matters contemplated hereby and supersedes all prior
agreements and undertakings between the parties with respect to such matters.
This Agreement may not be amended, modified or terminated in whole or in part,
except in writing, executed by each of the parties hereto.
10. INDEMNIFICATION. Consultant hereby agrees to hold harmless
and indemnify Corporation from and against any and all loss, damage, expense,
and cost (including reasonable attorneys' fees incurred in connection with the
same) incurred by Corporation as a result of Consultant's breach of any covenant
or agreement made herein.
11. SPECIFIC PERFORMANCE. The Consultant acknowledges that his
obligations hereunder are unique, and that it would be extremely impracticable
to
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measure the resulting damages if he should default in his obligations under this
Agreement. Accordingly, in the event of the failure by Consultant to perform his
obligations hereunder, which failure constitutes a breach hereof by him the
Corporation may, in addition to any other available rights or remedies, xxx in
equity for specific performance and, in connection with any such suit, the
Consultant expressly waives the defense therein that the Corporation has an
adequate remedy at law.
12. SEVERABILITY. Should any part of any provision of this
Agreement be declared invalid by a court of competent jurisdiction, such
decision or determination shall not affect the validity of any remaining portion
of such provision or any other provision and the remainder of the Agreement
shall remain in full force and effect and shall be construed in all respects as
if such invalid or unenforceable provision or portion thereof were not contained
herein. In the event of a declaration of invalidity, the provision or portion
thereof declared invalid shall not necessarily be invalidated in its entirety,
but shall be observed and performed by the parties to the Agreement to the
extent such provision is valid and enforceable.
13. SECTION HEADINGS. The section headings contained herein are
for convenience of reference only and shall not be considered any part of the
terms of this Agreement
4 CHOICE-OF-LAW.This Agreement shall be interpreted and performed
in accordance with the laws of the State of Florida, and the parties agree,
notwithstanding the principles of conflicts of law, that the internal laws of
the State of Florida shall govern and control the validity, interpretation,
performance, and enforcement of this Agreement. Venue for any action under this
Agreement shall rest in Miami-Dade County, Florida.
IN WITNESS WHEREOF, Consultant has hereunto put his hand, and the
Corporation has caused this instrument to be executed in its corporate name by
its duly authorized officer, effective as of the day and year first above
written.
CONSULTANT: CORPORATION
Xxxxx X. Xxxxxxxx Power Channel, Inc
Xxxxx Xxxxxxx, President
By:_______________ By:____________________
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