EXHIBIT 10.46
CONSULTING AGREEMENT
THIS AGREEMENT, made, entered into, and effective this 1st day of June,
2004 (the "Effective Date"), by and between Xxx Xxxxxxx, an Individual with its
principal place of business at 200 Winston Drive, Apartment 2603, Xxxxxxxxx
Xxxx, XX 00000 (hereinafter referred to as "Consultant"), and Xxxxxx Xxxxxx
Promotions, Inc., a Delaware corporation with its principal place of business at
0000 Xxxxxx xx Xxxxxxxx, Xxxxx 000, XX, XX 00000 (hereinafter referred to as
"Corporation").
W I T N E S S E T H:
WHEREAS, Consultant desires to provide such consulting services for the
Corporation as an independent contractor, with the understanding that he shall
not be required to devote his full time to the business of the Corporation and
shall be free to pursue other personal and business interests; and
WHEREAS, the Company is desirous of retaining the Consultant for the
purpose of corporate planning and financial restructuring.
NOW, THEREFORE, in consideration of the premises, the mutual 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 may be requested by the
Corporation from time to time during the term of this consulting arrangement in
connection with the Corporation's 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
Corporation, negotiating with creditors, retiring debt, contract negotiation,
preparation and review of Private Placement Memoranda, and other consulting
services as the Corporation deems necessary directed toward strengthening the
Corporation's financial position. The Consultant also agrees that it will make
substantial introductions to the Corporation to potential investors who may be
interested in investing in various financing vehicles being offered for sale by
the Corporation.
1.3 Prohibited Services. The services to be rendered 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 making or promotional activities regarding or
involving the Company's common stock.
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2. RELATIONSHIP 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, his obligation to the Corporation shall supercede other obligations.
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.
3. COMPENSATION FOR THE CONSULTING ARRANGEMENT.
3.1 Consideration for Consulting Services. It is understood by the
Consultant that the Company is currently in the process of undertaking to
solicit proxies from its shareholders seeking to authorize an increase in the
number of authorized shares of common stock of the Company from 20 million
shares to 100 million shares (the "Proxy"). As consideration for the consulting
services to be provided by Consultant during the term of this Agreement, the
Consultant shall receive monthly, commencing on the effective date of this
agreement and continuing until the agreement's termination, 10,000 restricted
shares of the company's common stock. Such shares shall be paid to Consultant
within 30 days of the completion of the proxy and any other necessary corporate
action which must be taken to issue said shares, such corporate action to be
undertaken as quickly as practicable. The Company shall undertake to register
the shares on a Form S-8 registration statement filing with SEC and shall use
reasonable efforts to seek effectiveness of the registration statement, but does
not hereby guarantee the success of those efforts. In the event that the Proxy
is not successfully completed on or before November 1, 2004, the parties hereto
shall attempt to renegotiate the terms of compensation otherwise provided
hereunder. In the event that the parties cannot agree on alternative
compensation, this Agreement shall be void and the Corporation shall have no
obligation to the Consultant hereunder.
3.2 Expenses. Company agrees to pay for all costs and expenses
incurred associated with its employees' working with the Consultant, including
lodging, meals, and travel as necessary. Consultant shall furnish a completed
expense report to be approved by the Company prior to any reimbursement.
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 six (6) months (the "Consulting Period").
5. CONFIDENTIALITY 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 be at a substantial competitive disadvantage if it 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.
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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. During and following the Consulting Period for a
period of not less than three years, 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.
(i) Any trade secrets of the Corporation will be entitled to all of the
protections and benefits under New York 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.
(ii) 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.
(iii) 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 of the 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 property rights 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 property rights, 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;
(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 out the above obligations; and
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(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 may be limited by them in writing.
5.4 Definitions.
(a) For the purposes of this Section 5, "Confidential Information" shall
mean any and all:
(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, non-public financial or business information,
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 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, analysis, compilation, invention, technique, modification, process, or
improvement (whether subject to patent, copyright or trademarkable protection --
or not), any industrial design (whether registerable 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 any manner 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/services are
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
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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 is expressly prohibited from any of the following
(either directly or indirectly) during the period of the Consulting Agreement
and for three years after the conclusion of the Consulting Agreement:
(a) disclosing any Confidential Information of the Corporation.
(b) consulting for or investing in, owning, managing, operating, financing,
controlling, or participating in the 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;
(c) whether for the Consultant's own account or for the account of any
other person, soliciting business of the same or similar type being carried on
by the Corporation, from any person known by the Consultant to be a customer or
competitor 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;
(d) whether for the Consultant's own account or the account of any other
person (i) soliciting, employing, or otherwise engaging as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Corporation at any time during the Consulting Period or in any manner
inducing or attempting to induce any employee of the Corporation to terminate
his Consulting Arrangement or employment arrangement with the Corporation; or
(ii) interfering with the Corporation's relationship with any person, including
any person who at any time during the Consulting Period was an employee,
contractor, supplier, or customer of the Corporation; or
(e) at any time during or after the Consulting Period, disparaging the
Corporation or any of its shareholders, directors, officers, employees, or
agents.
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 Consultant. The period of
time applicable to any covenant in this Section 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 nationally 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):
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If to the Corporation: Xxxxxx Xxxxxx Promotions, Inc. a Delaware Corp.
Xxxxx Xxxxxxxxx, Vice President
0000 Xxxxxx xx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
If to the Consultant: Xxx Xxxxxxx
000 Xxxxxxx Xxxxx
Apartment 2603
Xxxxxxxxx Xxxx, XX 00000
8. BINDING EFFECT. This Agreement shall extend to, shall inure to the
benefit of and shall be binding upon all the parties hereto and upon all of
their respective 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 any violation of
the restrictive covenants or confidentiality provisions in this agreement would
result in damages to the Corporation that are imminent and irrevocable in nature
and are further difficult to measure in terms of monetary damages. It is
acknowledged and agreed by Consultant that any breach of these provisions shall
constitute irreparable injury to the Corporation and Consultant consents to the
entry of a temporary, preliminary and permanent injunction without need of a
bond to prevent any such injury to the Corporation.
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.
14. CHOICE OF LAW. This Agreement shall be interpreted and performed in
accordance with the laws of the State of New York, and the parties agree,
notwithstanding the principles of conflicts of law, that the internal laws of
the State of New York shall govern and control the validity, interpretation,
performance, and enforcement of this Agreement. Venue for any action under this
Agreement shall rest in the Courts of New York County in the State of New York.
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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, all as of the day and year first above written.
NOTE: ALL OTHER PREVIOUS AGREEMENTS SIGNED OR UNSIGNED ARE NULL AND VOID.
THIS AGREEMENT WILL BE FINAL UNLESS BOTH PARTIES AGREE TO IN WRITING FOR ANY AND
ALL OTHER CHANGES.
CONSULTANT: CORPORATION:
Xxx Xxxxxxx Xxx XxXxxxxxx, Vice President
By: ______________________ By: ________________________
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