CONSULTING AGREEMENT
Exhibit
10.3
CONSULTING AGREEMENT, dated as
of the 2nd day of May, 2008 (the “Effective Date”), by and between Firstway
Enterprises, Inc., a Delaware corporation (the “Company”) and Cypress Advisors
LLC, a Florida limited liability company (“Consultant”).
W I T N E S S E T H:
WHEREAS,
Consultant has experience in providing advice on capital raising and will
undertake to contact and present information regarding Company to persons or
entities (the “Services”), where such source may provide, each in its own
discretion, funding and/or financing to the Company including a financing in the
amount of $1,000,000 with The Posner Group (the “Funding”); and
WHEREAS,
the Company desires to engage the service of Consultant in connection with
Services, and Consultant desires to perform such Services, all on and subject to
the terms of this Agreement;
WHEREFORE,
the parties do hereby agree as follows:
1. Services.
(a) The
Company hereby engages Consultant to provide the Services. In
performing the Services, Consultant shall report to such person as may, from
time to time, be designated by the Company’s chief executive
officer. Consultant shall not have any authority to execute contracts
or make any commitments on behalf of the Company.
(b) Consultant
accepts the engagement provided in this Agreement and agrees to perform the
Services in a professional manner, diligently, in good faith, in a manner
consistent with the best interests of the Company. Consultant shall
not be required to devote his full time and attention to the Services. The
Company recognizes that Consultant has other business activities to which he
devotes a significant amount of his time.
2. Term. This
Agreement shall, subject to Section 5 of this Agreement, have a term (the
“Term”) commencing on the date of this Agreement and ending on the six month
anniversary of the Effective Date.
3. Compensation. In
consideration of the Services rendered and to be rendered by Consultant the
Company shall grant to Consultant 2,273,438 shares of the Company’s common
stock, par value $.0001 per share (“Common Stock”), which shall be issued
concurrent with the Funding; provided, however, 750,235 shares shall be held by
a third party and shall be delivered to the Consultant upon the closing of a
financing in excess of $2,000,000 resulting from the efforts of Consultant at
terms that are acceptable to the Company. The 2,273,438 shares of
Common Stock issued under this Agreement shall have piggyback registration
rights.
4. Expenses. The
Company shall reimburse Consultant for all reasonable and necessary expenses
incurred by Consultant on behalf of the Company upon presentation of appropriate
vouchers and back-up documentation in accordance with the Company’s expense
reimbursement policy. Consultant will not incur any expenses for
travel or any other expenses involving more than $100 without the prior written
approval of the Company.
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5. Confidential
Information.
(a) Consultant
recognizes and acknowledges that during the course of performing the Services it
will acquire information regarding the Company and the Company’s business
methods, technology, products, plans and clients and other information which is
not publicly known and which the Company regards as proprietary to it and
includes any confidential proprietary information (“Confidential
Information”). Without limiting the generality of the foregoing,
Confidential Information includes all proprietary know-how, use and applications
know-how, technical information, product formulae and formulations and other
trade secrets relating to the Company’s products and proposed products, any
information or other information contained in any patent application, regardless
of whether a patent is ever issued with respect to such application, results of
studies and surveys, in any stage of development, including, without limitation,
modifications, enhancements, designs, concepts, techniques, methods, ideas, flow
charts and all other information relating to the Company’s
products.
(b) Consultant
agree that it will not, at any time, whether during or after the Term, disclose
to any person or use, directly or indirectly, for Consultant’s own benefit or
the benefit of others, or aid or assist others in using any Confidential
Information, or permit any person to examine or make copies of any document
which may contain or is derived from Confidential Information, whether prepared
by Consultant or otherwise coming into Consultant’s possession or
control.
(c) In the
event that Consultant is, pursuant to, or required by, applicable law,
regulation or legal process, to disclose any of the Confidential Information,
Consultant will notify the Company promptly so that the Company may, at its
cost, seek a protective order or other appropriate remedy or, its sole
discretion, waive compliance with the terms of this Section
5. Consultant shall not disclose any Confidential Information until
the court has made a ruling. In the event that no such protective
order or other remedy is obtained, or in the event that the disclosing party
waives compliance with the terms of this Section 5, Consultants will furnish
only that portion of the Confidential Information which it is advised by counsel
is legally required and will exercise all reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Confidential
Information.
6. Return of Confidential
Information. Consultant shall, upon completion of the Services
or upon termination of Consultant’s engagement with the Company, or earlier at
the request of the Company, turn over to the Company all documents, papers,
computer disks or other material in Consultant’s possession or under
Consultant’s control which may contain or be derived from Confidential
Information, together with all documents, notes or other work products which are
connected with or derived from the Services. To the extent that any
Confidential Information is on Consultant’s hard drive or other storage media,
he shall, upon the request of the Company, cause such information to be erased
from his computer disks and all other storage media.
7. Non-Solicitation.
(a) During
the Term and for a period one (1) year following the expiration or
termination of the Term, Consultant will not, directly or
indirectly:
(i) persuade
or attempt to persuade any person or entity which is or was a customer or
supplier of the Company to cease doing business with the Company, or to reduce
the amount of business it does with the Company (the terms “customer,” as used
in this Section 7(a) includes any potential customer to whom the Company
submitted bids or proposals, or with whom the Company conducted negotiations,
during the Term);
(ii) persuade
or attempt to persuade any employee of the Company to leave the Company’s
employ, or to become employed by any person or entity other than the
Company.
(b) Consultant
acknowledge that the restrictive covenants (the “Restrictive Covenants”)
contained in this Section 7 are a condition of Consultant’s engagement by the
Company and the grant of the Common Stock and are reasonable and valid in
geographical and temporal scope and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part of any of the
Restrictive Covenants, is invalid or unenforceable, the remainder of the
Restrictive Covenants and parts thereof shall not thereby be affected and shall
remain in full force and effect, without regard to the invalid portion. If any
court determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such
provision, such court shall have the power to reduce the geographic or temporal
scope of such provision, as the case may be, and, in its reduced form, such
provision shall then be enforceable.
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8. Injunctive
Relief. Consultant acknowledge that the violation or
threatened violation by it of any of the provisions of Sections 5, 6 and 7 of
this Agreement shall cause immediate and irreparable harm to the
Company. In the event of any breach or threatened breach of any of
said provisions, Consultant consent to the entry of preliminary and permanent
injunctions by a court of competent jurisdiction prohibiting them from any
violation or threatened violation of such provisions and compelling them to
comply with such provisions. This Section 8 shall not affect or limit, and the
injunctive relief provided in this Section 8 shall be in addition to, and not in
lieu of, any other remedies available to the Company at law or in equity for any
such violation by Consultant.
9. Non-Circumvention. Neither Company nor any
representative of Company shall contact any funding source introduced to the
Company through Consultant without the prior written approval of Consultant for
the duration of this Agreement, or for a period of two years following the
termination of this Agreement. Furthermore, Company hereby
irrevocably agrees not to circumvent, avoid, bypass, or obviate, directly or
indirectly, the intent of this Agreement, or to avoid payment of fees in any
transaction with any funding source introduced to the Company by
Consultant.
10. Independent
Contractors. It is expressly agreed that the Company and
Consultant are acting hereunder as independent contractors. Neither
party shall be deemed to an employer, employee, agent, partner or joint venturer
of the other. No party has authority to enter into agreements on behalf of any
other party or to bind any other party in any way.
11. Notices. Any
notices required or permitted to be sent hereunder shall be in writing and shall
be sent, by certified or registered mail, return receipt
requested, or by messenger or overnight courier which provides
evidence of delivery, or by telecopier or similar means of communication if the
receipt is acknowledged or if a copy thereof is sent in the manner provided in
this Section 11. Notices shall be sent to the addresses or telecopier
number set forth on the signature page of this Agreement. Notices
shall be effective upon the date when delivery is either effected or
refused.
12. Survival. The
provisions of Sections 5, 6 and 7 of this Agreement shall survive any
termination of this Agreement or the Term. This Agreement shall
survive any change in stock ownership of the Company.
13. Miscellaneous.
(a) Consultant
represents, warrants, covenants and agrees (i) that it has a right to enter into
this Agreement, (ii) that it is not a party to any agreement or understanding,
oral or written, which would prohibit performance of his obligations under this
Agreement, (iii) that it will not use in the performance of his obligations
hereunder any proprietary information of any other party which he is legally
prohibited from using, (iv) that it is an accredited investor within the meaning
of Rule 501 of the Commission pursuant to the Securities Act of 1933 (the
“Securities Act”), (v) that it understands that the Shares constitute restricted
securities within the meaning of Rule 144 of the Securities Exchange Commission
(the “Commission”) pursuant to the Securities Act and may not be sold or
otherwise transferred except pursuant to an effective registration statement or
an exemption from the registration requirements of the Securities Act and (vi)
acknowledges that the certificate or certificates for the Common Stock will bear
the Company’s customary Securities Act restrictive legend.
(b) This
Agreement, and the respective rights, duties and obligations of the parties
pursuant to this Agreement, shall be governed and construed in accordance with
the laws of the State of Florida applicable to agreements executed and to be
performed wholly within such state without regard to principles of conflicts of
law. Each party hereby (i) irrevocably consents and agrees that any
legal or equitable action or proceeding arising under or in connection with this
Agreement may be brought in any federal or state court situated in Sarasota,
Florida, (ii) irrevocably submits to and accepts, with respect to its properties
and assets, generally and unconditionally, the in personam jurisdiction of the
aforesaid courts and waives the defense of an inconvenient forum to the
maintenance of such action or proceeding, and (iii) agrees that service in any
such action may be made either (x) by mailing or delivering a copy of such
process to such party in the manner set forth in Section 11 of this Agreement,
other than by facsimile transmission, or (y) by any other manner permitted by
law.
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(c) This
Agreement shall bind and inure to the benefit of the parties, and their
respective executors, administrators, successors and assigns; provided, however,
that neither party may assign his or its obligations under this Agreement except
that this Agreement may be assigned by the Company in connection with a merger,
consolidation or sale by the Company of all or substantially all of its
business.
(d) If any
provision of this Agreement is found to be void or unenforceable by a court of
competent jurisdiction, the remaining provisions of this Agreement, shall,
nevertheless, be binding upon the parties with the same force and effect as
though the unenforceable part has been severed and deleted.
(e) Each of
the parties to this Agreement shall execute and deliver to the other party,
without charge to the other party, any further instruments and documents and
take such other action as may be requested by the other party in order to
provide for the other party the benefits of this Agreement.
(f) This
Agreement may be executed in one or more counterparts, all of which shall be
deemed to be duplicate originals.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
By: /s/ Xxxxxx
Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Executive
Officer
ADDRESS:
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000
Xxxxx,
Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx,
CEO
Facsimile:
_____________________
CYPRESS ADVISORS LLC
By: /s/Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Managing Member
ADDRESS:
0000 X.X. 000xx Xxxxxx, 0xx
Xxxxx
Xxxxx Xxxxxxx 00000
Attention: Xxxxx Xxxx, Managing
Member
Facsimile:
_____________________
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