Consulting Agreement Between
S D & T Associates and Ohana Enterprises, Inc.
This Consulting Agreement made and entered into this 28 Day of July 2003 by and
between Ohana Enterprises, Inc., having an office 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000 (hereinafter "OHNA") and Dr. Savortham Chary,
proprietor of S D & T Associates International (hereinafter "Consultants")
independent contractors, having an xxxxxxx Xxxxxxxx Xxxx, Xxxxx, X.X., Xxxxx,
000000 and 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx, Xxxxxx, X0X 0X0.
P R E M I S E S
WHEREAS, OHNA, through its operations is engaged in the business of offering a
dependable, high-performance streaming video solution for candidate interviews
accessed via a secure intranet.
WHEREAS, Consultant represents themselves as qualified to perform the desired
services required by OHNA.
WHEREAS, OHNA desires to retain Consultant to design, prepare, and produce
marketing and promotional material for the company's products and services; and
To assist the Company with introductions to industry contacts, media and
journalist that may assist in Corporate/Business Development for Ohana; and OHNA
shall compensate Consultant for the services by issuing Consultant shares of the
OHNA common stock.
The Consultant is willing to perform such consulting services on the terms and
conditions herein contained.
A G R E E M E N T
NOW THEREFORE, in consideration of the above stated premises and the promises
herein contained, and for good and valuable consideration, the parties hereto
agree as follows:
1. Engagement of Consultant:
OHNA hereby retains Consultant and Consultant agrees to design, prepare, and
produce marketing and promotional material for the company's products and
services; and to assist the Company with introductions to industry contacts,
media and journalist that may assist in Corporate/Business Development for
Ohana.
2. Terms:
OHNA hereby retains Consultant for a period of twelve (12) months ending July
31, 2004, and renewable after January 31, 2004, on a monthly basis, only by a
written notification from OHNA to Consultant, to provide the services set forth
herein.
A. Scope of Consultant's Work:
1. On a non-exclusive basis, Consultant shall introduce OHNA to industry
contacts, media, and journalist that will assist the Company in its requirements
to generate media awareness and bring good will to Ohana and its products and
services. Consultant, on a timely basis will design, prepare, and produce the
required marketing and promotional material necessary for Ohana to immediately
assist in the commercialization of the company's products and services, as well
as corporate good will.
B. Work Assignment
1. Specific verbal and written tasks are to be coordinated through Xxxxxx Xxxxx
and/or Xxxxxxxxx Xxxxxxxx, CEO and CFO respectively of OHNA with periodic plans
submitted as well as ongoing monthly progress reports sent to OHNA.
2. Compensation: As compensation for the services to be rendered by Consultant
hereunder, Consultant shall be paid, and Consultant agrees to accept, the
following:
a. The Company agrees to pay the Consultant, as basic compensation for the
services provided by the Contractor hereunder, 500,000 shares of Ohana
Enterprises, Inc.; 250,000 of which are subject to immediate registration
under S-8; the remaining 250,000 of which shall be registered upon
resolution of the Xxxxxx litigation. The Company will consider an
additional 375,000 shares subject to immediate registration under S-8 for
successful completion of required activities as specified in this
Agreement.
5. Termination of Agreement by the Company. It is understood and agreed that
either party hereof, may at any time and for any reason whatsoever, terminate
this agreement by giving thirty (30) days prior written notice to the other
party. At the conclusion of this agreement, or its termination, all data
provided by OHNA to Consultant shall be returned to OHNA. All compensation due
for completed services through the date of termination shall be paid to
Consultant immediately upon termination.
6. Reports To OHNA
a. Commencing September 1st, 2003, and at least once each month thereafter
during the Term of this Agreement, Consultant shall prepare and present to OHNA
a written report describing its activities and its progress toward meeting the
objectives mutually agreed upon by Consultant and OHNA.
b. Throughout the Term of this Agreement, Consultant may also provide the
officers, directors, employees or designees of OHNA with verbal reports
concerning its activities.
This Agreement may be extended beyond the period specified herein as set forth
herein.
7. Confidential Information
OHNA agrees to promptly provide and fully disclose to Consultant any and all
information regarding OHNA, which Consultant deems pertinent to its engagement
hereunder. Consultant acknowledges that any and all knowledge or information
concerning OHNA and its affairs obtained by Consultant, his principals,
employees and/or contractors in the course of his engagement hereunder will be
deemed "confidential" and will be held inviolate by him and that he will conceal
the same from any and all other persons and entities, including, but not limited
to, competitors of OHNA and that he will not impart any such knowledge to anyone
whosoever during or after the term of hereof. As used herein, "confidential"
knowledge or information means: (a) all information regarding OHNA, which is not
generally available to the public; and (b) all information regarding OHNA, which
was received by Consultant from a source with confidentiality obligations to
OHNA. Consultant shall, upon the termination of his engagement by OHNA for any
reason whatsoever, immediately surrender and turn over to OHNA all
"confidential" material including, but not limited to, books, forms, records,
OHNA lists and all other papers and writings relating to OHNA and all other
property belonging to OHNA, it being understood and agreed that the same are the
sole property of OHNA. This includes any and all papers, documents and computer
records created or held by Consultant. In addition to any other rights or
remedies to which OHNA may be entitled, OHNA shall have the
right to obtain an ex parte restraint upon the breach or threatened breach of
this section. This section shall survive termination of this Agreement.
8. Best Efforts Basis.
Consultant agrees that he will at all times faithfully and to the best of his
experience, ability and talents, perform all the duties that may be required of
and from Consultant, pursuant to the terms of this Agreement. Consultant does
not guarantee that his efforts will have any impact on Client's business or that
any subsequent improvement will result from Consultant's efforts. Client
understands and acknowledges that the success or failure of Consultant's efforts
will be predicated on Client's assets and operating results.
9. Client's Rights to Approve Transactions.
OHNA expressly retains the right to approve, in its sole discretion, each and
every transaction introduced by Consultant that involves OHNA. Consultant and
OHNA agree that Consultant is not authorized to enter into agreements on behalf
of OHNA.
10. OHNA Under No Duty or Obligation to Accept or Close on any Transactions. It
is mutually understood and agreed that OHNA is not obligated to accept or close
any promotional proposal, acquisition, or merger transactions submitted by
Consultant.
11. Costs and Expenses.
Consultant shall be responsible for all out-of-pocket expenses, travel expenses,
third party expenses, filing fees, copy and mailing expenses that Consultant may
incur in performing Consulting Services under this Agreement. However, such
costs must be fair and reasonable, and shall be reimbursed to Consultant if
pre-approved in writing by OHNA and payable within thirty (30) days from the
date that the Consultant submits an approved expense report to OHNA.
12. Consultant Status
Consultant acknowledges that he is providing services hereunder as an
independent contractor. Accordingly, Consultant agrees that any taxes associated
with the performance of the services hereunder shall be his sole responsibility.
Consultant further agrees that nothing herein shall create a relationship of
partners or joint venture's between Consultant and OHNA
13. Representations of OHNA
OHNA hereby represents and warrants as follows:
a. Organization and Standing. OHNA is a corporation validly existing and in good
standing under the laws of Delaware.
b. Corporate Power and Authority. OHNA has the corporate power to execute and
deliver this Agreement, has taken all action required by law to authorize such
execution and delivery, and this Agreement is a valid and binding obligation of
OHNA in accordance with its terms.
14. Representations of Consultant
Consultant hereby represents and warrants as follows:
a. Power and Authority. Consultant has the power to execute and deliver this
Agreement, has taken all action required by law to authorize such execution and
delivery, and this Agreement is a valid and binding obligation of Consultant in
accordance with its terms.
b. Inside Information Securities Laws Violations. In the course of the
performance of his duties, consultant may become aware of information which may
considered "inside information" within the meaning of the Federal Securities
Laws, Rules and Regulations. Consultant acknowledges that his use of such
information to purchase or sell securities of OHNA, or its affiliates, or to
transmit such information to any other party with a view to buy, sell, or
otherwise deal in OHNA's securities, is prohibited by law and would constitute a
breach of this Agreement and notwithstanding the provisions of this Agreement,
will result in the immediate termination of the Options.
c. By reason of Consultant's knowledge and experience of financial and business
matters in general, and investments in particular, Consultant is capable of
evaluating the merits of this transaction and in bearing the economic risks of
an investment in the shares and OHNA in general and fully understand the
speculative nature of such securities and the possibility of such loss;
d. Consultant has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the Shares to be issued hereby and
reserved for issuance pursuant hereto, and to obtain any additional information
which Client possesses or can acquire without unreasonable effort or expense
that is necessary to verify the accuracy of information furnished; and
e. Consultant has been furnished with a copy of OHNA's most recent Annual Report
on Form 10-KSB, and all reports or documents required to be filed under Sections
13(a), 14(a) and 15(d) of the Securities and Exchange Act of 1933, as amended,
including but not limited to, quarterly reports on Form 10-QSB; and, in
addition, that Consultant has been furnished with a brief description of OHNA's
capital structure and any material changes in OHNA's affairs that may not have
been disclosed in the Disclosure Documents.
f. The Consultant agrees not to violate any Federal or State Laws in connection
with this agreement.
15. Defaults
In the event that OHNA fails to pay any amount due to Consultant hereunder, or
to timely reimburse Consultant for any expenses in the manner set forth herein,
or otherwise defaults hereunder, after receiving written notice of such default
with fifteen (15) days to cure, Consultant shall have the right to cease
performing services hereunder and to declare all amounts due hereunder to be
immediately due and payable. In no event shall any funds paid to Consultant
hereunder be refundable to OHNA.
16. Notices
All notices permitted, required or provided for by this Agreement shall be made
in writing, and shall be deemed adequately delivered if delivered by hand and a
receipt obtained, or by a nationally recognized overnight courier service that
regularly maintains records of its pick ups and deliveries, to the parties at
their respective addresses set forth above or to any other address designated by
a party hereto by written notice of such address change. Notices shall be deemed
given as of the date of delivery to the overnight courier service or to the
recipient if delivered by hand, and received one day after delivery to the
overnight courier service or when actually received if delivered by hand.
17. Indemnification
OHNA shall hold harmless and indemnify Consultant from and against any and all
damages, losses, liabilities, obligations, fees, costs and expenses, including
but not limited to, the payment and advancement of reasonable attorney's fees,
resulting from, or incurred in connection with claims made against Consultant
relating to the performance by OHNA hereunder. Notwithstanding the foregoing,
OHNA shall have no obligation to hold harmless and indemnify Consultant from
claims made against Consultant, which arise out of, or in connection with,
Consultant's negligence in the performance of his duties hereunder. The
provisions of this Section shall survive termination of this Agreement.
The Consultant shall hold harmless and indemnify OHNA from and against any and
all damages, losses, liabilities, obligations, fees, costs and expenses,
including but not limited to, the payment and advancement of reasonable
attorney's fees, resulting from, or incurred in connection with claims made
against OHNA relating to the performance of OHNA.
Except for compensation and any approved expenses, the Consultant shall hold
harmless and indemnify OHNA from and against any and all damages, losses,
liabilities, obligations, fees, costs and expenses, including but not limited to
the payment and advancement of reasonable attorney fees, resulting from, or
incurred in connection with claims made against OHNA relating to the performance
of OHNA.
18. Binding Effect; Assignment
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Neither party may assign
either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other party.
19. Entire Agreement
This Agreement represents the entire Agreement with respect to matters
contemplated herein and supersedes any prior oral or written agreements or
undertakings between the parties with respect to such matters. This Agreement
shall not be amended to any extent or canceled, except by a writing executed by
the parties.
20. Headings
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect any of the terms or provisions hereof.
21. Counterparts
This Agreement and any amendments hereto may be executed in any number of
counterparts, all of which together shall constitute a single, original
instrument.
22. Separability
To the extent that any term or provision hereof is deemed invalid, void or
otherwise unenforceable, but may be made enforceable by amendment thereto, the
parties agree that such amendment may be made so that the same shall,
nevertheless, be enforceable to the fullest extent permissible under the laws
and public policies applied in the jurisdiction in which enforcement is sought.
This Agreement is made in the State of Pennsylvania and subject to the laws of
such State without regard to conflicts of law rules. Any action or proceeding in
regard to this Agreement must be brought in the State of Delaware.
23. Waiver
A waiver of any breach of any provision of this Agreement must be in writing and
shall not constitute or operate as a waiver of any other breach of such
provision or of any other provision, nor shall any failure to enforce any
provisions hereof operate as a waiver of such provision or of any other
provision hereunder.
IN WITNESS THEREOF, the Parties have caused this agreement to be executed on its
behalf by a duly authorized officer and consultant as hereunto agreed by
authorized signatures, all as of the day and year first above written.
Ohana Enterprises, Inc. CONSULTANT
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Dr. Savortham Chary
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