EXHIBIT NO. 6.13
CONSULTING AGREEMENT BETWEEN PLANET
SWEEP ENTERTAINMENT, XXXXXXX XXXXXXXXX AND
WET BEAK HOLDINGS, INC. DATED 8TH OF MAY, 2000.
CONSULTING AGREEMENT
CONSULTING AGREEMENT, entered into as of the 8th day of May, 2000, by
and between Planet Sweep Entertainment, a division of Planet Sweep, Inc., a
Nevada corporation, with its principal place of business at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxx Xxxxxxxxx and Wet
Beak Holdings, Inc., located at 000 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Consultant").
WITNESSETH:
WHEREAS, the Company wishes to employ the Consultant upon the terms and
conditions contained herein; and
WHEREAS, the Consultant wishes to accept Consulting with the Company
upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. CONSULTING
The Company hereby employs the Consultant and the Consultant hereby
accepts Consulting upon the terms and conditions set forth herein.
2. AT WILL CONSULTING
The Consulting hereunder shall be at will and the Consultant will serve
at the will of the Chairman and Board of Directors and may be terminated by the
Chairman or Board of Directors at any time for any reason. Nothing in this
Agreement will be interpreted to give the Consultant any status other than that
of an At will Consultant. Upon termination of this Agreement by the Company, the
Company shall pay Consultant a sum equal to one-month salary.
3. SERVICES TO BE RENDERED
(a) The Consultant shall serve as the Director of Content
Development for the Company and shall perform duties consistent with those of
an External Director and such other duties as shall be designated from time
to time by the President, CEO, Board of Directors or Chairman of the Company.
He will report directly to the President. The Consultant will be one of the
Company's principal service providers and will conduct and manage the
Company's business in accordance with policies established by the Company
from time to time. The precise services of the Consultant may be extended or
curtailed from time to time at the direction and in the sole discretion of
the Company's Chairman, Board of Directors, CEO or President. Unless
prevented by death or disability, the Consultant shall devote his full
business time, allowing for illnesses, vacations and national holidays, as
set forth in Sections 5(d) and (e) hereof, exclusively to the business and
affairs of the Company, and shall use his best efforts,
skill and abilities to promote the Company's interests. It is anticipated that
the Consultant will become a full-time employee of the Company upon public
trading of the Company's stock or at other such time as the parties hereto
mutually agree.
4. COMPENSATION
For the services rendered hereunder, the Company shall pay and
the Consultant shall accept the following compensation:
(a) From May 8, 2000 until August 31, 2000 the Consultant
shall receive a monthly fee of $7,000.00, payable on the 30th day of each
month. At the end of Consultant's initial four months of Consulting for the
Company, the Chairman, President and Board of Directors shall review
Consultant's compensation and adjust same as appropriate. Thereafter,
Consultant will be subject to increase pursuant to annual review by the Board
of Directors.
(b) The Consultant shall receive any bonus or other
compensation as the Board of Directors may determine from time to time.
(c) The Consultant's salary shall be payable subject to
such deductions as are then required by law and such further deductions as
may be agreed to by the Consultant, in accordance with the Company's
prevailing salary payroll practices.
(d) Upon Execution of this Agreement, Consultant shall
receive One Million (1,000,000) shares of the Company's common stock, subject
to forfeiture (in whole or in part as provided herein) if Consultant's
Consulting is terminated for any reason or no reason on or before May 1,
2003. As of the date hereof, the entire One Million (1,000,000) shares shall
be subject to forfeiture. Commencing on November 1, 2000 and each 6 months
thereafter (i.e. each May 1 and each November 1 occurring while this
Agreement remains in effect) to and including May 1, 2003, provided this
Agreement then remains in effect, the number of shares subject to forfeiture
shall be reduced by 1666,666.66. Thus, as an example of the foregoing, on
November 1, 2000, provided this Agreement is in effect, One Hundred sixty-six
Thousand Six Hundred sixty-six and 66/100 (166,666.66) shares shall forever
no longer be subject to forfeiture pursuant to this Section. Certificates for
shares subject to forfeiture shall be held in escrow by the Company's counsel
and released to Consultant, if as and when (and to the extent) same are no
longer subject to forfeiture.
5. BENEFITS AND EXPENSES
(a) During the term of this Agreement, the Company shall,
upon presentation of proper vouchers, reimburse the Consultant for all
reasonable expenses, to be approved in advance, incurred by him directly in
connection with his performance of services as an officer and Consultant of
the Company.
(b) The Consultant shall receive as paid days off all
national holidays, sick days, and personal days that the Company, pursuant to
established policy, recognizes and observes.
6. COVENANTS AND RESTRICTIONS
(a) The Consultant hereby covenants and agrees that the
Consultant will not at any time subsequent to the date hereof and continuing for
a period of two (2) years from the termination of the Consultant, reveal,
divulge, or make known to any Person any Confidential Information (as
hereinafter defined) made known to the Consultant or of which Consultant has
become aware, regardless of whether developed, prepared, devised or otherwise
created in whole or in part by the efforts of the Consultant and except to the
extent so authorized in writing by the Company in order to carry out the terms
of this Agreement or except as required by law. For purposes of this Agreement,
the term Confidential Information shall mean (i) any technical, scientific or
engineering information relating to the Company's products and/or services, (ii)
information relating to any customer of the Company, including without
limitation, the names, addresses, telephone numbers and sales records of, or
pertaining to any such customer, and (iii) price lists, methods of operation and
other information pertaining to the Company and which the Company, in its sole
discretion, regards as confidential and in the nature of trade secrets.
Notwithstanding anything contained herein to the contrary, Confidential
Information as used herein shall not include that which (i) was in the public
domain prior to receipt hereunder in the same context as the disclosure made
hereunder, (ii) the Consultant can show was in his possession and in the same
context prior to his receipt, (iii) subsequently becomes known to the Consultant
as a result of disclosure by third parties not in the course of this Agreement
and as a matter of right and without restriction on disclosure, or (iv)
subsequently comes into the public domain in the same context as the disclosure
by the Company through no fault of the Consultant.
(b) The Consultant further covenants and agrees that the
Consultant will retain all of such Confidential Information in trust for the
sole benefit of the Company, and will not divulge or deliver or show any of such
Confidential Information to any unauthorized person and will not make use of or
in any manner seek to turn to account any of such Confidential Information in an
independent business however unrelated to the business of the Company. The
Consultant further agrees that upon the termination of this Agreement or upon
the request of the Company, the Consultant will either supply or return to the
Company, in accordance with the Company's request, all Confidential Information
in the Consultant's possession, including, without limitation, all account
lists, records and data related to all customers of the Company.
(c) The Consultant acknowledges that his breach or threatened
violation of any of the restrictive covenants contained in this Section 6 may
cause irreparable damage to the Company for which remedies at law would be
inadequate. The Consultant further acknowledges that the restrictive covenants
set forth herein are essential terms and conditions of this Agreement. The
Consultant therefore agrees that the Company shall be entitled to a decree or
order by any court of competent jurisdiction enjoining such threatened or actual
violation of any of such covenants. Such decree or order, to the extent
appropriate, shall specifically enforce the full performance of any such
covenant by the Consultant and the Consultant hereby consents to the
jurisdiction of any such court of competent jurisdiction. This remedy shall be
in addition to all other remedies available to the Company at law or equity. If
any portion of this Section 6 is adjudicated to be invalid or unenforceable,
this Section 6 shall be deemed amended to delete therefrom the portion so
adjudicated, such deletion to apply only with respect to the operation of this
Section 6 in the jurisdiction in which such adjudication is made.
7. PROPRIETARY PROPERTY
(a) The parties hereto hereby agree that Proprietary Property
(as hereinafter defined) shall be the sole and exclusive property of the
Company, except as provided below. For purposes hereof, the term Proprietary
Property shall mean inventions, discoveries, improvements and ideas, whether
patentable or not, made solely by the Consultant or jointly with others, which
relate to the Company's business, including any of its products, services,
processes, technology, research, product development, marketing programs,
manufacturing operations, or engineering activities.
(b) The Consultant shall promptly disclose to the Company in
writing all Proprietary Property, including those in the formative stages,
created during the term hereof, irrespective of whether created during normal
business hours. In addition, the Consultant hereby agrees to promptly disclose
to the Company all Proprietary Property created subsequent to the date of
termination hereof, irrespective of the reasons for termination hereof, which
relate to or constitute an improvement on Proprietary Property or Confidential
Information, as defined herein.
(c) The Consultant hereby agrees and acknowledges that the
Consultant shall have no right, title or interest in or with respect to any
Proprietary Property, except as described below, and will during the term hereof
or at any time subsequent to the termination hereof, at the Company's request
and expense, execute any and all patent applications and assignments to the
Company and take any all action as required by the Company to perfect and
maintain the Company's rights and interests in and with respect to the
Proprietary Property.
(d) The Consultant hereby agrees to maintain written records
concerning the Proprietary Property and agrees to make those records available
to the Company at all times.
(e) Notwithstanding anything contained herein to the contrary,
Proprietary Property shall not include inventions or discoveries with respect to
which all of the following conditions apply:
(i) no equipment, supplies, facilities or
Confidential Information of the Company was used in
its development;
(ii) it does not relate the Company's business and/or
any proposed or planned products or services of the
Company, including any research and development
activities; and
(iii) it does not result from any work performed by
the Consultant for the Company.
(f) During or subsequent to the Consultant's Consulting by
Company, the Consultant will not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer for sale any
Proprietary Property without the Company's prior written permission.
8. PRIOR AGREEMENTS
The Consultant represents that he is not now under any written
agreement, nor has he previously, at any time, entered into any written
agreement with any person, firm or corporation, which would or could in any
manner preclude or prevent him from giving freely and the Company receiving the
exclusive benefit of his services.
9. NON-COMPETE
The Consultant recognizes that the Proprietary Property is a
special and unique asset of the Company and needs to be protected from improper
disclosure. In consideration of the disclosure of the Proprietary Property to
the Consultant, the Consultant agrees and covenants that for a period of one (1)
year following the termination of his Consulting for any reason whatsoever, the
Consultant will not directly or indirectly engage in any business that is
competitive to the Company, excluding activities deemed to relate to the
entertainment industry. This covenant shall apply to the geographical area that
includes the entire world. Directly or indirectly engaging in any business that
is competitive includes, but is not limited to: (a) engaging in a business as an
owner, partner or agent, (b) becoming an Consultant of any third party that is
engaged in such business, (c) becoming interested directly or indirectly in any
such business, or (d) soliciting any customer of the Company for the benefit of
a third party that is engaged in such business. The Consultant agrees that this
non-compete provision will not adversely affect the Consultant's livelihood.
10. MEDIATION AND ARBITRATION.
(a) If any dispute, controversy or claim arises in connection
with the performance or breach of this Agreement between the parties, a party
hereto may, upon written notice to the other parties, request facilitated
negotiations. Such negotiations shall be assisted by a neutral facilitator
acceptable to all parties and shall require the best efforts of the parties to
discuss with each other in good faith their respective positions and, respecting
their different interest, to finally resolve such dispute.
(b) A party may disclose any facts to the other parties or to
the facilitator which such party believes, in good faith, to be necessary to
resolve the dispute. All such disclosures shall be deemed in furtherance of
settlement efforts and thus confidential. Except as agreed to by all parties,
the facilitator shall keep confidential all information disclosed during the
negotiations. The facilitator shall not act as a witness for either party in any
subsequent arbitration between the parties.
(c) Such facilitated negotiations shall conclude within sixty
(60) days from receipt of the written notice, unless extended by mutual consent
of the parties. The costs incurred by each party in such negotiations shall be
borne by it. Any fees or expenses of the facilitator shall be borne equally by
all parties.
(d) If any dispute, controversy or claim arises in connection
with the performance or breach of this Agreement which cannot be resolved by
facilitated negotiations,
then such dispute, controversy or claim shall be settled by arbitration in
accordance with the laws of the State of New York and the then current
Commercial Arbitration Rules of the American Arbitration Association, except
that no pre-hearing discovery will be permitted unless specifically authorized
by the arbitration panel. The confidentiality provisions applicable to
facilitated negotiations shall also apply to arbitration.
(e) The award issued by the arbitration panel may be confirmed
in a judgment by any federal or state court of competent jurisdiction. All
reasonable costs of both parties, as determined by the arbitration panel,
including (i) the fees and expenses of the American Arbitration Association and
of the arbitration panel, and (ii) the costs, including reasonable attorneys'
fees, incurred to confirm the award in court, shall be borne entirely by the
non-prevailing party (to be designated by the arbitration panel in the award)
and may not be allocated between the parties by the arbitration panel.
11. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and upon the Consultant,
his heirs, executors, administrators, legatees and legal representatives.
(b) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any portion which may for any reason be declared invalid.
(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State without application of the principles of
conflicts of laws of such State.
(d) This Agreement and all rights hereunder are personal to
the Consultant and shall not be assignable, and any purported assignment in
violation thereof shall be null and void. Any person, firm or corporation
succeeding to the business of the Company by merger, consolidation, purchase of
assets or otherwise, shall assume by contract or operation of law the
obligations of the Company hereunder; provided, however, that the Company shall,
notwithstanding such assumption and/or assignment, remain liable and responsible
for the fulfillment of the terms and conditions of the Agreement on the part of
the Company.
(e) This Agreement constitutes the entire agreement between
the parties hereto with respect to the terms and conditions of the Consultant's
Consulting by the Company, as distinguished from any other contractual
arrangements between the parties pertaining to or arising out of their
relationship, and this Agreement supersedes and renders null and void any and
all other prior oral or written agreements, understandings, or commitments
pertaining to the Consultant's Consulting by the Company. This Agreement may
only be amended upon the written agreement of both parties hereto.
(f) Any notice, statement, report, request or demand required
or permitted to be given by this Agreement shall be in writing, and shall be
sufficient if delivered in person or if addressed and sent by certified mail,
return receipt requested, postage prepaid, to the parties at the addresses set
forth above, or at such other place that either party may designate by notice in
the foregoing manner to the other. If mailed, as aforesaid, any such notice
shall be deemed given three (3) days after being so mailed.
(g) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or any condition of this Agreement on the part
of either party shall be effective for any purpose whatsoever unless such waiver
is in writing and signed by such party.
(h) The provisions of Sections 6, 7, 9, 10 and 11 of this
Agreement shall survive any termination of this Agreement.
(i) The headings of the paragraphs herein are inserted for
convenience and shall not affect any interpretation of this Agreement.
(j) Consultant warrants and avers that he has not previously
been subject to arrest or otherwise convicted of any crime by a court of
competent jurisdiction within or without the United States of America and
further states that he has not been or is presently the subject of any criminal
investigation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Consultant Planet Sweep, Inc.
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------- -----------------------------
Xxxxxxx Xxxxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: President
