EXHIBIT 10.5
CONSULTING AGREEMENT
DATED FEBRUARY 1, 2003
WITH XXXXXX X. X. XXXXXXXX
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") dated as of the 1st day of
February, 2003 by and between Xxxxxx X. X. Xxxxxxxx ("Consultant") and Organic
Sales And Marketing, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company, sells and markets a wide variety of organic products
primarily in the lawn and garden industry and other types of products with
organic origin.
WHEREAS, the Company desires to obtain Consultant's sales, marketing and
management consulting services in connection with the Company's business
affairs, and Consultant is willing to undertake to provide such services as
hereinafter fully set forth:
WHEREAS, the Company and Consultant desire to enter into this Agreement to
reflect the services to be provided by Consultant to the Company in connection
with the operation of its internet sales business.
NOW THEREFORE, the Company and Consultant agree as follows:
1. Services: Consultant shall provide to the Company consulting services
in connection with the operation of the Company's business including but not
limited to: development, promotion and sales, (collectively, the "Services").
The services may supplement functions that are performed by Company employees
and are not in lieu of the services performed by such employees.
2. Provision of Services by Consultant's Affiliates: Consultant may cause
certain of the Services to be provided by "Affiliates" (as hereinafter defined).
That the Services may be provided by Affiliates and their personnel shall not
increase the "Service Fee" (as hereinafter defined) and Consultant shall remain
liable for the performance of its Services by its Affiliates as if Consultant
performed such Services directly. "Affiliate" shall mean as to any person or
entity, any other person or entity that directly or indirectly controls, or is
under common control with, or is controlled by, such person or entity.
3. Service Fee: Consultant shall receive payment for the Services,
rendered by it during the term hereof in the form of 250,000 shares (the
"Shares") of restricted common stock of the Company to be delivered on or as
soon as practicable. The Shares shall be restricted but Consultant may register
said Shares on any appropriate filing form at consultant's expense at any time
pursuant to the Securities Act of 1933, as amended, or in the alternative
register said Shares when and if the Company files its next registration
statement at the expense of the Company. Consultant shall not be obligated in
any way or under any circumstances to advance funds for the costs or expenses of
the Company's operations or obligations. Consultant shall be responsible for all
of its out of pocket expenses incurred in performing its services hereunder,
except for travel expenses incurred in the performance of its duties hereunder,
provided it obtains the prior written consent of the Company.
4. Standard of Care: Consultant shall provide the Services during the term
of this Agreement in a diligent, careful and vigilant manner. The Services are
to be of quality not less than that of services generally performed by
Consultant's employees for the benefit of Consultant. Consultant shall make
available to the Company the full benefit of the judgement, experience and
advice of Consultant's employees.
5. Personnel: Consultant shall employ personnel of Consultant or its
Affiliates as may be necessary in order for Consultant to perform the Services.
Such employment shall be at the expense of Consultant.
6. Term: a) The Company engages the services of the Consultant and the
Consultant accepts such engagement upon the terms and conditions herein set
forth for a term commencing February 1, 2003 and terminating on February 28,
2005 ("Termination Date").
b) Unless otherwise mutually agreed upon in writing, any continuance of
Consultant's services after the Termination Date of this Agreement shall
constitute an engagement at will and may be terminated at any time by either
party upon the delivery of written notice thereof to the other party. Any such
continuing services by the Consultant shall be upon the terms and conditions as
set forth herein except as to the service fee and the payment thereof which will
have to be mutually agreed upon between the parties.
7. Indemnity: a) The Company shall indemnify and hold Consultant free and
harmless from any loss, cost expense, damage, or injury that Consultant may
suffer as a result of their performance or failure of performance of any of the
Company's obligations under this Agreement.
b) Consultant shall indemnify and hold the Company free and harmless from
any loss, cost, expense, damage, or injury that the Company may suffer as a
result of the performance or failure of performance of any of Consultant's
obligations under this Agreement.
8. Confidentiality: Consultant acknowledges and agrees that this Agreement
creates a confidential relationship between Consultant and the Company during
the term of this Agreement and further agrees as follows:
a) Confidential Information shall mean: any information,
materials, agreements and documents regarding the business and operations of the
Company, including but not limited to financial statements and supporting data,
business plans, forecasts and projections, and information concerning concepts,
current and proposed products and product lines, advertising, promotion,
customers, suppliers, licenses, affiliates, distributors, contractors, employees
and management, which may be provided, in writing or orally, by the Company to
the Consultant in the course of the discussions or dealings between the parties.
The term "Confidential Information," however, does not include information (i)
which is generally available to the public through no wrongful act of the
Consultant receiving Confidential Information, (ii) which is already lawfully in
the possession of the Consultant and not subject to
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an existing agreement of confidentiality between the parties or (iii) which is
received from a third party without restriction and without breach of this
Agreement.
b) Consultant recognizes and acknowledges that in the course of the
discussions and negotiations relating to this Agreement, it may obtain
Confidential Information pertaining to the other Company. Consultant recognizes
that such information of the other is unavailable to others and that the
disclosure thereof to persons not authorized by the Company to receive such
information would seriously and adversely affect the business and operations of
the Company. Consultant therefore, covenants and agrees: (i) to keep the
Confidential Information of the Company strictly confidential and secret and to
hold all such information now possessed or hereafter obtained by it in a
fiduciary capacity solely for the benefit of the Company; (ii) to not use any
Confidential Information for any purpose except for the purpose of evaluating
the Company or for dissuasions with the Company regarding the Company, and not
for the purpose of any competitive advantage; (iii) not to disclose to others
any such Confidential Information except as provided herein; and (iv) to use its
best efforts and exercise utmost diligence to protect and safeguard the
confidentiality and secrecy of all such Confidential Information.
c) (i) Dissemination of the Confidential Information by the Consultant
shall be limited to those employees and other representatives or agents of the
Consultant those duties justify their need to know such information.
(ii) In the event that the Consultant is required or becomes legally
compelled to disclose any of the Confidential Information of the Company or that
discussions or negotiations are taking place between the parties, the Consultant
agrees that it will furnish only that portion of such Confidential Information
and other information which it is legally required to disclose, and shall use
its best efforts to obligate any person or entity to whom or which such
Confidential Information is furnished to maintain the confidentiality thereof.
(iii) Promptly upon any request by the Company, the Consultant shall
return to the Company all written material furnished to the Consultant by or on
behalf of the Company pursuant hereto including, without limitation all
financial statements, memoranda, notes, records and/or any other documents
whatsoever, and the Consultant will not retain any copies, extracts or other
reproduction of same, in whole or in part. All documents, notes, memoranda and
other writings whatsoever prepared by or for the Company based on the
Confidential Information shall be destroyed and the Consultant will certify in
writing to the Company that such destruction has occurred.
d) In the event of a breach or threatened breach by the Consultant any of
the obligations herein contained the Consultant acknowledges that the Company
will not have adequate remedy at law and shall be entitled to seek equitable and
injunctive relief to restrain violation of the provisions hereof. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
available to it from such breach or threatened breach, including the recovery of
damages.
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7. Miscellaneous:
a) No Waivers. No failure or delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or future
exercise thereof or the exercise of any other right, power or privilege.
b) No Assignment. Neither party to this Agreement may assign its rights or
obligations hereunder without the written consent of the other party hereto.
c) Amendments. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure from the terms of any provisions to this Agreement
shall be made in writing, signed by the parties hereto, and shall be effective
only in the specific instance and for the specify purpose of which made or
given.
d) Notices. All notices, demands, statements and communications required
or desired to be made hereunder shall be in writing and shall be hand delivered
or sent by responsible overnight carrier or registered or certified mail, return
receipt requested, of intended for the Company, addressed to the Company at:
Organic Sales And Marketing, Inc.
000 Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. X. Xxxxxxxx
and if intended for Consultant, addressed to Consultant:
Xxxxxx Xxxxxxxx
0000 XxXxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
The date of the giving of any such notice shall be the date of its
receipt by its recipient.
e) Captions. The captions of this Agreement are inserted only for the
purpose of convenient reference and do not define, limit or prescribe the scope
or intent of this Agreement or any part hereof.
f) Governing Law. This Agreement shall be governed, and construed in
accordance with, the laws of the State of Rhode Island except that body of law
relating to choice of law.
g) Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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h) Entire Agreement. This Agreement integrates all the terms and
conditions mentioned herein or incidental hereto and supercedes all oral
negotiations and proper writings in respect to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms, conditions
and provisions of this Agreement shall prevail.
9. Relationship: The relationship between the Company and the Consultant
created by this Agreement is that of independent contractor and nothing herein
shall be construed as creating a relationship of employer or employee or
principal or agent between the parties. Consultant agrees that it shall neither
act nor make any representation that it is authorized to act as an agent or
officer of the Company.
10. Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
s:/
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Xxxxxx X. X. Xxxxxxxx
Organic Sales And Marketing, Inc.
By: s:/
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Title: President
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