Exhibit 10.3
AMENDED CONSULTING AGREEMENT
DATED MARCH 15, 2002
THIS CONSULTING AGREEMENT, executed as of the 15th day of March 2002, is
hereby made between OPEN DOOR ONLINE, INC. a New Jersey corporation having
offices at 00 Xxx Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxx 00000 (hereinafter
"ODOL"), and XXXXXX BIRMINGHAM, having an address at 000 Xxxx Xxxxxxxxxx Xxxx,
Xxxxxx, XX 00000 (hereinafter "Consultant").
W I T N E S E T H:
WHEREAS, ODOL desires to obtain certain accounting and administrative
services, and Consultant is willing to provide such services in accordance with
the terms and conditions set forth below,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
herein contained, the parties hereto agree to establish such client/consultant
relationship in accordance with the following terms and conditions set forth
below:
1. SCOPE OF SERVICES PROVIDED
1.1 Consultant is to provide certain accounting and administrative
services in regards to the Company's reporting requirements in accordance with
the terms and conditions hereof (the "Services"), which shall include, but not
necessarily be limited to, the following:
(i) to provide certain accounting services in regards to the
Company's annual 10-K Report and 10-Q Reports.
(ii) to provide the Company with accounting services relating to
General Bookkeeping
(iii) to provide consulting services related to all necessary SEC
filings as required by the Company
(iv) such other services as ODOL's Board of Directors may request
consistent with the above described services.
1.2 The Consultant shall be obligated to render the Services upon the
request of ODOL, in good faith, but shall not be obligated to expend any
specified amount of time in so doing. Consultant may work according to its own
methods and keep its own hours. ODOL shall not control the manner in which
Consultant works while performing under this Agreement. Notwithstanding the
foregoing, inasmuch as the Board of Directors of ODOL has retained the
Consultant to provide significant services and has a duty to the stockholders of
ODOL to supervise the operations of ODOL; Consultant accordingly agrees to
report to and be promptly responsive to redirection, questions, concerns or
comments raised by the Board regarding the Services.
1.3 Consultant shall be responsible for the payment of all fees and
expenses pursuant to Section 1.1 hereof, and any persons Consultant procures to
assist it in performance of the Services. Any such assistants shall be
compensated solely by Consultant and are deemed employees solely of Consultant.
Consultant agrees to be solely responsible for any actions of its assistants,
agents or other employees. Consultant agrees to comply with all applicable
Federal, state and local laws, regulations and ordinances. Notwithstanding the
foregoing, ODOL agrees to provide Consultant with the support, cooperation of
and authority to delegate information requests to ODOL's administrative,
clerical and other employees in connection with the performance of the Services.
1.4 ODOL recognizes and confirms that, in advising ODOL and in
fulfilling its responsibilities under this Agreement, the Consultant will use
and rely on data, material and other information furnished to the Consultant by
ODOL. ODOL acknowledges and agrees that in performing the Services under this
Agreement, the Consultant may rely upon data, material and other information
supplied by ODOL without independently verifying the accuracy, completeness or
veracity of the same. Accordingly, ODOL expressly agrees that all data, material
and other information furnished to the Consultant by ODOL shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2. PAYMENT FOR SERVICES
2.1 As full compensation for the performance of the Services ODOL
shall:
(i) issue to Consultant a total of 500,000 shares of Common Stock to
be registered under an S-8 Registration.
(ii) during the term of this Agreement and retroactive to April 1st,
2001 the Company will pay Consultant a fee of $10,000 for each
10-K Report and $5,000 for each 10-Q Report.
2.2 No fringe benefits or employee benefits shall be paid or given to
Consultant. Consultant shall be solely responsible for the payment of any and
all Federal, state and local income taxes, Social Security taxes and
unemployment taxes that may be generated hereunder. ODOL shall not withhold any
such items and bears no responsibility for any such payments. The Consultant
shall perform the Services hereunder as an independent contractor and not as an
employee of ODOL or an affiliate thereof. It is expressly understood and agreed
to by the parties hereto that the Consultant shall not have authority to act
for, represent or bind ODOL or any affiliate thereof in any manner.
3. TERM
3.1 Consultant shall commence providing the services contemplated
hereunder as of June 1, 2001 and shall continue providing such services until
the earlier of (i) June 1, 2002; or (ii) such time as this Agreement is earlier
terminated pursuant to the provisions of Section 3.2 hereof.
3.2 Either party hereto shall have the option to terminate this
Agreement at any time without cause upon thirty (30) days prior notice to the
other party. The right to terminate this Agreement as provided for in this
Section 3.2 shall be in addition to and not in lieu of any right either party
hereto may have against the other for breach of this Agreement. In the event of
such termination, a prorated portion of the issued Stock must be returned to the
Company on the date of notification of termination.
4. REPRESENTATIONS AND WARRANTIES
4.1 ODOL represents and warrants to the Consultant as follows:
(i) ORGANIZATION AND STANDING OF ODOL. ODOL is a corporation duly
organized, validly existing and in good standing under the laws
of the State of New Jersey and has all requisite power and
authority to enter into this Agreement.
(ii) AUTHORIZATION. ODOL has all requisite power and authority to
execute, deliver and perform this Agreement and to carry out and
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by ODOL has been duly
authorized by all requisite corporate action, and this Agreement
has been duly executed and delivered by ODOL and constitutes the
legal, valid and binding obligation of ODOL, enforceable against
ODOL in accordance with its terms, subject as to enforcement of
remedies to applicable bankruptcy, insolvency, reorganization or
similar laws affecting generally the enforcement of creditors'
rights and the relief of debtors.
(iii) REPORTING COMPANY STATUS. ODOL has a reporting obligation
pursuant to Section 12(g) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and ODOL is current in
the filing of all periodic reports under the Exchange Act.
4.2 The Consultant represents and warrants to ODOL as follows:
(i) AUTHORIZATION. The Consultant has all requisite power and
authority to enter into this Agreement and to comply with the
provisions hereof. The Consultant has all requisite power and
authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by the Consultant has
been duly authorized by all necessary corporate action, and the
Agreement has been duly executed and delivered by the Consultant.
This Agreement constitutes the legal, valid and binding
obligation of the Consultant enforceable against the Consultant
in accordance with its terms, subject as to enforcement of
remedies to applicable bankruptcy, insolvency, reorganization or
similar laws affecting generally the enforcement of creditors'
rights and the relief of debtors.
(ii) NON-CONTRAVENTION. The execution, delivery and performance of
this Agreement by the Consultant will not violate any provision
of law, any rule or regulation of any governmental authority, or
any judgment, decree or order of any court binding on the
Consultant, and will not conflict with or result in any breach of
any of the terms, conditions or provisions or constitute a
default under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the Consultant's
properties or assets, or any material indenture, mortgage, lease,
agreement or other instrument to which the Consultant is a party.
5. DISCLOSURE OF INFORMATION
Upon completion of Consultant's work hereunder, all of its documents,
records, notebooks and other work product containing confidential information
and all copies thereof, will be left with ODOL. Consultant agrees not to
disclose to anyone any confidential information obtained while providing the
Services hereunder, unless Consultant obtains the prior written approval of
ODOL's Board of Directors. Notwithstanding anything herein to the contrary,
regardless of the circumstances under which this Agreement is terminated there
shall be no restrictions on the engagements accepted by Consultant after the
term of this Agreement. Consultant acknowledges and agrees that, because of the
unique and extraordinary nature of the Services, any breach or threatened breach
of any of the provisions of Section 7 hereof will cause irreparable injury and
incalculable harm to ODOL, and ODOL shall, accordingly, be entitled to
injunctive and other equitable relief for such breach or threatened breach and
that resort by ODOL to such injunctive or other equitable relief shall not be
deemed to waive or to limit in any respect any right or remedy which ODOL may
have with respect to such breach or threatened breach. ODOL and Consultant agree
that any such action for injunctive or equitable relief shall be heard in a
state or federal court situate in Rhode Island and each of the parties hereto,
hereby agrees to accept service of process by registered mail and to otherwise
consent to the jurisdiction of such courts.
6. INDEMNIFICATION
6.1 ODOL hereby agrees to indemnify and hold Consultant harmless to
the maximum extent permitted by applicable law and the by-laws of ODOL, against
all losses, claims, liens, damages, liabilities, costs, charges and expenses,
including, without limitation, the costs of investigating, preparing or
defending any action, suit, claim or proceeding or threatened action, suit,
claim or proceeding, whether civil, criminal, administrative or investigative,
including, without limitation, attorneys' fees, incurred or sustained by
Consultant in connection with (i) any misrepresentation of ODOL herein or breach
of any covenant of ODOL; and (ii) any such action, suit, claim or other
proceeding, to which he is, or may be made, a party by reason of its being a
party to and performing under this Agreement; PROVIDED, HOWEVER, that any
action, suit, claim or proceeding shall not be a result of Consultant's finally
adjudicated negligence or willful misconduct.
6.2 Consultant hereby agrees to indemnify and hold ODOL, its officers,
employees, directors, shareholders and agents (collectively "ODOL Indemnitiees")
harmless to the maximum extent permitted by applicable law against all losses,
claims, liens, damages, liabilities, costs, charges and expenses, including,
without limitation, the costs of investigating, preparing or defending any
action, suit, claim or proceeding or threatened action, suit, claim or
proceeding, whether civil, criminal, administrative or investigative, including,
without limitation, attorneys' fees, incurred or sustained by any ODOL
Indemnitee in connection with (i) any misrepresentation of Consultant herein or
breach of any covenant of Consultant, and (ii) any such action, suit, claim or
other proceeding, to which he is, or may be made, a party by reason of
Consultants gross negligence or willful misconduct in the performance of the
Services under this Agreement.
7. MISCELLANEOUS
7.1 NOTICES. All notices, requests, consents and other communications
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by prepaid
telegram, or mailed first-class, postage prepaid, by registered or certified
mail (notices sent by telegram or mailed shall be deemed to have been given on
the date sent), to the parties at their respective address hereinabove set forth
or to such other address as either party shall designate by notice in writing to
the other in accordance herewith.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the local laws of the State of Rhode Island
applicable to agreements made and to be performed entirely in Rhode Island. This
Agreement shall be governed in all respects and for all purposes by the laws of
the State of Rhode Island and the Courts of the State of Rhode Island shall have
exclusive jurisdiction to enforce any Order or award obtained in arbitration. If
any provision of this Agreement shall be declared void or against public policy,
such provision shall be deemed severed from this Agreement and the remaining
provisions shall remain in full force and effect and unmodified.
7.3 ARBITRATION. Except with respect to any proceeding brought under
Section 7 hereof, any controversy, claim, or dispute between the parties,
directly or indirectly, concerning this Agreement or the breach hereof, or the
subject matter hereof, including questions concerning the scope and
applicability of this arbitration clause, shall be finally settled by
arbitration in Kent County, Rhode Island pursuant to the rules then applying of
the American Arbitration Association. The arbitrators shall consist of one
representative selected by ODOL, one representative selected by the Consultant
and one representative selected by the first two arbitrators. The parties agree
to expedite the arbitration proceeding in every way, so that the arbitration
proceeding shall be commenced within thirty (30) days after request therefore is
made, and shall continue thereafter, without interruption, and that the decision
of the arbitrators shall be handed down within thirty (30) days after the
hearings in the arbitration proceedings are closed. The arbitrators shall have
the right and authority to assess the cost of the arbitration proceedings and to
determine how their decision or determination as to each issue or matter in
dispute may be implemented or enforced. The decision in writing of any two of
the arbitrators shall be binding and conclusive on all of the parties to this
Agreement. Should either ODOL or the Consultant fail to appoint an arbitrator as
required by this Section 8.3 within thirty (30) days after receiving written
notice from the other party to do so, the arbitrator appointed by the other
party shall act for all of the parties and its decision in writing shall be
binding and conclusive on all of the parties to this Employment Agreement. Any
decision or award of the arbitrators shall be final and conclusive on the
parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America;
and the application may be made to such court for confirmation of such decision
or award for any order of enforcement and for any other legal remedies that may
be necessary to effectuate such decision or award.
7.4 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by any party that is not embodied in this Agreement,
and not party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
7.5 ASSIGNABILITY. This Agreement, and the various parties' rights and
obligations hereunder may not be assigned. Notwithstanding the foregoing, any
party hereto which is a corporation may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets; and in such
even the rights and obligations of such corporation hereunder shall be binding
on its successors or assigns, whether by merger, consolidation or acquisition of
all or substantially all of the business or assets. This Agreement shall be
binding upon the parties hereto and their respective executors, administrators,
legal representatives, successors and assigns.
7.6 AMENDMENT. This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by all of the parties hereto who are
thereby affected, or in the case of a waiver, by the party waiving compliance.
No superseding instrument, amendment, modification, cancellation, renewal or
extension hereof shall require the consent or approval of any person other than
the parties hereto. The failure of either party at any time or times to require
performance of any provision hereof shall in no matter affect the right at a
later time to enforce the same. No waiver by either party of the breach of any
term or covenant contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
7.7 INSURANCE. Consultant must produce and provide ODOL with evidence
of personal hospitalization insurance and business insurance.
7.8 The rights and obligations under Paragraphs 2, 5, 6, and 7 shall
survive and continue after any expiration or termination of this Agreement and
shall bind the parties and their legal representatives, successors, heirs and
assigns.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the date first written above.
OPEN DOOR ONLINE, INC.
[Seal]
By: /s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx, President
XXXXXX BIRMINGHAM
By: /s/ Xxxxxx Birmingham
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Xxxxxx Birmingham
