EXHIBIT 4.5
CONSULTING AGREEMENT
BY AND BETWEEN:
DONINI, INC.
a New Jersey corporation, duly incorporated and
validly existing according to law, having a
registered office at 4555 des Grandes Prairies Blvd.,
Suite 30, in the City of St. Xxxxxxx, Province of
Quebec, H1R 1A5, herein duly represented by Xx. Xxxxx
Xxxxx, its President, duly authorized for these
purposes as he so declares,
hereinafter referred to as the "COMPANY"
AND:
Xxxx Xxxxxxx of New York, NY
000 Xxxx 00xx Xxxxxx, 0X, Xxx Xxxx, XX 00000
hereinafter referred to as the "CONSULTANT"
WHEREAS the Company seeks to hire Consultant and Consultant wishes to
consult with the Company, it is hereby agreed:
1. CONSULTANT: The Company hires Consultant as an independent
business advisor and Consultant hereby accepts consulting with the Company upon
the terms and conditions hereinafter set forth.
2. TERM OF CONSULTING AGREEMENT: INITIAL TERM: The term of this
Consulting Agreement shall commence on July 15, 2004 and shall terminate on July
15, 2005, unless otherwise extended or terminated as provided for under this
Agreement.
3. CONSULTANT DUTIES:
A. SCOPE: In that capacity, Consultant shall provide
introductions to business contacts, brokerage firms,
Investment Bankers and consultants to the Company and
shall also provide such additional services, and advice to
the President and CEO of the Company, on all matters
relating to the business and finances of the Company and
its shareholder relations as from time to time requested.
B. LOYAL AND CONSCIENTIOUS PERFORMANCE: Consultant agrees
that to the best of his ability and experience he will at
all times loyally and conscientiously perform all of the
obligations required of him either expressly or implicitly
by the terms of this Agreement.
C. COMPETITIVE ACTIVITIES: During the term of this agreement
Consultant shall not, directly or indirectly participate
in any business that is in competition in any manner
whatsoever with the business of the Company.
D. TRADE SECRETS: (i) The parties acknowledge and agree that
during the term of this Agreement and in the course of the
discharge of this consulting hereunder, Consultant shall
have access to and become acquainted with information
concerning the operation of the Company, including without
limitation, customers, financial statements and data,
personnel, sales, planning, marketing and other
information that is owned by the Company and regularly
used in the operation of the Company's business and that
this information constitutes the Company's trade secrets.
(ii) Consultant agrees that he shall not disclose any such
trade secrets, directly or indirectly, to any other person
or use them in any way, either during the term of this
agreement or at any time thereafter, except as is required
in the course of his consulting with the Company. The
unauthorized use or disclosure of any of the Company's
trade secrets obtained by Consultant during his consulting
with the Company shall constitute unfair competition.
(iii) Consultant further agrees that all files, records,
documents, equipment and similar items relating to
Company's business, whether prepared by Consultant or
others, are and shall remain exclusively the property of
the Company.
E. PERIODIC REPORTS: Consultant shall provide periodic
reports to the Company as to his performance of projects
assigned to him, at least on a quarterly basis. Failure to
provide reports shall constitute a breach of this
Agreement.
4. COMPENSATION:
A. STOCK AND OPTIONS: As compensation for the services
provided and to be provided pursuant to the terms hereof,
the Company shall issue to the Consultant an option to
purchase an aggregate of one million (1,000,000) shares of
common stock of the Company, par value ($.001 per share),
The consultant shall pay the company .001 per share for
the "optioned shares". Of the 1,000,000 shares optioned
500,000 shall not be issued prior to September 15, 2004.
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B. COMPLIANCE WITH SECURITIES LAWS: The issuance by the
Company and the resale by the Consultant shall be subject
to compliance with all applicable U.S. federal and state
securities laws, regulations and policies, and may only be
issued by the Company or resold by the Consultant pursuant
to a valid registration statement or applicable exemption.
Consultant confirms and acknowledges that in the event the
shares of common stock issued to him are registered with
the U.S. Securities and Exchange Commission pursuant to
Form S-8 no shares will be sold without a proper
reoffering memorandum and no proceeds from the resale of
said shares will be used as a capital investment in the
Company, nor shall it be used to promote the market value
of the Company's outstanding common stock, nor shall
proceeds be used for any other purpose contrary to law. A
violation of this provision shall constitute a breach of
this Agreement by the Consultant, and shall result in the
forfeiture of all remaining shares owned by the
Consultant, as well as other applicable remedies under the
law.
C. TAX WITHHOLDING AND INDEPENDENT CONTRACTOR STATUS:
Consultant hereby acknowledges and warrants that neither
he nor any of his employees or agents, will be treated as
an employee of the Company with respect to any services
rendered to the Company for any purpose whatsoever, nor
shall the Company be required to pay any U.S. or Canadian
Social Security, Federal or State or Provincial
Unemployment taxes or income tax withholding at any source
for Consultant or his employees, Consultant being solely
responsible for all such taxes, if any.
5. EXPENSE ALLOWANCE: Consultant shall be solely responsible for
all business related expenses incurred by Consultant on behalf
of the Company during the term of this Agreement.
6. TERMINATION:
A. TERMINATION FOR CAUSE: The Company reserves the right to
terminate this Agreement if Consultant willfully breaches
or habitually neglects his consulting duties which he is
asked to perform under the terms of this Agreement
including but not limited to failure to provide reports as
required hereunder, or by the President of the Company, or
commits such acts of dishonesty, fraud, misrepresentation
or other acts of moral turpitude as would prevent the
effective performance of his consulting. Consultant agrees
that he will not engage in any act which would constitute
a violation on any state or federal securities laws of the
U.S. or Canadian federal or Provincial securities laws or
regulations. In the event of any termination for cause,
all outstanding unexercised stock options shall be deemed
void as of the date of termination, and no sales be made
of the optioned shares except upon prior notice and
approval by the Company and its securities council.
B. TERMINATION WITHOUT CAUSE: Notwithstanding any provision
of this Agreement, if, during the initial term of this
Agreement or any extension thereof, the Company terminates
this Agreement without cause or materially breaches this
Agreement, the Company shall deliver to the Consultant,
without setoff, all options granted to him under this
agreement, which shall be deemed immediately vested with
the Consultant.
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C. TERMINATION BY CONSULTANT: Consultant may terminate his
obligations under this Agreement by giving the Company at
least 30 days notice in advance in which event all options
previously vested, but unexercised shall remain valid,
however Consultant shall not be entitled to any unvested
options. If control in the Company should in any way
change from the current President & CEO (Xxxxx Xxxxx),
Consultant may terminate this agreement immediately at his
option, and all options granted to him pursuant to the
terms hereof shall be deemed immediately vested.
7. CONSULTANT'S OBLIGATION AFTER TERMINATION: SOLICITATION OF
CUSTOMERS: Consultant agrees that for a period of one year (1) immediately
following the termination of his consulting agreement with the Company,
Consultant shall not directly or indirectly make known to any person, firm, or
corporation the names or addresses of any of the customers of the Company or any
other information pertaining to them, or call on, solicit, take away, or attempt
to call on, solicit, or take away any of the acquaintances during his term of
consulting with the Company, either for himself or for any other person, firm,
or corporation.
8. MEDIATION: Any controversy between the parties involving the
construction or application of any terms, provisions, or conditions of this
agreement, shall on the written request of either party served on the other, be
submitted to mediation before a neutral third party of the American Arbitration
Association (AAA). The parties shall share the cost of mediation jointly.
9. ENTIRE AGREEMENT: This agreement supersedes any and all other
agreements, either written or oral, between the parties hereto with respect to
the consulting of the Consultant to the Company and contains all of the
covenants and agreements between the parties with respect to such consulting for
the Company in any manner whatsoever. Both parties must sign any modification to
this agreement. The parties shall execute such further documents, agreements and
instruments as may be necessary in order to give full force and effect to the
foregoing and shall obtain such authorizations, approvals, permits and consents
as may be required by law or otherwise, including any approvals of the Board of
Directors of any corporate entities.
10. PARTIAL INVALIDITY: If any part of this agreement shall be
determined by a court or mediator to be invalid, the remainder hereof shall be
construed as if the invalid portion has been omitted.
11. WAIVER: No waiver of any of the provisions of this agreement
shall be deemed or shall constitute a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
12. U.S. DOLLARS: Unless otherwise provided herein, all monetary
amounts herein are in currency of the United States of America.
13. LAW GOVERNING AGREEMENT: This agreement shall be governed by
and construed in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed this 8th day of July, 2004.
DONINI INC.
Per: /s/ XXXXX XXXXX /s/ XXXX XXXXXXX
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Xxxxx Xxxxx, President Xxxx Xxxxxxx
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