AGREEMENT is made active this 3lst day of January, 2006, by and between
Delaware corporation with its principal offices at 4538 S. 140th
Omaha, NE 68137 (“Gabriel”)
individual residing at 2775 Via De La Valle, Suite 205, Del Mar, Ca. 92014
Consultant desires to act as a consultant to Company on the terms and conditions
hereinafter set forth.
THEREFORE, for and in consideration of the mutual exchange of promises herewith,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
is hereby engaged as a general business consultant to Company, and shall report
directly to the President of Company.
is obligated to provide part time efforts toward meeting or exceeding Company’s
goals and objectives.
shall lend any and all subject matter expertise, knowledge, skills and
experience to achieve Company goals and objectives.
consideration for the services to be rendered to Gabriel hereunder, Gabriel
agrees to issue to Consultant or his assignee non-qualified stock options to
purchase up to 250,000 shares of Gabriel’s common stock at an exercise price of
$1.00. Unless otherwise notified in writing by Consultant, Gabriel shall issue
options in the name of Benjamin Financial Limited Partnership (BFLP), a
California Limited Partnership. Such options shall have a term of five years
shall vest in 12 monthly installments (the first 11 of which shall be of 20,833
shares and the final installment of which shall be 20,837 shares). Each
installment shall vest on the 25th
month (beginning February 25,
any time after options have been issued, Gabriel agrees to allow Consultant
BFLP to transfer options to any third party.
shall reimburse Consultant for all reasonable out-of-pocket expenses incurred
while performing services pursuant to this Agreement. Said reimbursement shall
be consistent with Gabriel’s then-current expense reimbursement guidelines for
its own employees. Expenses in excess of $1,000 individually and $5,000 in
aggregate must be pre-approved by the President.
term of this Agreement (the “Term”) shall commence on the date hereof and shall
continue for the term of twelve months, unless terminated or extended as
provided in Section 10. Termination or expiration of this Agreement shall not
extinguish any rights of compensation of Consultant due for the Term as herein
provided, nor any obligations of Consultant to Company arising for activities
to the date of such termination or expiration. Upon termination of this
Agreement for cause, all of Consultant’s options hereunder (vested or unvested)
shall immediately terminate.
Consultant agrees to devote such time and use such commercially reasonable
efforts in the performance of his duties as may be required to skillfully and
completely perform the services requested by Company hereunder. During the
of this Agreement, Consultant agrees that he will not perform any activities
services or accept any other consulting engagements as would be inconsistent
with this Agreement or the relationship between the parties, or as would
interfere with, or present a conflict of interest concerning, Consultant’s
services to Company. Consultant warrants and represents to Company that his
services hereunder will not constitute a breach of any contract, agreement
obligation of Consultant to any other party.
Consultant agrees to provide his part time services as an independent contractor
and not as an employee or officer of Company. Consultant acknowledges and agrees
that he does not have the power, express or implied, to make any contract,
agreement, promise, warranty or representation on behalf of Company in any
manner. Consultant will not hire or engage any third-party consultants, lawyers,
accountants or other advisors on behalf of Company without the prior approval
Company. Consultant acknowledges that Company is not responsible for any federal
or state taxes in respect to payment of his compensation hereunder and that
is his responsibility to calculate and pay tax obligations according to the
requirements of applicable law.
agreement shall be governed by and under the laws of the State of Delaware
without giving effect to conflicts of law principles.
dispute arising under or in any way related to this Agreement shall be brought
in the State or Federal courts located in Nebraska.
provision of this Agreement is held invalid or unenforceable, it shall
adjusted rather than voided, if possible, in order to achieve the intent of
parties to the extent possible. In any event, all other provisions of this
Agreement shall be deemed valid and enforceable to the fullest extent
Modification, or Waiver.
Agreement may not be terminated by Company prior to the expiration of the Term
except for cause and then only upon 30 days prior written notice and payment
all services rendered through the date of such termination delivered with such
notice. For purposes hereof, “cause”
any of the following acts or omissions of Consultant: (i) repeated failure
follow reasonable and lawful written directives of the President or the Board
Directors; (ii) willful misconduct that causes any material injury to the
financial condition or business reputation of Company; (iii) any act of fraud,
theft, misappropriation or embezzlement or other similar conduct with respect
any aspect of the business or assets of the Company; (iv) drug use or alcohol
use that materially interferes with the performance hereunder, or (v) conviction
of a felony, crime involving fraud or misrepresentation, or conviction of any
other crime the effect of which is likely to have a material adverse effect
the business or reputation of Company. No amendment, alteration, or change
this Agreement shall be effective unless in writing and signed by Consultant
Company. The term may be extended after the initial term, subject to
negotiations and written agreement between Consultant and Company. Consultant
may terminate this Agreement at any time upon 30 days prior written notice
Consultant acknowledges that during the course of performance of his consulting
services for Company, Consultant will acquire confidential and non-public
information pertaining to Company and its business, including investment plans
or strategies, trade secrets, customer lists, vendor and customer contacts
the details thereof, pricing policies, operational methodology, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, confidential information of third parties which is subject
a nondisclosure or confidentiality agreement between such third parties and
Company, other information pertaining to the business of Company that is not
publicly available, as well as other information that the Company has indicated
to be confidential or which, by the nature of the information or the
circumstances of its disclosure, the Consultant ought reasonably to consider
confidential (collectively, the “Confidential
Consultant shall not, during the Term, directly or indirectly disclose to any
person, except to Company or its officers and agents or as reasonably required
in connection with Consultant’s duties on behalf of Company, or use, pursue, or
exploit, except on behalf of Company, any Confidential Information acquired
Consultant during the Term. Consultant shall not, at any time after the
termination or expiration of the Term, directly or indirectly disclose to any
person any Confidential Information nor use, pursue, or exploit the Confidential
Information for any purpose whatsoever. If the Consultant is compelled by law
disclose Confidential Information, it shall use its reasonable efforts to give
the Company 10 days’ prior written notice of compelled disclosure and shall
limit such disclosure to the extent legally possible. Upon termination or
expiration of the Term for any reason, or upon Company’s request at any time,
Consultant shall return to Company all documents and materials (including
software) relating directly or indirectly to the Confidential Information.
Consultant acknowledges that all such documents and materials are and shall
remain the property of Company. Consultant shall not reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the Confidential Information and which are provided to Consultant
hereunder. To the extent Consultant breaches this agreement by using Gabriel’s
Confidential Information in a non-permissible way, any inventions, improvements,
or other intellectual property resulting from such non-permissible use will
the property of Gabriel. Consultant will and does hereby automatically assign,
grant and convey to Gabriel any and all rights, title and interest in such
intellectual property, at the time of creation of any such work, without a
requirement of further consideration, and regardless of any right, title or
interest Consultant may have in any such work. Consultant further agrees that
upon request, Consultant will execute a written assignment of such new
intellectual property to Gabriel. The obligations of this Section
survive the termination of this Agreement and continue for 10 years after the
date of last disclosure.
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal and legal representatives, successors
assigns; provided that since this is a contract for personal services of
Consultant, Consultant may not assign this Agreement without the prior written
consent of Company which may be granted or withheld as Company determines in
convenience of the parties hereto, any number of counterparts hereof may be
executed, and each such executed counterpart shall be deemed to be an original
instrument. A facsimile transmission of this Agreement bearing a signature
behalf of a party will be legal and binding on such party.
Section headings contained in this Agreement are for convenience only and shall
in no manner be construed as a part of this Agreement.
the context so requires, the masculine gender shall be construed to include
feminine and/or neuter and vice versa, and the singular shall be construed
include the plural and the plural the singular.
Agreement constitutes the entire agreement of the parties hereto with respect
the subject matter hereof and supersedes and terminates all prior agreements,
arrangements and policies between the parties with respect to the subject matter
notice or other communication required or permitted under this Agreement shall
be in writing and shall be furnished either by personal delivery, overnight
or by certified mail, return receipt requested, to the principal office address
of the party to whom such notice is being sent.
De La Valle Suite 205
South 140th Street
party may change his or its address for notice and communications hereunder
delivery of written notice of such change to the other party.
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in order to protect Gabriel and its business, and expressly agrees that monetary
damages would be inadequate to compensate Gabriel for any breach ____ Consultant
of any covenants and agreements set forth herein. Accordingly, Consultant agrees
and acknowledges that any such violation or threatened violation will cause
irreparable injury to Gabriel and that, in addition to any other remedies that
may be available, in law, in equity or otherwise, Gabriel shall be entitled
obtain both temporary and permanent injunctive relief against the threatened
_______ of this Agreement or the continuation of any such breach, without the
necessity of posting bond or other security (to
the extent that Gabriel is required to post bond or other security, the parties
agree and stipulate that $1,000 is sufficient for such bond or other
proving actual damages.
WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the date first above written.