EXHIBIT 10.3
CONSULTING AGREEMENT
Agreement made and entered into as of the 5th day of January, 1999
and effective November 10, 1998, by and between Diverse Capital, Inc. a
Florida corporation X.X. Xxx 000000, Xxxxx, Xxxxxxx 00000 (the "Company"),
and Xxxx Entertainment, Inc., a Florida corporation having offices at 0000
Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to secure the services of the Consultant
to provide assistance with respect to corporate finance, evaluations of
possible business partners, and development and implementation of strategic
plans, and the Consultant desires to provide such services to the Company,
subject to and in accordance with the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, and for other valuable
consideration, the receipt of which is hereby acknowledged, it is hereby
agreed as follows:
1. RETENTION. The Company hereby retains the Consultant and the Consultant
hereby accepts such retention by Company, for the period and upon the
terms and conditions set forth in this Agreement.
2. DUTIES.
(a) The Consultant shall serve the Company generally as a consultant to
assist the Company with regard to corporate finance, evaluations of
possible business partners, mergers and acquisitions, the development
and implementation of strategic plans and such other matters relating
to the above as may be requested by the Company from time to time.
(b) The Consultant throughout the Term (as hereinafter defined in
Paragraph 3), shall devote its best efforts to the performance of its
duties hereunder in a manner which will faithfully and diligently
further the business interests of the
1
Company. It is anticipated that over the Term the Consultant will
devote such time to the performance of its duties hereunder as is
reasonably requested by the Company from time to time.
3. TERM. This Agreement shall be in effect for a term (the "Term") of two
(2) years commencing as of the date hereof. Thereafter, this Agreement
may be extended by mutual written agreement of the parties.
4. COMPENSATION.
a) Monthly Retainer. The Company will pay to the Consultant five
thousand ($5,000) dollars per month, due and payable on the 1st
day of each month.
b) Hourly Rate. The Company will pay to the Consultant two hundred
($200) per billable hour for any time in excess of 50 hours in any
calendar month that the Consultant spends working for the Company,
due and payable upon presentation of a detailed invoice.
c) Options. As compensation for services to be rendered by the
Consultant during the Term, the Company is issuing simultaneously
with the execution and delivery of this Agreement, options (the
"Options") to purchase 62,500 shares (the "Option Shares") of the
Company's common stock, par value $0.001 per share (the "Common
Stock"), for an exercise price of $1.00 per share. The Option
Shares will be exercisable for a period commencing from the
effective date first written above and terminating on the fifth
anniversary of the date hereof. Additionally, the Company shall
simultaneously issue to Consultant with the execution and delivery
of this Agreement, options (the "Options") to purchase 62,500
shares (the "Option Shares") of the Company's common stock, par
value $0.001 per share (the "Common Stock"), for an exercise price
of $1.50 per share. The Option Shares will be exercisable for a
period commencing from January 15, 1999 and terminating on January
15, 2004, and the Company shall simultaneously issue to Consultant
with the execution and delivery of this Agreement, options (the
"Options") to purchase 62,500 shares (the "Option Shares") of the
Company's common stock, par value $0.001 per share (the "Common
Stock"), for an exercise price of $2.00 per share. The Option
Shares will be exercisable for a period commencing from January
15, 2000 and terminating on January 15, 2005, and the Company
shall simultaneously issue to Consultant with the execution and
delivery of this Agreement, options (the "Options") to purchase
62,500 shares (the "Option Shares") of the Company's common stock,
par value $0.001 per share (the "Common Stock"), for an exercise
price of $2.50 per share. The Option Shares will be exercisable
for a period commencing
2
from January 15, 2001 and terminating on January 15, 2006, and the
Company shall simultaneously issue to Consultant with the
execution and delivery of this Agreement, options (the "Options")
to purchase 125,000 shares (the "Option Shares") of the Company's
common stock, par value $0.001 per share (the "Common Stock"), for
an exercise price of $3.00 per share. The Option Shares will be
exercisable for a period commencing from January 15, 2002 and
terminating on January 15, 2007. Further, all of the Option Shares
shall contain cashless exercise and no dilution provisions, as
well as piggyback registration rights.
Example:
EXERCISE DATE SHARES EXERCISE PRICE
------------- ------ --------------
January 5, 1999 62,500 $1.00
January 15, 1999 62,500 $1.50
January 15, 2000 62,500 $2.00
January 15, 2001 62,500 $2.50
January 15, 2002 125,000 $3.00
5. REIMBURSEMENT FOR OUT-OF-POCKET EXPENSES. The Company shall reimburse
the Consultant for all reasonable expenses incurred during the Term
which are directly related to the performance of its services
hereunder, provided that such expenses have been previously authorized
in writing by an executive officer of the Company. The Consultant shall
be reimbursed at such times and with such frequency as is the custom of
the Company with regard to reimbursement of employees for expenses. For
such purposes, the Consultant shall submit to the Company periodic
reports of such expenses, including a statement of the related services
performed by the Consultant to which such expenses relate.
6. AUTHORITY TO BIND THE COMPANY. Nothing herein shall imply that the
Consultant is either an employee or agent of the Company, except to
such an extent as might be agreed upon in writing for a specified
purpose. Except as expressly agreed, the Consultant shall not have the
authority to obligate or commit the Company in any manner whatsoever.
7. COMPANY PROPERTY. All advertising, sales, marketing and other materials
or articles or information, including without limitation data
processing reports, sales analyses, invoices, price lists or
information, or any other materials or data
3
of any kind furnished to the Consultant by the Company or developed by
the Consultant for the Company and the Company's direction or for the
Company's use or otherwise in connection with the Consultant's services
hereunder, are and shall remain the sole and confidential property of
the Company, if the Company requests the return of such materials at
any time during or after the Term, the Consultant shall immediately
deliver the same to Company.
8. NON-COMPETITION, TRADE SECRETS
a) During the Term as long as this Agreement is in effect and for a period
of two (2) years thereafter, the Consultant shall not directly or
indirectly induce or attempt to influence any employee of the Company
to terminate his employment with the Company or solicit or divert any
business or customer or supplier from the Company.
b) During the Term and at all times thereafter, the Consultant shall not
use for its benefit, or disclose, communicate or divulge to, or use for
the direct or indirect benefit of any person, firm, association or
company other than the Company, any material referred to in Paragraph 7
above or any information regarding the business methods, business
policies, procedures, techniques, trade secrets, or other knowledge or
processes of or developed by the Company or any names and addresses of
the Company's customers or clients or any data on or relating to past,
present or prospective customers or clients of the Company or any other
confidential information relating to or dealing with the business
operations or activities of the Company, made known to the Consultant
or learned or acquired by the Consultant while retained by the Company,
provided that this provision shall not be construed to restrict the use
or disclosure of any information which (i) is generally publicly known
at the time of its disclosure to, or use by, the Consultant or (ii) is
lawfully received by the Consultant from a third party not bound in a
confidential relationship to the Company or any subsidiary or affiliate
thereof.
c) Any and all writings, inventions, improvements, processes, procedures
and/or techniques which the Consultant may make, conceive, discover or
develop, either solely or jointly with any person or persons, at any
time during the Term, whether during working hours or at any other time
and whether at the request or upon the suggestion of the Company or
otherwise, which relate to or are useful in connection with any
business now or hereafter carried on including developments or
expansions of its present fields of Operations, and are directly and
specifically related to Consultant's duties arising under this
Agreement, and that are reasonably related to a legitimate business
interest of the Company, shall be the sole and exclusive property of
the Company. The Consultant shall promptly make full disclosure to the
Company of all such writings, inventions, improvements, processes,
procedures and techniques and otherwise aid and assist the Company so
that the Company can prepare and present applications
4
for copyright or letters of patents therefore, can secure such
copyright or letter of patent whenever possible, as well as reissues,
renewals, and extension thereof, and can obtain the record title to
such copyright or patents so that the Company shall be the sole and
absolute owner thereof in all countries in which it may desire to have
copyright or patent protection. The Consultant shall not be entitled to
any additional or special compensation or reimbursement regarding any
and all such writings, inventions, improvements, processes, procedures
and techniques, unless agreed upon in writing by the parties.
d) The Consultant acknowledges that the restrictions contained in the
foregoing subparagraphs (a), (b) and (C), in view of the nature of the
business in which the Company is engaged, are reasonable and necessary
in order to protect the legitimate interests of the Company and that
any violation thereof would result in irreparable injuries to the
Company, and the Consultant therefore acknowledges that, in the event
of its violation of any of these restrictions, the Company shall be
entitled to obtain from any court of competent jurisdiction preliminary
and permanent injunctive relief as well as damages and an equitable
accounting of all earnings, profits and other benefits arising form
such violation, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled.
e) If the period of time or the area specified in subparagraph (a) above
should be adjudged unreasonable in any proceeding, then the period of
time shall be reduced by such number of months or the area shall be
reduced by the elimination of such portion thereof or both so that such
restrictions may be enforced in such areas and for such time as
adjudged to be reasonable. If the Consultant violates any of the
restrictions contained in the forgoing subparagraph (a), the
restrictive period shall not run in favor of the Consultant from the
time of the commencement of any such violation until such time as such
violation shall be cured by the Consultant to the satisfaction of the
Company.
9. INDULGENCES. Neither the failure nor any delay on the part of either to
exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same orof any right, remedy, power or privilege
with respect to any occurrence. No waiver shall be effective unless it
is in writing and is signed by the party to have granted such waiver.
10. ASSIGNMENT. Neither party may assign its rights or obligations under
the Agreement without the written consent of the other party.
11. NOTICE. All notices, requests, demands and other communications
required or permitted under this Agreement will be in writing and will
be deemed to have
5
been duly given, made and received when personally delivered, or three
(3) days after deposited in the United States mails, certified mail
return receipt requested, or one (1) day after send by a reputable
overnight courier service, addressed as set forth below:
If to the Company: If to Consultant:
Diverse Capital Corp. Xxxx Entertainment, Inc.
Xxxx X. Xxxx, President 0000 Xxxxxx Xxxx, Xxxxx 000
P.O. Box 172574 Xxxx Xxxxx, Xxxxxxx 00000
Xxxxx, Xxxxxxx 00000 Attn: Xxxxxx Xxxxxx
12. CONTROLLING LAW. This Agreement shall be governed by andconstrued in
accordance with the laws of the State of Florida, notwithstanding any
conflict-of-law doctrine of such state or jurisdiction to the contrary.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties, may not be altered or modified, except in a writing signed
by the party to be charged thereby, and supersedes any and all previous
agreements between the parties.
14. EXECUTION AND COUNTERPARTS. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and
delivered, will be deemed to be an original and all of which taken
together will be considered one and the same Agreement.
15. ARBITRATION. Any dispute, controversy or claim arising out of or in
connection with this Settlement Agreement shall be determined and
settled by arbitration in the County of Hillsborough, State of Florida,
conducted by the American Arbitration Association in accordance with
its then existing rules, regulations, practices and procedures. The
arbitration proceedings shall be conducted before a single neutral
arbitrator selected by the Association in accordance with its then
existing rules, regulations, practices and procedures. Any decision
rendered by the arbitrator shall be final, conclusive and binding upon
the parties to the arbitration and may be enforced by the judgment and
order of a court of proper jurisdiction in the State of Florida for
Hillsborough County and the parties hereto hereby waive any objection
to such jurisdiction or venue in any such proceeding commenced in such
court. In any proceeding between the parties hereto arising out of or
in connection with this Agreement, the prevailing party shall be
entitled to recover its reasonable legal fees and expenses from the
losing party.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
6
COMPANY: Diverse Capital, Corp.
By:
-------------------------------
Xxxx X. Xxxx, President
CONSULTANT: XXXX ENTERPRISES, INC.
By:
--------------------------------
Xxxxxx Xxxxxx, President
7
