Exhibit 1
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 Praires Blvd.,
Suite 30, in the City of St. Leonard, Province of
Quebec, H1R 1A5, herein duly represented by Mr. Peter
Deros, its President, duly authorized for these
purposes as he so declares,
hereinafter referred to as the "COMPANY"
AND:
ERIC BOYD, businessman, residing and domiciled at 190
Centenial, Beaconsfield, Quebec, H9W 2J9
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 May 30, 2001 and shall terminate on May
30, 2003, unless otherwise extended or terminated as provided for under this
Agreement.
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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
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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 seven hundred fifty thousand
(750,000) shares of its common stock as fully paid and
non-assessable, to be issued upon the execution of this
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agreement (par value $.001 per share). In addition, the
Company shall grant to the Consultant an option to purchase
an aggregate of seven hundred fifty thousand (750,000)
shares of common stock of the Company (the "optioned
shares") on the following terms:
Number of Shares Exercise Price
---------------- --------------
250,000 $1.00 per share
250,000 $2.00 per share
250,000 $3.00 per share
All options are exercisable commencing July 15, 2001 and
expire three (3) years thereafter or July 15, 2004
(hereinafter referred to as the "Expiration Date").
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
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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 forteiture 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: The Company shall reimburse Consultant for all
business related expenses incurred by Consultant on behalf of the Company during
the term of this Agreement, however, any expenses in excess of $500.00 shall be
approved in advance by the Company.
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
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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.
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.
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 (Peter Deros), Consultant
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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
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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 30th day of May, 2001.
DONINI INC.
Per: /s/ PETER DEROS /s/ ERIC BOYD
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Peter Deros, President ERIC BOYD
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