Consultant Agreement - OnlineFilmSales.com LLC and Carraway Management Inc.
ONLINEFILMSALES.COM, LLC
CONSULTANT AGREEMENT
THIS CONSULTANT AGREEMENT ("AGREEMENT"), is made effective as of April
1, 2000, by and between OnlineFilmSales.com, LLC, a Delaware limited liability
company (the "COMPANY"), and Carraway Management Inc., a British Columbia
company ("CARRAWAY").
The parties hereby agree as follows:
1. APPOINTMENT OF CONSULTANT.
a. The Company appoints and retains Carraway or its nominee as a
consultant to assist the Company by providing the services contemplated by this
Agreement, and Carraway has agreed to accept the appointment of consultant
contemplated by the Agreement and to provide services to the Company upon the
terms and conditions contained in this Agreement and for the consideration
provided for in this Agreement.
b. Carraway will make Mark Rutledge available to perform, on its
behalf, the Consultant Services, and Carraway will not provide any personnel to
perform the Services other than Mark Rutledge without the written consent of the
Company.
c. Carraway and its nominee will provide the Consultant Services to the
best of their abilities in a diligent and timely manner.
2. TERM.
a. The term of this Agreement (the "TERM") will commence on April 1,
2000 (the "EFFECTIVE DATE") and will continue for a period of 32 consecutive
months from and after the Effective Date, unless sooner terminated as
hereinafter provided.
b. The Term may be extended for two (2) successive one year periods by
mutual written agreement of the parties hereto. If either party intends not to
renew this Agreement upon the expiration of the Term then in effect, such party
will give the other party notice of such intention not less than ninety (90)
days prior to the expiration of such Term.
3. SERVICES.
The Company engages Carraway as a consultant to assist the Company with the
management of its business during the term of this Agreement and to provide
ongoing consulting services to the Company, including the following
(collectively, the "CONSULTANT SERVICES"):
a. provide direction in the short and long range plans for the
business of the Company;
b. gather, interpret and prepare data for studies, reports and
recommendations for the business of the Company;
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CONSULTANT AGREEMENT PAGE 2
c. provide advice to the Company regarding its business affairs;
d. prepare and make presentations regarding the business of the
Company to investors, boards, commissions and the general
public;
e. oversee the Company's legal counsel to ensure that all
applicable laws and regulations governing the affairs of the
Company are complied with in a timely manner;
f. compose, input and edit a variety of correspondence, reports,
memoranda and other material regarding the business of the
Company requiring judgement as to content, accuracy and
completeness; and
g. perform other related duties, subject to the direction of the
Manager and the terms and conditions of this Agreement.
Also during the Term, Carraway's nominee will serve as the Company's
Vice-President, Business Affairs and as Corporate Secretary (or in such other
capacity as is mutually agreed upon from time to time), with the duties and,
subject to the terms of this Agreement, powers, customarily associated with such
position. Carraway's nominee will report directly to the manager of the Company
(the "MANAGER"). Carraway's nominee will faithfully perform for the Company the
duties of these offices and such other duties as may be designated from time to
time by the Manager consistent with the position of Vice-President and Corporate
Secretary (or in such other capacity as is mutually agreed upon from time to
time).
During the Term, Carraway will not permit Mark Rutledge to, either directly or
indirectly, individually or through a corporation or other entity, as principal,
agent, shareholder, employee or in any other manner whatsoever, carry on or be
engaged in or be concerned with or interested in or advise any other business
that is in competition with the Company as provided for in Section 9, unless the
Company has given its prior written consent thereto.
4. COMPENSATION.
a. The Company will pay to Carraway an annual consultant fee of
US$192,000 (the "CONSULTANT FEE"). The Consultant Fee will be subject to review
at any time during the Term but no later than at the conclusion of each year of
the term of this Agreement and, as a result thereof, may be increased (but not
decreased) at the sole discretion of the Manager.
b. In addition to Carraway's Consultant Fee, the Company may grant to
Carraway a bonus or bonuses as further compensation and in special recognition
of Carraway's services to the Company. Any such bonus or bonuses may be granted
at the sole discretion of the Manager and at such times and in such manner, as
the Manager may deem appropriate. The Company will no less frequently than
annually consider the propriety of a discretionary bonus.
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CONSULTANT AGREEMENT PAGE 3
5. EXPENSES AND BENEFITS.
a. During the Term, the Company agrees promptly to reimburse Carraway,
in accordance with the Company's policies, for all reasonable expenses paid or
incurred by Carraway in connection with the performance of Carraway's services
to the Company hereunder upon presentation of evidence in form of receipts
satisfactory to the Company substantiating claimed expenditures.
b. During the Term, Carraway's nominee will be entitled to participate
in and enjoy the benefits of any health, life, disability, retirement, pension,
profit-sharing, group insurance, or other similar plan or plans which may be
instituted by the Company for the benefit of its senior executive officers
generally, upon such terms as may be therein provided.
c. The Company will provide a vehicle allowance of US$600 per month,
payable on the last day of each month up to a total of US$7,200 per year (the
"VEHICLE ALLOWANCE"). The Vehicle Allowance shall be used solely to defray the
vehicle operation and maintenance expenses incurred by Mark Rutledge in
performing the Consultant Services.
d. The Company will reimburse Carraway for expenses incurred relating
to legal and tax advice provided to Carraway by a tax attorney or accountant for
the purposes of concluding on contracts and documents by and between the Company
and Carraway.
e. The Company will pay Carraway a bonus of US$50,000 upon the closing
of the Company's next round of financing completed within 6 months of the date
of this Agreement.
f. The Company will provide Carraway with, or Carraway will be
reimbursed for, the following business-related equipment and services: Laptop
computer, fax machine, cell phone/usage, fax/internet (DSL) line at home, PDA
(Palm Pilot).
g. The Company will reimburse Carraway for any reasonable parking
expenses when performing the Consultant Services under this Agreement.
6. TERMINATION. The Consultant Services may be terminated prior to the
expiration of the Term only as follows:
a. Automatically in the event of the death of Carraway's nominee;
b. At the option of the Company, in the event of the Permanent
Disability (as defined below) of Carraway's nominee, by written notice to
Carraway. As used herein, and subject to applicable law, the term "PERMANENT
DISABILITY" will mean a physical or mental incapacity or disability which
renders Carraway's nominee unable substantially to render the services required
hereunder without a reasonable accommodation for a period of one hundred twenty
(120) days in any period of 365 days, as certified by either the physician
appointed by Carraway's nominee or a licensed physician retained by the Company
for the purposes of making such determination;
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CONSULTANT AGREEMENT PAGE 4
c. At the option of the Company, by written notice to Carraway upon the
occurrence of any one or more of the following events:
i. any action by Carraway's nominee constituting
malfeasance, fraud, embezzlement or dishonesty in the
course of providing the Consultant Services;
ii. any conviction of or guilty plea or plea of NOLO
CONTENDERE by Carraway's nominee involving a felony
or crime involving moral turpitude;
iii. gross neglect or willful refusal by Carraway's
nominee to perform the Consultant Services for a
period of thirty (30) days following notice thereof
by the Company;
iii. failure or refusal by Carraway's nominee to comply
with any valid and legal directive of the Manager
consistent with the Consultant Services; or
iv. a breach by Carraway of any material obligation under
this Agreement, if such breach is not curable or, if
curable, is not cured within thirty (30) days after
written notice thereof by the Company to Carraway.
d. At the option of Carraway, by written notice to the Company at any
time upon the occurrence of any of the following events unless, in the case of
subsections (i), (ii) or (iii), the event occurs with Carraway's express prior
written consent:
i. the Company's assignment to Carraway's nominee of any
duties, responsibilities or status with the Company
that, when compared to the Consultant Services
immediately prior thereto, are degrading to
Carraway's nominee or inconsistent with Carraway's
nominee's qualifications;
ii. any failure by the Company to effect the assumption
of this Agreement by any successor or assign of the
Company;
iii. the relocation or Carraway's nominee to any place
other than the primary location at which Carraway's
nominee performs the Consultant Services as of the
Effective Date;
iv. within one hundred twenty (120) days after the
occurrence of a material breach of any material
obligation under this Agreement by the Company, if
such breach is not curable or, if curable, is not
cured within thirty (30) after written notice thereof
by Carraway to the Company; or
v. within thirty (30) days if the Company will have
failed to pay Carraway the Consultant Fee in
accordance with Section 3 and such failure will not
have been cured within thirty (30) days of such
failure.
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CONSULTANT AGREEMENT PAGE 5
e. The Company may terminate this Agreement at any time without cause,
subject to the Company's obligations under Section 7(c).
f. Any termination by the Company or the Carraway pursuant to this
Section will be effected by written notice of termination given to the other,
and such termination will be effective upon the giving of such notice.
7. ADDITIONAL COMPENSATION UPON TERMINATION.
a. In the event of the Company's termination of the Consultant Services
provided by Carraway prior to the expiration of the Term for any reason, the
Company will have no liability or obligation to Carraway other than as
specifically set forth in this Section 7.
b. Upon the termination by the Company of the Consultant Services
pursuant to Section 6(a), 6(b), or 6(c), or the termination by Carraway of the
Consultant Services for any reason other than as set forth in Section 6(d),
Carraway will not be entitled to any additional compensation; provided, however,
Carraway (or Carraway's legal representatives) will be entitled to receive any
and all other benefits to which Carraway will be entitled pursuant to the terms
of any agreements or arrangements of the Company in which Carraway is a
participant or to which Carraway is a party.
c. Upon the termination of the Consultant Services either by the
Company for any reason other than pursuant to Sections 6(a), 6(b) or 6(c),
including, without limitation, pursuant to Section 6(e), or by Carraway pursuant
to Section 6(d), then the following will apply as additional compensation in
lieu of any further payments to Carraway and the continuation of any Company
paid benefits for periods subsequent to the date of the termination of the
Consultant Services (the "DATE OF TERMINATION"):
i. Carraway will be entitled to receive a lump sum
payment equal to one and one-half times the
Consultant Fee in effect on the Date of Termination;
ii. Carraway will receive any accrued and unpaid vacation
pay or other benefits to which Carraway's nominee has
become entitled prior to the Date of Termination; and
iii. Carraway will receive any accrued and unpaid bonus to
which Carraway has become entitled to prior to the
Date of Termination.
d. The additional compensation provided for in this Section 7 will be
paid in a lump sum eight (8) days after Carraway signs and returns to the
Company (i) a Confidential Agreement in the form of Schedule "A" hereto
("CONFIDENTIAL AGREEMENT"), and (ii) a letter in the form of Schedule "B" hereto
confirming that Carraway did not exercise a right of rescission as provided for
in the Confidential Agreement. In consideration of the payments provided for in
this Agreement, Carraway expressly waives any rights under any formal or
informal, written or unwritten, severance policy, severance program or severance
plan that would otherwise provide benefits or payments to Carraway because of
the termination of the Consultant Services. Carraway understands that all
payments made by the Company under this Agreement may be subject to certain
deductions for applicable taxes.
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CONSULTANT AGREEMENT PAGE 6
e. Upon the termination of Consultant Services for any reason, Carraway
will immediately surrender to the Company all notes, data, sketches, drawings,
manuals, documents, records, data bases, programs, blueprints, memoranda,
specifications, customer lists, financial reports, equipment and all other
physical forms of expression incorporating or containing any Confidential
Information (as defined in Section 8 hereof), it being distinctly understood
that all such writings, physical forms of expression and other things are
exclusive property of the Company.
f. If the Company terminates without cause the Consultant Services
under this Agreement, or if the Carraway terminates the Consultant Services,
then upon either such event the Company will continue at its sole expense to
provide the Carraway's nominee and his family with such medical, dental, vision
and life insurance coverage as the Company would be obligated to provide
hereunder if the Carraway had continued to provide the Consultant Services
pursuant to this Agreement, for a period ending upon the termination of the
Term.
8. CONFIDENTIAL INFORMATION.
a. Carraway recognizes and acknowledges that during the course of
Carraway providing Consultant Services to the Company, Carraway will have access
to Confidential Information. "CONFIDENTIAL INFORMATION" means all information or
material not publicly known about the Company or relating to any of its
respective products, services or any phase of its operations, business or
financial affairs which (i) gives the Company some competitive business
advantage or the opportunity of obtaining such advantage or the disclosure of
which could be detrimental to the interests of the Company; (ii) is owned by the
Company or in which the Company has an interest (including information
conceived, originated, discovered or developed in whole or in part by Carraway);
and (iii) is either (A) marked "Confidential Information," "PROPRIETARY
INFORMATION" or other similar marking, (B) known by Carraway to be considered
confidential and proprietary by the Company, or (C) from all the relevant
circumstances should reasonably be assumed by Carraway to be confidential and
proprietary to the Company. Confidential Information includes, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing): trade secrets, inventions,
drawings, file data, documentation, diagrams, specifications, know-how,
processes, formulas, models, flow charts, software in various stages of
development, source codes, object codes, research and development procedures,
test results, marketing techniques and materials, marketing and development
plans, price lists, pricing policies, business plans, information relating to
customers and/or suppliers' identities, characteristics and agreements,
financial information and projections and employee files. Confidential
Information also includes any information described above which the Company
obtains from another party and which the Company treats and/or has an obligation
to treat as proprietary or designates as Confidential Information, whether or
not owned or developed by the Company. Confidential Information will not include
any information which is or becomes (i) generally available to the public other
than as a result of disclosure in violation of this Agreement, or (ii) generally
known in the industry in which the Company is or may become involved other than
as a result of disclosure in violation of this Agreement. (The term "COMPANY,"
as used in this Section 8, means not only OnlineFilmSales.com, LLC, but also any
company, partnership or entity which, directly or indirectly, controls, is
controlled by or is under common control with OnlineFilmSales.com, LLC.)
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CONSULTANT AGREEMENT PAGE 7
b. Both during the Term and at all times thereafter, all Confidential
Information which Carraway or any of its directors, officers, employees, agents
or representatives, including, without limitation, attorneys and accountants
(collectively, the "REPRESENTATIVES") may now possess, may obtain during or
after the Term, or may create prior to the end of the Term will be held
confidential by the Representatives, and the Representatives will not (nor will
the Representatives assist any other person to do so), directly or indirectly,
(i) reveal, report, publish or disclose such Confidential Information to any
person, firm, corporation, association or other entity for any reason or purpose
whatsoever (other than in the course of carrying out Carraway's duties hereunder
or as expressly authorized by the Company), (ii) render any services to any
person, firm, corporation, association or other entity to whom any such
Confidential Information, in whole or in part, has been disclosed or is
threatened to be disclosed by or at the instance of a Representative, or (iii)
use such Confidential Information except for the benefit of the Company and in
the course of providing Consultant Services to the Company; provided, however
that the foregoing will not apply to the extent any Representative is required
to disclose any Confidential Information by applicable law or legal process so
long as the Representative promptly notifies the Company of such pending
disclosure and consults with the Company prior to such disclosure concerning the
advisability of seeking a protective order or other means of preserving the
confidentiality of the Confidential Information.
c. All memoranda, notes, lists, records and other documents (and all
copies thereof) constituting Confidential Information made or compiled by a
Representative or made available to a Representative during or after the Term
will be the Company's property, will be kept confidential in accordance with the
provisions of this Section 8 and will be delivered to the Company at any time on
request and in any event upon the termination of the Consultant Services for any
reason.
9. COVENANT AGAINST COMPETITION AND NON-SOLICITATION. Carraway covenants
and agrees that:
a. During the Non-Compete Period (as hereinafter defined), Carraway
will not, directly or indirectly, in any Geographic Area (as hereinafter
defined): (i) engage for Carraway's own account in any business directly or
indirectly competitive with the Company Business (as hereinafter defined); (ii)
render any services in any capacity to any person or entity (other than the
Company or its Affiliates) engaged in any business directly or indirectly
competitive with the Company Business; or (iii) acquire an interest in any
person or entity engaged in any business directly or indirectly competitive with
the Company Business (other than the Company) as a partner, shareholder,
director, officer, employee, principal, manager, member, agent, trustee,
consultant or in any other relationship or capacity; provided, however, Carraway
may own, directly or indirectly, solely as a passive investment, securities of
any such entity which are traded on any national securities exchange if Carraway
(A) is not a controlling person of, or a member of a group which controls, such
entity, and (B) does not, directly or indirectly, own 1% or more of any class of
securities of such entity.
b. During the Non-Compete Period, Carraway will not, without the prior
written consent of the Company, directly or indirectly, knowingly solicit or
encourage any employee of the Company or any of its Affiliates to leave the
employment of the Company or any of its Affiliates, hire any employee who has
left the employment of the Company or any of its
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CONSULTANT AGREEMENT PAGE 8
Affiliates within one year of the termination of such employee's employment with
the Company or any of its Affiliates, or solicit any customer, client or account
of the Company. However, (a) if this Agreement is terminated without cause by
the Company, or is terminated for cause by the Carraway, such nonsolicitation
agreement of the Carraway will thereupon terminate, otherwise (b) the covenants
set forth in this Section 9 will survive any termination of this Agreement.
c. During any portion of the Non-Compete Period during which Carraway
is not employed by the Company, Carraway will not, in any Geographic Area,
directly or indirectly, knowingly solicit or encourage any customer or client of
the Company to engage the services of Carraway or any person or entity (other
than the Company) in which Carraway is a partner, shareholder, director,
officer, employee, principal, member, manager, agent, trustee, consultant or
engaged in any other relationship or capacity.
d. If any provision of Sections 8 or 9 (the "RESTRICTIVE COVENANTS")
are held to be unenforceable because of the scope, duration, area of its
applicability or otherwise, it is the intention of the parties that the court
making such determination will modify such scope, duration or area, or all of
them, and that such provision will then be applicable in such modified form.
Carraway hereby waives any and all right to attack the validity of the
Restrictive Covenants on the grounds of breadth of their geographic scope or the
length of their term.
e. As used herein:
i. "AFFILIATE" will mean any entity directly or
indirectly controlling, controlled by, or under
common control with the Company and any entity in
which the Company is a general partner, member,
manager or holder of greater than a 10% common
equity, partnership or membership interest.
ii. "COMPANY BUSINESS" will mean the business of the
Company at the time a violation of this Section 9 is
alleged to occur or, if such alleged occurrence is
after the Consultant Services are terminated, the
business of the Company at the time such the
Consultant Services terminate.
iii. "GEOGRAPHIC AREA" will mean the world.
iv. "NON-COMPETE PERIOD" will mean the period during
which the Consultant Services are provided to the
Company and for an additional period of one year
following the termination of the Consultant Services.
10. ENFORCEMENT BY INJUNCTION. Since the Company will be irreparably
damaged if the provisions of Sections 8 or 9 are not specifically enforced, the
Company will be entitled to (i) an injunction or any other appropriate decree of
specific performance (without the necessity of posting any bond or other
security in connection therewith) restraining any violation or non-fulfillment
of Carraway's or a Representative's covenants under Sections 8 or 9, (ii)
damages in an amount equal to all compensation, profits, monies, accruals,
increments or other benefits derived or received by Carraway (or any associated
party deriving such benefits) as a result of any such breach of Carraway's or a
Representative's covenants under Sections 8 or 9, and (iii) indemnification
against any other losses, damages, costs and expenses, including actual
attorneys' fees and court costs, which may be incurred by the Company and which
result from or
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CONSULTANT AGREEMENT PAGE 9
arise out of any such breach of Carraway's or a Representative's covenants under
Sections 8 or 9. Such remedies will not be exclusive and will be in addition to
any other remedy, at law or in equity, which the Company may have for any breach
or threatened breach of Sections 8 or 9 by Carraway or its Representatives.
11. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS.
a. Carraway will not be required to mitigate damages or the amount of
any payment provided for under this Agreement by seeking other agreements for
consultant services or otherwise, nor will the amount of any payment provided
for under this Agreement be reduced by any compensation earned by Carraway as
the result of providing other consultant services to another party after the
termination of the Consultant Services, or otherwise.
b. The provisions of this Agreement, and any payment provided for
hereunder, will not reduce any amounts otherwise payable, or in any way diminish
Carraway's existing rights, or rights which would accrue solely as a result of
the passage of time, under any benefit or incentive plan or arrangement, plan or
arrangement to receive securities of the Company, consultant agreement or other
contract, plan or arrangement of the Company.
12. SUCCESSORS.
a. The Company will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company by agreement in form
and substance satisfactory to Carraway, to expressly, absolutely and
unconditionally assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession or assignment had taken place. Any failure of the Company to
obtain such agreement prior to the effectiveness of any such succession or
assignment will be a material breach of this Agreement and will entitle Carraway
to terminate the Consultant Services as provided for in Section 6 hereof. As
used in this Agreement, the "COMPANY" will mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 11 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
b. This Agreement will inure to the benefit of and be enforceable by
Carraway's legal representatives. If Carraway's nominee should die while any
amounts are still payable to Carraway hereunder, all such amounts, unless
otherwise provided herein, will be paid in accordance with the terms of this
Agreement to Carraway.
c. In the event of a liquidation of the Company, the payment provided
for hereunder will be made before any property or asset of the Company is
distributed to any holder of Common Stock.
13. NOTICES. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement will be in
writing and will be deemed to have been duly given when personally delivered or
mailed by first class registered mail, return receipt requested, or by
commercial courier or delivery service, or by facsimile, addressed to the
parties
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CONSULTANT AGREEMENT PAGE 10
at the addresses set forth below their signatures hereto (or at such other
address as any party may specify by notice to all other parties given as
aforesaid).
14. INDEMNIFICATION TO CARRAWAY. The Company will, to the maximum extent
permitted by law, indemnify Carraway and its nominee against expenses (including
reasonable attorney's fees, judgments, fines, settlements and other amounts
actually and reasonably incurred) in connection with any proceedings arising by
reason of the fact that the Carraway's nominee is or was an officer, consultant,
representative, or agent of the Company and was performing his duties in
accordance with this Agreement or was acting in accordance with the directions
of the Manager; provided however, that the Company will have no obligation to
indemnify the Carraway or its nominee for such expenses, judgments, fines,
settlements or other amounts which are finally judicially determined to have
resulted from illegal, bad faith or knowingly fraudulent conduct on the part of
the Carraway or its nominee, or Carraway's knowing and intentional violation of
third party rights. The Company will advance to the Carraway the expenses
incurred in defending any such proceedings to the maximum extent provided by
law; provided however, that the Carraway is not entitled to indemnification in
accordance with the preceding sentence. The Company's obligations under this
Section will not cease upon termination of this Agreement.
15. LEGAL FEES. In the event that any legal action is required to enforce
Carraway's rights under this Agreement, Carraway, if the prevailing party, will
be entitled to recover from the Company any expenses for attorneys' fees and
disbursements reasonably incurred by Carraway.
16. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement (including, without limitation, any controversy as to the
arbitrability of any dispute) will be settled exclusively by arbitration to be
held in Vancouver, British Columbia, before a single arbitrator in accordance
with the rules of the rules of the British Columbia International Commercial
Arbitration Center then in effect. Each party will bear its own fees and
expenses in connection with the arbitration and 50% of the fees and expenses of
the British Columbia International Commercial Arbitration Center and the cost of
any transcript. Judgment may be entered on the arbitrator's award in any court
having jurisdiction, and the parties consent to the jurisdiction of the British
Columbia courts for that purpose.
17. MISCELLANEOUS.
a. This writing constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified, amended or
terminated except by a written agreement signed by all of the parties hereto.
b. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Carraway and the Company. No waiver by a party hereto at any time
of any breach by another party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party will be deemed a
waiver of similar or dissimilar provisions or conditions.
c. If any provision of this Agreement will be held invalid or
unenforceable, such invalidity or unenforceability will attach only to such
provision and will not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this
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CONSULTANT AGREEMENT PAGE 11
Agreement will be carried out as if any such invalid or unenforceable provision
were not contained herein, unless the invalidity or unenforceability of such
provision substantially impairs the benefits of the remaining portions of this
Agreement.
d. The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
e. This Agreement may be executed in two or more counterparts, all of
which taken together will be deemed one original.
f. This Agreement will be governed by and construed in accordance with
the laws of the Province of British Columbia, without giving effect to any
choice or conflict of laws provision or rule that could cause the application of
the domestic substantive laws of any other jurisdiction.
g. This Agreement will not confer any rights or remedies upon any
person or entity other than the parties hereto and their respective successors
and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ONLINEFILMSALES.COM, LLC
By:
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Name:
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Its:
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Address:
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Attn:
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CARRAWAY MANAGEMENT INC.
By:
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Name:
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Its:
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Address:
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Attn:
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Exhibit 10.27
SCHEDULE "A"
CONFIDENTIAL AGREEMENT
This CONFIDENTIAL AGREEMENT ("AGREEMENT") is made in the Province of
British Columbia by and between _____________ ("CARRAWAY") and
ONLINEFILMSALES.COM, LLC, a Nevada corporation (the "COMPANY").
RECITALS
A. Carraway has been retained by the Company.
B. The Company and Carraway are parties to that certain Consultant
Agreement, dated ___________, 2000 (the "CONSULTANT AGREEMENT").
Carraway's consultant services have been terminated under circumstances
that entitle Carraway to receive certain additional compensation
pursuant to Section 7 of the Consultant Agreement (the "ADDITIONAL
COMPENSATION").
C. Pursuant to Section 7(e) of the Consultant Agreement, payment of the
Additional Compensation is conditioned upon the execution of this
Agreement by Carraway.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants, and provisions contained in this Agreement, the parties
agree and declare as follows:
1. TERMINATION OF CONSULTANT SERVICES. Carraway's consultant services
are terminated effective end of day, ________________. The parties acknowledge
and agree that Carraway will not be a consultant of the Company after this date,
notwithstanding Carraway's continued receipt of certain sums as described in the
Consultant Agreement.
2. WAIVER AND RELEASE OF CLAIMS. In consideration of the payment of the
Additional Compensation, Carraway waives and releases all of Carraway's existing
rights to, any relief of any kind from the Company, its affiliates,
subsidiaries, parent corporations, divisions, directors, officers, shareholders,
employees, agents, attorneys, successors, and assigns (collectively, the
"COMPANY'S AFFILIATES"), including, without limitation, all claims, demands,
liabilities, obligations, causes, and causes of action of whatever kind or
nature, whether known or unknown, past or present, suspected or unsuspected,
including, without limitation, those that arise out of or that relate to:
Carraway's relationship with the Company; the termination of the consultant
services provided to the Company; all statements or actions of the Company's
Affiliates; all claims for wrongful discharge; all claims for relief or other
benefits under any federal, state, or local statute, ordinance, regulation, or
rule of decision; all claims that the Company's Affiliates engaged in conduct
prohibited on any basis under any federal, state, or local statute, ordinance,
regulation, or rule of decision; and, other than claims with respect to the
Additional Compensation, all claims for wages, stock, stock options, or other
rights with respect to equity
<PAGE>
CONSULTANT AGREEMENT PAGE 2
securities of the Company, severance pay, compensation, attorney's fees,
liquidated damages, punitive damages, costs, expense reimbursements, and
disbursements (collectively "CLAIMS").
3. MUTUAL CONFIDENTIALITY.
a. GENERAL STANDARD. The parties intend that the terms and
conditions upon which this matter has been settled, including the provisions of
this Agreement ("CONFIDENTIAL INFORMATION"), will be forever treated as
confidential. Carraway and the Company will not disclose Confidential
Information to any person or entity at any time, except as provided herein.
b. EXCEPTIONS.
(1) It will not be a violation of this Agreement for
Carraway to disclose Confidential Information to Carraway's attorneys, spouse,
accountants, or tax planners, provided that if Carraway discloses Confidential
Information to any such person, Carraway must simultaneously inform that person
that the person must keep the information strictly confidential and that the
person may not disclose the information to any other person without the advance
written consent of Carraway and the Company. Any disclosure of Confidential
Information by any such person will be considered a disclosure by Carraway.
(2) It will not be a violation of this Agreement for the
Company to disclose Confidential Information to its attorneys, auditors,
insurers, accountants, tax planners, or its affiliates, divisions, directors,
officers, shareholders, employees, representatives, other agents who have a
legitimate reason to obtain Confidential Information in the course of performing
their duties or responsibilities for the Company, others in connection with the
Company's business, as required by law, and to the extent the Company deems such
disclosure necessary or advisable in connection with it disclosures or reports
or under applicable securities laws, other laws, and accounting principles.
(3) It will not be a violation of this Agreement for a party
to give truthful testimony in response to direct questions asked pursuant to an
enforceable court order obtained after providing notice to the other party,
which order pays due regard to the concerns for confidentiality expressed by the
parties herein.
4. NON-DISPARAGEMENT. Carraway will not disparage, defame, or besmirch
the reputation, character, image or services of the Company, its affiliates,
divisions, parent corporations, directors, officers, shareholders, employees or
agents.
5. CLAIMS INVOLVING THE COMPANY. Carraway will not recommend or suggest
to any potential claimants or plaintiffs or their attorneys or agents that they
initiate claims or lawsuits against the Company or any of its affiliates,
divisions, parent corporations, directors, officers, shareholders, employees,
agents, successors, or assigns, nor will Carraway voluntarily aid, assist or
cooperate with any such claims, or lawsuits; provided, however, that this
paragraph will not be construed to prevent Carraway from giving truthful
testimony in response to direct questions asked pursuant to a lawful subpoena
during any future legal proceedings.
<PAGE>
CONSULTANT AGREEMENT PAGE 3
6. TIME TO CONSIDER AGREEMENT. Carraway understands that Carraway may
take twenty-one (21) calendar days to decide whether to sign this Agreement.
7. RIGHT TO REVOKE. Carraway understands that Carraway has the right to
revoke this Agreement for any reason within seven (7) calendar days after
Carraway signs it. Carraway understands that this Agreement will not become
effective or enforceable unless and until Carraway has not revoked it and the
applicable revocation period has expired.
8. EXPIRATION OF OFFER. The Company's offer to Carraway that is
reflected in this Agreement will expire at 5:00 P.M. ON ____________, unless
Carraway executes the Agreement and the Company receives it prior to that time,
or unless the Company revokes the offer prior to Carraway's acceptance.
9. FULL COMPENSATION. The payments made and the other consideration
provided under the Consultant Agreement constitute full compensation for and
extinguish all of Carraway's Claims including, but not limited to, all Claims
for attorneys' fees, costs, and disbursements, and all Claims for any type of
legal or equitable relief. Carraway acknowledges that Carraway has been paid all
consultant fees and other compensation to which it was or is entitled to.
10. RETURN OF COMPANY PROPERTY. Carraway agrees to promptly return to
the Company all property that belongs to the Company, including without
limitation all equipment, supplies, documents, files, computer disks, and
Carraway agrees to remove from any personal computer all data files containing
Company information and return to the Company.
11. CONFIDENTIALITY AGREEMENT. Carraway hereby reaffirms Carraway's
obligations and commitments contained in any consultant agreement and invention
and non-disclosure agreements that Carraway executed.
12. NO ADMISSION OF WRONGDOING. This Agreement does not constitute an
admission that any person or entity violated any local, state or federal
ordinance, regulation, ruling, statute, rule of decision, or principle of common
law, or that any person or entity engaged in any improper or unlawful conduct or
wrongdoing. Carraway will not characterize this Agreement or the payment of any
money or other consideration in accord with the Consultant Agreement as an
admission or indication that any person or entity engaged in any improper or
unlawful conduct or wrongdoing.
13. ACKNOWLEDGMENT OF UNDERSTANDING. Carraway acknowledges that the
Company has advised Carraway to consult with Carraway's own attorney prior to
executing this Agreement. Carraway further acknowledges that Carraway has had a
full opportunity to consider this Agreement, that Carraway has had a full
opportunity to ask any questions that Carraway may have concerning this
Agreement, and that in deciding whether to sign this Agreement, Carraway has not
relied upon any statements made by the Company or its attorneys, other than the
statements made in this Agreement. Carraway further acknowledges that Carraway
has read and understands the contents of this Agreement and that Carraway
executes
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CONSULTANT AGREEMENT PAGE 4
this Agreement knowingly and voluntarily and with the opportunity to obtain
independent legal advice of Carraway's own choice.
14. AUTHORITY. Carraway represents and warrants that Carraway has the
authority to enter into this Agreement, and that Carraway has not assigned any
Claims to any person or entity.
15. INVALIDITY. In the event that a court of competent jurisdiction
determines that any provision of this Agreement is invalid, illegal, or
unenforceable in any respect, such a determination will not affect the validity,
legality, or enforceability of the remaining provisions of this Agreement, and
the remaining provisions of this Agreement will continue to be valid and
enforceable.
16. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties and their respective representatives,
successors, and assigns.
17. ENTIRE AGREEMENT. This Agreement and the Consultant Agreement
represent the entire agreement of the parties with respect to their subject
matters, and this Agreement and the Consultant Agreement supersede any
agreement(s) previously entered into with respect to the subject matters hereof
and thereof, except where expressly specified herein or therein. Neither party
has made any representations, warranties, inducements or oral agreements except
as expressly set forth herein and therein. The parties may not change, modify,
or rescind this Agreement except in a writing, signed by both parties. Any
attempt at oral modification of this Agreement will be void and of no effect.
18. HEADINGS. The descriptive headings of the paragraphs and
subparagraphs of this Agreement are intended for convenience only, and do not
constitute parts of this Agreement.
19. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
20. GOVERNING LAW. This Agreement will be construed in accord with, and
any dispute or controversy arising from any breach of this Agreement will be
governed by, the laws of the Province of British Columbia. In the event of any
judicial proceeding to enforce any provision of this Agreement, the prevailing
party will recover its reasonable attorneys' fees, expenses, and cost of
investigation.
<PAGE>
CONSULTANT AGREEMENT PAGE 5
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated at their respective signatures below.
DATED this ___________ day of, _____ 2000. CARRAWAY MANAGEMENT INC.
By:
---------------------------
Its:
--------------------------
DATED this __________ day of, ______ 2000 ONLINEFILMSALES.COM, LLC
By:
---------------------------
Its:
--------------------------
<PAGE>
Exhibit 10.27
SCHEDULE "B"
Date:
-------------------------
PERSONAL AND CONFIDENTIAL
Human Resources Manager
OnlineFilmSales.com, LLC
1351 4th Street, Suite 227
Santa Monica, California 90401
Dear _________:
This is to confirm that I have not revoked and will take no action to
revoke the Confidential Agreement that I executed on ______________ with
OnlineFilmSales.com, LLC
Sincerely,
CARRAWAY MANAGEMENT INC.
Per: