Consultant Agreement - OnlineFilmSales.com LLC and Spray Point Consulting Ltd.
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 Spray Point Consulting Limited, an Isle of Man
company ("SPRAY POINT").
The parties hereby agree as follows:
1. APPOINTMENT OF CONSULTANT.
a. The Company appoints and retains Spray Point or its nominee as a
consultant to assist the Company by providing the services contemplated by this
Agreement, and Spray Point 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. Spray Point will make Robert Maclean available to perform, on its
behalf, the Consultant Services, and Spray Point will not provide any personnel
to perform the Services other than Robert Maclean without the written consent of
the Company. For the avoidance of doubt, nothing in this agreement shall
restrict Robert Maclean from carrying out his obligations in relation to his
employment with InternetStudios.com U.K. Limited.
c. Spray Point 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 July 1,
2000 (the "EFFECTIVE DATE") and will continue for a period of 29 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 Spray Point 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;
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b. establish and nurture strategic relationships in the
entertainment and financial communities;
c. provide advice to the Company regarding its affairs;
d. prepare and make presentations regarding the business of the
Company to investors, boards, commissions and the general
public;
e. perform other related duties, subject to the direction of
InternetStudios.com, Inc., a Nevada Corporation, (the
"Manager") and the terms and conditions of this Agreement.
During the Term, Spray Point will not permit Robert Maclean 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,
except to InternetStudios.com, U.K. Limited, unless the Company has given its
prior written consent thereto.
4. COMPENSATION.
a. The Company will pay to Spray Point an annual consultant fee of
$142,000 (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 Spray Point's Consultant Fee, the Company may grant
to Spray Point a bonus or bonuses as further compensation and in special
recognition of Spray Point'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.
5. EXPENSES AND BENEFITS.
a. During the Term, the Company agrees promptly to reimburse Spray
Point, in accordance with the Company's policies, for all reasonable expenses
paid or incurred by Spray Point in connection with the performance of Spray
Point'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, Spray Point'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 $600 per month,
payable on the last day of each month up to a total of $7,200 per year (the
"VEHICLE ALLOWANCE"). The Vehicle
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Allowance shall be used solely to defray the vehicle operation and maintenance
expenses incurred by Robert Maclean in performing the Consultant Services.
d. The Company will reimburse Spray Point for expenses incurred
relating to legal and tax advice provided to Spray Point by a tax attorney or
accountant for the purposes of concluding on contracts and documents by and
between the Company and Spray Point.
e. The Company will pay Spray Point a bonus of $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 Spray Point with, or Spray Point 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 Spray Point 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 Spray Point's nominee;
b. At the option of the Company, in the event of the Permanent
Disability (as defined below) of Spray Point's nominee, by written notice to
Spray Point. As used herein, and subject to applicable law, the term "PERMANENT
DISABILITY" will mean a physical or mental incapacity or disability which
renders Spray Point'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 Spray Point's nominee or a licensed physician retained by
the Company for the purposes of making such determination;
c. At the option of the Company, by written notice to Spray Point upon
the occurrence of any one or more of the following events:
i. any action by Spray Point'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 Spray Point's nominee involving a
felony or crime involving moral turpitude;
iii. gross neglect or willful refusal by Spray Point'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 Spray Point's nominee to comply
with any valid and legal directive of the Manager
consistent with the Consultant Services; or
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iv. a breach by Spray Point 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 Spray
Point.
d. At the option of Spray Point, 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 Spray Point's express
prior written consent:
i. the Company's assignment to Spray Point's nominee of
any duties, responsibilities or status with the
Company that, when compared to the Consultant
Services immediately prior thereto, are degrading to
Spray Point's nominee or inconsistent with Spray
Point'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 Spray Point's nominee to any place
other than the primary location at which Spray
Point'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 Spray Point to the Company; or
v. within thirty (30) days if the Company will have
failed to pay Spray Point the Consultant Fee in
accordance with Section 3 and such failure will not
have been cured within thirty (30) days of such
failure.
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 Spray Point 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 Spray Point prior to the expiration of the Term for any reason, the
Company will have no liability or obligation to Spray Point 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 Spray Point of
the Consultant Services for any reason other than as set forth in Section 6(d),
Spray Point will not be entitled to any additional compensation; provided,
however, Spray Point (or Spray Point's legal representatives) will be entitled
to receive any and all other benefits to which Spray Point will be entitled
pursuant to the
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terms of any agreements or arrangements of the Company in which Spray Point is a
participant or to which Spray Point 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 Spray Point
pursuant to Section 6(d), then the following will apply as additional
compensation in lieu of any further payments to Spray Point 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. Spray Point 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. Spray Point will receive any accrued and unpaid
vacation pay or other benefits to which Spray Point's
nominee has become entitled prior to the Date of
Termination; and
iii. Spray Point will receive any accrued and unpaid bonus
to which Spray Point 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 Spray Point 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 Spray Point did not exercise a right of rescission as provided
for in the Confidential Agreement. In consideration of the payments provided for
in this Agreement, Spray Point 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 Spray Point because of
the termination of the Consultant Services. Spray Point understands that all
payments made by the Company under this Agreement may be subject to certain
deductions for applicable taxes.
e. Upon the termination of Consultant Services for any reason, Spray
Point 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 Spray Point terminates the Consultant Services,
then upon either such event the Company will continue at its sole expense to
provide the Spray Point'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 Spray Point had continued to provide the Consultant Services
pursuant to this Agreement, for a period ending upon the termination of the
Term.
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8. CONFIDENTIAL INFORMATION.
a. Spray Point recognizes and acknowledges that during the course of
Spray Point providing Consultant Services to the Company, Spray Point 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 Spray
Point); and (iii) is either (A) marked "Confidential Information," "PROPRIETARY
INFORMATION" or other similar marking, (B) known by Spray Point to be considered
confidential and proprietary by the Company, or (C) from all the relevant
circumstances should reasonably be assumed by Spray Point 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.)
b. Both during the Term and at all times thereafter, all Confidential
Information which Spray Point 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 Spray
Point'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,
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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. Spray Point
covenants and agrees that:
a. During the Non-Compete Period (as hereinafter defined), Spray Point
will not, directly or indirectly, in any Geographic Area (as hereinafter
defined): (i) engage for Spray Point'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, Spray
Point may own, directly or indirectly, solely as a passive investment,
securities of any such entity which are traded on any national securities
exchange if Spray Point (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, Spray Point 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 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 Spray Point, such nonsolicitation agreement of the
Spray Point 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 Spray
Point is not engaged by the Company, Spray Point 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 Spray Point or any person or
entity (other than the Company) in which Spray Point is a partner, shareholder,
director, officer, employee, principal, member, manager, agent, trustee,
consultant or engaged in any other relationship or capacity.
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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.
Spray Point 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 Spray Point'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 Spray Point (or any
associated party deriving such benefits) as a result of any such breach of Spray
Point'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 arise out of any such breach of Spray Point'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 Spray Point or its Representatives.
11. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL RIGHTS.
a. Spray Point 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 Spray Point as
the result of providing other consultant services to another party after the
termination of the Consultant Services, or otherwise.
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b. The provisions of this Agreement, and any payment provided for
hereunder, will not reduce any amounts otherwise payable, or in any way diminish
Spray Point'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 Spray Point, 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 Spray
Point 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
Spray Point's legal representatives. If Spray Point's nominee should die while
any amounts are still payable to Spray Point hereunder, all such amounts, unless
otherwise provided herein, will be paid in accordance with the terms of this
Agreement to Spray Point.
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 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 SPRAY POINT. The Company will, to the maximum extent
permitted by law, indemnify Spray Point 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 Spray Point'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 Spray Point 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 Spray Point or its nominee, or Spray Point's knowing
and intentional
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violation of third party rights. The Company will advance to the Spray Point the
expenses incurred in defending any such proceedings to the maximum extent
provided by law; provided however, that the Spray Point 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 Spray
Point's rights under this Agreement, Spray Point, if the prevailing party, will
be entitled to recover from the Company any expenses for attorneys' fees and
disbursements reasonably incurred by Spray Point.
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 Spray Point 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 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
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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:
----------------------
----------------------
Attn:
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SPRAY POINT CONSULTING LIMITED.
By:
---------------------------------
Name:
-----------------------------
Its:
------------------------------
Address:
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Attn:
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Exhibit 10.26
SCHEDULE "A"
CONFIDENTIAL AGREEMENT
This CONFIDENTIAL AGREEMENT ("AGREEMENT") is made in the Province of
British Columbia by and between SPRAY POINT CONSULTING LIMITED ("SPRAY POINT")
and ONLINEFILMSALES.COM, LLC, a Nevada corporation (the "COMPANY").
RECITALS
A. Spray Point has been retained by the Company.
B. The Company and Spray Point are parties to that certain Consultant
Agreement, dated ___________, 2000 (the "CONSULTANT AGREEMENT"). Spray
Point's consultant services have been terminated under circumstances
that entitle Spray Point 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 Spray Point.
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. Spray Point's consultant
services are terminated effective end of day, ________________. The parties
acknowledge and agree that Spray Point will not be a consultant of the Company
after this date, notwithstanding Spray Point'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, Spray Point waives and releases all of Spray Point'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: Spray
Point'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 securities of the Company, severance pay,
compensation, attorney's fees, liquidated
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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. Spray Point 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
Spray Point to disclose Confidential Information to Spray Point's attorneys,
spouse, accountants, or tax planners, provided that if Spray Point discloses
Confidential Information to any such person, Spray Point 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 Spray Point and the Company. Any
disclosure of Confidential Information by any such person will be considered a
disclosure by Spray Point.
(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. Spray Point 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. Spray Point 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 Spray Point voluntarily aid,
assist or cooperate with any such claims, or lawsuits; provided, however, that
this paragraph will not be construed to prevent Spray Point from giving truthful
testimony in response to direct questions asked pursuant to a lawful subpoena
during any future legal proceedings.
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6. TIME TO CONSIDER AGREEMENT. Spray Point understands that Spray Point
may take twenty-one (21) calendar days to decide whether to sign this Agreement.
7. RIGHT TO REVOKE. Spray Point understands that Spray Point has the
right to revoke this Agreement for any reason within seven (7) calendar days
after Spray Point signs it. Spray Point understands that this Agreement will not
become effective or enforceable unless and until Spray Point has not revoked it
and the applicable revocation period has expired.
8. EXPIRATION OF OFFER. The Company's offer to Spray Point that is
reflected in this Agreement will expire at 5:00 P.M. ON ____________, unless
Spray Point executes the Agreement and the Company receives it prior to that
time, or unless the Company revokes the offer prior to Spray Point'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 Spray Point'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. Spray Point acknowledges that Spray Point has been
paid all consultant fees and other compensation to which it was or is entitled
to.
10. RETURN OF COMPANY PROPERTY. Spray Point 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 Spray
Point agrees to remove from any personal computer all data files containing
Company information and return to the Company.
11. CONFIDENTIALITY AGREEMENT. Spray Point hereby reaffirms Spray
Point's obligations and commitments contained in any consultant agreement and
invention and non-disclosure agreements that Spray Point 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. Spray Point 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. Spray Point acknowledges that the
Company has advised Spray Point to consult with Spray Point's own attorney prior
to executing this Agreement. Spray Point further acknowledges that Spray Point
has had a full opportunity to consider this Agreement, that Spray Point has had
a full opportunity to ask any questions that Spray Point may have concerning
this Agreement, and that in deciding whether to sign this Agreement, Spray Point
has not relied upon any statements made by the Company or its attorneys, other
than the statements made in this Agreement. Spray Point further acknowledges
that Spray Point has read and understands the contents of this Agreement and
that Spray Point
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executes this Agreement knowingly and voluntarily and with the opportunity to
obtain independent legal advice of Spray Point's own choice.
14. AUTHORITY. Spray Point represents and warrants that Spray Point has
the authority to enter into this Agreement, and that Spray Point 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated at their respective signatures below.
DATED this __________ day of, _____ 2000. SPRAY POINT CONSULTING LTD.
By:
-------------------------
Its:
------------------------
DATED this___________ day of, ______ 2000 ONLINEFILMSALES.COM, LLC
By:
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Its:
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Exhibit 10.26
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,
SPRAY POINT CONSULTING LIMITED
Per:
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