DONALD HEJMANOWSKI CONSULTING AGREEMENT
EX
10.5
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
THIS
CONSULTING AGREEMENT (the “Agreement”) is made and entered into effective the
12th day of May 2008 by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the “Consultant”), whose
principal place of business ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and DSE
▇▇▇▇▇▇▇, Inc . (DSE) (the “Client”) whose principal place of business is ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WHEREAS,
Consultant is in the business of providing services for shareholder information
and public relations; and
WHEREAS, the
Client deems it to be in its best interest to retain Consultant to render to the
Client such services as may be needed; and
WHEREAS,
Consultant is ready, willing and able to render such consulting and advisory
services to Client.
NOW
THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
|
1.
|
Consulting
Services. The client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such
retention.
|
It is
acknowledged and agreed by the Client that Consultant carries no professional
licenses, and is not rendering legal advice or performing accounting services,
nor acting as an investment advisor or brokerage/dealer within the meaning of
the applicable state and federal securities laws. The services of
Consultant shall not be Exclusive nor shall Consultant be required to render any
specific number of hours or assign specific personnel to the Client or its
projects.
Consultant
agrees to serve as Representative to provide and/or perform the following,
hereafter collectively referred to as the “Services”:
|
A.
|
Complete
an analysis of DSE’s business and industry, and follow with a
comprehensive background report that summarizes DSE’s corporate profile
(the “Corporate Profile”) that shall be available for distribution to
business partners, or others, as DSE shall deem
appropriate.
|
Page 1 of
7
|
B.
|
Work
with DSE, its counsel or other representatives to revise and/or draft any
other documents that may be necessary in DSE’s efforts to secure the
presentation of the company.
|
|
C.
|
Introduce
DSE to potential market professionals, including broker-dealers, mutual
funds, and other institutional investors; providing the Company with
advice regarding these
introductions.
|
|
D.
|
Best
Efforts. CONSULTANT
shall devote such time and effort, as it deems commercially reasonable and
adequate under the circumstances to the affairs of DSE to render the
consulting services contemplated by this agreement. CONSULTANT
is not responsible for the performance of any services, which may be
rendered hereunder without DSE providing the necessary information in
writing prior thereto, nor shall DSE include any services that constitute
the rendering of any legal opinions or performance of work that is in the
ordinary purview of the Certified Public Accountant. CONSULTANT
cannot guarantee results on behalf of DSE, but shall pursue all reasonable
avenues available through its network of contacts. It is
understood that a portion of the compensation paid hereunder is being paid
by DSE to have CONSULTANT remain available to advise it on transactions on
an as-needed basis.
|
|
2.
|
Independent
Contractor. Consultant agrees to perform its consulting
duties hereto as an independent contractor. Nothing contained
herein shall be considered to as creating an employer-employee
relationship between the parties to this Agreement. The Client
shall not make social security, worker’s compensation or unemployment
insurance payments on behalf of Consultant. The parties hereto
acknowledge and agree that Consultant cannot guarantee the results or
effectiveness of any of the services rendered or to be rendered by
Consultant. Rather, Consultant shall conduct its operations and
provide its services in a professional manner and in accordance with good
industry practice. Consultant will use its best efforts and
does not promise
results.
|
|
3.
|
Time, Place
and Manner of Performance. The Consultant shall be
available for advice and counsel to the officers and directors of the
Client as such reasonable and convenient times and places as may be
mutually agreed upon. Except as aforesaid, the time, place and
manner of performance of the services hereunder, including the amount of
time to be allocated by the Consultant to any specific service, shall be
determined at the sole discretion of the
Consultant.
|
|
4.
|
Term of
Agreement. The term of this Agreement shall be Twelve
(12) months, commencing on the date of this Agreement, subject to prior
termination as hereinafter
provided.
|
|
5.
|
Compensation.
In providing the foregoing services, Consultant shall be responsible for
allcosts incurred except the Client will be responsible for mailing out
due diligence requests.Client shall pay Consultant for its services
hereunder as follows: to arrange for 1,200,000 common shares of Client’s
stock to be issued to Consultant within 6 months of signing of this
agreement. When
issued, the common stock will be duly authorized, validly issued,
fully paid,
non-cancelable and non-assessable shares of the common stock of the
Company.
|
Page 2 of
7
|
6.
|
Client’s
Representations. The Client represents that it is in
compliance with all applicable Securities and Exchange Commission
reporting and accounting requirements and all applicable requirements of
the NASD or any stock
exchange.
|
|
7.
|
REPRESENTATIONS,
WARRANTIES AND
COVENANTS
|
SEC
Legal Compliance. CONSULTANT hereby represents that it has in
place policies and procedures relating to, and addressing, with the commercially
reasonable intent to ensure compliance with, applicable securities laws, rules
and regulations, including, but not limited to:
|
1.
|
The
use, release or other publication of forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act
|
|
2.
|
Disclosure
requirements outlined in Section 17B of the Exchange Act regarding the
required disclosure of the nature and terms of Consultant’s relationship
with DSE in any and all CONSULTANT literature or other communication(s)
relating to DSE, including, but not limited to: Press Releases, letters to
investors and telephone or other personal communication(s) with potential
or current investors.
|
CONSULTANT
further acknowledges that by the very nature of its relationship with DSEit
will, from time to time, have knowledge of or access to material non-public
information(as such term is defined by the Exchange Act) CONSULTANT hereby
agrees and covenants that:
|
1.
|
CONSULTANT
will not make any purchases or sales in the stock of DSE based on such
information.
|
|
2.
|
CONSULTANT
will utilize its commercially reasonable efforts to safeguard and prevent
the dissemination of such information to third parties unless authorized
in writing by DSE to do so as may be necessary in the performance of its
Services under this Agreement.
|
|
3.
|
DSE
will not, in any way, utilize or otherwise include such information, in
actual form or in substantive content, in its analysis for, preparation of
or release of any CONSULTANT literature or other communication(s) relating
to DSE, including, but not limited to: Press Releases, letters to
investors and telephone or other personal communication(s) with potential
or current investors.
|
Page 3 of
7
|
8.
|
Non-Circumvention. DSE
hereby irrevocably agrees not to circumvent, avoid, bypass, or obviate,
directly or indirectly, the intent of this
Agreement
|
|
9.
|
Termination.
|
|
(a)
|
Consultant’s
relationship with the Client hereunder may be terminated for any reason
whatsoever, at any time, by either party, upon 120 days written prior
notice.
|
|
(b)
|
This
Agreement shall automatically terminate upon the dissolution, bankruptcy
or insolvency of the Client or
Consultant.
|
|
(c)
|
This
Agreement may be terminated by either party upon giving written notice to
the other party if the other party is in default hereunder and such
default is not cured within thirty (30) days of receipt of written notice
of such default.
|
|
(d)
|
Consultant
and Client shall have the right and discretion to terminate this Agreement
should the other party in performing their duties hereunder, violate any
law, ordinance, permit or regulation of any governmental entity, except
for violations which either singularly or in the aggregate do not have or
will not have a material adverse effect on the operations of the
Client.
|
|
(e)
|
In
the event of any termination hereunder all shares or funds paid to the
Consultant through the date of termination shall be fully earned and
non-refundable and the parties shall have no further responsibilities to
each other except that the Client shall be responsible to make any and all
payments if any, due to the Consultant through the date of the termination
and the Consultant shall be responsible to comply with the provisions of
section 10 hereof.
|
|
10.
|
Work
Product. It is agreed that all information and materials
produced for the Client shall be the property of the Consultant, free and
clear of all claims thereto by the Client, and the Client shall retain no
claim of authorship
therein.
|
|
11.
|
Confidentiality. The
Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates. The Consultant will not, during the term of this
Agreement, disclose, without the prior written consent or authorization of
the Client, any of such information to any person, for any reason or
purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the
disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the
person to whom the information is to be disclosed or in compliance with
the terms of a judicial order or administrative
process.
|
Page 4 of
7
|
12.
|
Conflict of
Interest. The Consultant shall be free to perform
services for other persons. The Consultant will notify the
Client of its performance of consultant services for any other person,
which could conflict with its obligations under the
Agreement. Upon receiving such notice, the Client may terminate
this Agreement or consent to the Consultant’s outside consulting
activities; failure to terminate, this Agreement within seven (7) business
days of receipt of written notice of conflict shall constitute the
Client’s ongoing consent to the Consultant’s outside consulting
services.
|
|
13.
|
Disclaimer of
Responsibility for Act of the Client. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by the
Client as a consequence of such decisions, made by the Client or any
affiliates or subsidiaries of the
Client.
|
|
14.
|
Indemnification.
|
(a) The
client shall protect, defend, indemnify and hold Consultant and its assigns and
attorneys, accountants, employees, officers and director harmless from and
against all losses, liabilities, damages, judgments, claims, counterclaims,
demands, actions, proceedings, costs and expenses (including reasonable
attorneys’ fees) of every kind and character resulting from, relating to or
arising out of (a) the inaccuracy, non-fulfillment or breach of any
representation, warranty, covenant or agreement made by the Client herein, or
(b) negligent or willful misconduct, occurring during the term thereof with
respect to any of the decisions made by the Client (c) a violation of state or
federal securities laws.
(b) The
Consultant shall protect, defend, indemnify and hold Client and its assigns and
attorneys, accountants, employees, officers and director harmless from and
against all losses, liabilities, damages, judgments, claims, counterclaims,
demands, actions, proceedings, costs and expenses (including reasonable
attorneys’ fees) of every kind and character resulting from, relating to or
arising out of (a) the inaccuracy, non-fulfillment or breach of any
representation, warranty, covenant or agreement made by the Consultant herein,
or (b) negligent or willful misconduct, occurring during the term thereof with
respect to any of the decisions made by the Consultant (c) a violation of state
or federal securities laws.
|
15.
|
Notices. Any
notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered or sent by registered or certified
mail, or by Federal Express or other recognized overnight courier to the
principal office of each
party.
|
Page 5 of
7
|
16.
|
Waiver of
Breach. Any waiver by either party or a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by any
party.
|
|
17.
|
Assignment. This
Agreement and the right and obligations of the Consultant hereunder shall
not be assignable without the written consent of the
Client.
|
|
18.
|
Applicable
Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and under and
pursuant to the laws of the State of California and that in any action,
special proceeding or other proceedings that may be brought arising out
of, in connection with or by reason of this Agreement, the law of the
State of California shall be applicable and shall govern to the exclusion
of the law of any other forum, without regard to the jurisdiction on which
any action or special proceeding may be
instituted.
|
|
19.
|
Severability. All
agreements and covenants contained herein are severable, and in the event
any of them shall be held to be invalid by any competent court, the
Agreement shall be interpreted as if such invalid agreements or covenants
were not contained
herein.
|
|
20.
|
Entire
Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and
replaces all other or prior understandings, agreements and negotiations
between the parties.
|
|
21.
|
Waiver and
Modification. Any waiver, alteration, or modification of
any of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties hereto. Each party hereto,
may waive any of its rights hereunder without affecting a waiver with
respect to any subsequent occurrences or transactions
hereof.
|
|
22.
|
Binding
Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the JAMS under its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The arbitration shall be
conducted in Orange County,
California.
|
|
23.
|
Counterparts
and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing the facsimile signature of a party
hereto shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute
enforceable original
documents.
|
Page 6 of
7
IN WITNESS
WHEREOF, the parties hereto have duly executed and delivered this
Agreement, effective as of the date set forth above.
If you
are in agreement with the foregoing, please execute and return one copy of this
letter to the undersigned. Thank you. We look forward to
working with you.
| CONSULTANT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |||||
| By: |
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
DATE: May 12, 2008 | |||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
|||||
|
|
|
||||
|
CLIENT: DSE ▇▇▇▇▇▇▇,
Inc.
|
|||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | DATE: May 12, 2008 | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Chairman, President and CEO |
Page 7 of
7