Consulting Agreement between Datigen.com, Inc. and Aharon Y. Levinas dated March 23, 2005

Summary

This agreement is between Datigen.com, Inc. and Aharon Y. Levinas, who will provide consulting services related to the Battery Brain Product for four years starting March 23, 2005. Levinas will assist with business transition, development, sales, and marketing of the product, and will be compensated annually with increasing payments each year, plus reimbursement for certain expenses and benefits. The agreement includes confidentiality, non-competition, and non-solicitation clauses, and ensures full payment if the consultant is terminated before the end of the term.

EX-10.4 3 v015076_ex10-4.txt Exhibit 10.4 [signature page to Consulting Agreement] {B0167105; 4} CONSULTING AGREEMENT This CONSULTING AGREEMENT (this "Agreement"), dated as of March 23, 2005, by and between Datigen.com, Inc., an Utah corporation (the "Company") and Aharon Y. Levinas ("Consultant"). WITNESSETH: WHEREAS, the Company and the Consultant are parties to an Asset Purchase Agreement dated the date hereof (the "Asset Purchase Agreement") relating to, among other things, the sale and transfer of the Battery Brain Product (the "Product"); and WHEREAS, the Consultant has agreed to provide consulting services to the Company in connection with the Product, and the Company has agreed to retain and compensate the Consultant therefor, all upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Duties and Responsibilities. The Consultant agrees that during the Term and in accordance with the other terms and provisions hereof, to consult with the Company and provide such services as are reasonably required in connection with the Product as are necessary to ensure the smooth transition of the business to the Company and the ongoing development, sales and marketing of the Product. Without limiting the generality of the foregoing, but subject to the other terms and provisions hereof, the Consultant shall during the Term perform for the Company the following consulting services: (i) assistance in negotiations and communications with suppliers, and other customers, clients and vendors of the Product; (ii) advice and assistance regarding marketing, public relations, circulation, and similar activities; (iii) assistance with and general liaison with the business community regarding the Product; (iv) assistance in identifying, researching and implementing the Product; (v) consult and advise the Company on business opportunities related to the Product; and [signature page to Consulting Agreement] (vi) such other services of a similar nature as the Company may reasonably request from time to time. All activities of the Consultant shall only relate to the Battery Brain product and no other business or activity. 2. Compensation. (a) During the Term the Consultant shall be paid at an annual rate as set forth below, which amounts shall be payable monthly, in arrears, on or prior to the 1st day of each month during the Term, commencing on the date hereof. In the event that the Term is extended, the parties shall negotiate the compensation for such additional term. i. During the first year of the Term, $160,000; ii. During the second year of the Term, $200,000; iii. During the third year of the Term, $240,000; and iv. During the fourth year of the Term, $240,000. (b) In addition, the Company shall reimburse the Consultant for its reasonable out-of-pocket travel, meals and entertainment costs and expenses incurred in connection with its provision of the consulting services set forth herein, within no less than thirty (30) days of the request therefore from the Consultant; provided, however, that (i) all such expenses in excess of $5,000 shall be approved in advance by the Company and (ii) the Consultant shall submit to the Company reports and documentation detailing all expenses. All expenses must be properly verified by supporting receipts and bills, or other suitable evidence. The Consultant shall receive a cell phone from the Company and the Company shall be responsible for all bills relating thereto. The Company shall pay the Consultant a car allowance in the maximum amount which is permitted by the Internal Revenue Service and applicable rules. (c) All benefits which shall be granted to the Chief Executive Officer of the Company shall be granted to the Consultant, including without limitation bonuses and stock options. 3. Term. The term of this Agreement shall be four years (the "Term") commencing and effective as of the date hereof, and, unless sooner terminated as provided in Section 5, shall end on March 23, 2009. The Term may be extended only by mutual consent of the parties. 4. Termination. In the event that prior to the expiration of the Term, the Company terminates the services of the Consultant, including without limitation, whether such termination is as a result of the death or disability of Consultant or for cause, the Company shall pay the Consultant or his representatives the balance of the payments described in Section 2(a) above. For the avoidance of doubt, the Company further agrees and acknowledges that all payments described in Section 2(a) which have not yet been paid at the time of any termination of the services of the Consultant shall become immediately due and payable upon the termination. For example, if the Company terminates the services of the Consultant on the third anniversary of the date hereof, and all payments for the 3-year period have been paid in full, the Company shall owe the Consultant $240,000 upon the termination. [signature page to Consulting Agreement] 5. Non-competition; Non-solicitation. During the Term, the Consultant shall not: (i) directly or indirectly own, produce, engage in, be associated with, consult for, or have a financial interest in, or take the initiative in founding or organizing any individual, firm, corporation, limited liability company, partnership, trust, estate, association or other entity engaged in a business competitive with the business of the Company (collectively, a "Competing Business"); provided, however, that the foregoing shall not apply to the Consultant's ownership of less than five percent (5%) of the capital stock of a company having a class of capital stock which is traded on any national stock exchange; or (ii) directly or indirectly solicit, induce or cause (or in any manner attempt to do the same) any individual employed or engaged by the Company or any of its affiliates during the Term to leave such employment or engagement, whether or not such employment or engagement is pursuant to a written contract with the Company or otherwise, or hire or engage any such individual (other than through general employment opportunity solicitations). 6. Confidentiality; Non-disparagement. (a) During the Term, the Consultant agrees not to reveal or disclose to any person or use for its own benefit, without the consent of the Company, any proprietary or confidential information concerning the Company, the Product or the Company's conduct thereof. Without limiting the generality of the foregoing, the Consultant agrees not to make any copies of materials containing any such proprietary or confidential information, except with the Company's prior written consent, and that it will return as soon as practicable after the termination of this Agreement all such materials (and copies) of such proprietary or confidential information. This Agreement does not convey to the Consultant a license in or any proprietary right to such information other than the right to use such information in connection with his provision of the consulting services set forth in Section 1 hereof. For purposes of this Agreement, information shall not be deemed proprietary or confidential if (i) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Consultant, (ii) becomes known to the Consultant through unrestricted disclosure by sources other than the Company having a legal right to disclose such information, or (iii) is already known by the Consultant at the time of disclosure. [signature page to Consulting Agreement] (b) The Consultant shall not make, including through an agent, any oral or written statements which are or could reasonably be interpreted to be of a negative or critical nature concerning the Company or its business. The Consultant agrees to cause its employees to be bound by all the terms and provisions of Sections 5 and 6 hereof. 7. Independent Contractor. The Consultant shall be deemed to be an independent contractor of the Company and shall not be considered an agent, employee, partner, or joint venturer with the Company. The Consultant shall be responsible for payment of any and all self-employment and other payroll-related taxes, as applicable, and shall be solely responsible for securing any necessary insurance. The Consultant shall not have the authority, nor represent that he has the authority, to make any commitments on the Company's behalf. 8. Indemnification. The Company shall indemnify and hold harmless the Consultant and its officers, directors, shareholders and employees from and against any loss, damage, liability, cost and expense (including attorneys' fees and legal costs) caused to or incurred by it or any of them as a result of third party claims filed against it or any of them and arising out of or resulting from the performance by Consultant of the consulting services under Section 1 hereof and/or the use by the Company of any information developed or provided by Consultant in the performance of its consulting services under Section 1 hereunder, except for acts which involve the willful misconduct of the Consultant. In connection with the indemnification under this Section 9, the Company will obtain and maintain adequate levels of liability insurance insuring the performance of the Consultant during the Term. 9. Miscellaneous. (a) The internal laws of the State of New Jersey, without regard to conflicts or choice of law principles, will govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties hereto. (b) Neither party to this Agreement may assign, transfer or otherwise dispose of any of its rights in this Agreement or delegate, transfer or otherwise dispose of any of its duties under this Agreement without the prior written consent of the other party, provided, however, that the Consultant shall have the right to assign this Agreement to another person or entity as long as the Consultant shall provide the services hereunder. This Agreement shall be binding upon the successors of the parties hereto. [signature page to Consulting Agreement] (c) If any provision of this Agreement, or the application thereof, is for any reason held to any extent to be invalid or unenforceable, the remainder of this Agreement and application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision. (d) This Agreement may be executed in counterparts, each of which will be an original as regards any party whose name appears thereon and all of which together will constitute one and the same instrument. This Agreement will become binding when one or more counterparts hereof, individually or taken together, bear the signatures of all parties reflected hereon as signatories. (e) Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by the party to be bound thereby. The waiver by a party of any breach hereof or default in the performance hereof will not be deemed to constitute a waiver of any other default or any succeeding breach or default. The failure of any party to enforce any of the provisions hereof will not be construed to be a waiver of the right of such party thereafter to enforce such provisions. (f) Any notice or other communication required or permitted to be given under this Agreement must be in writing, will be deemed duly received when delivered in person or when sent by facsimile (with copy of confirmation receipt), or one business day after having been sent by a nationally recognized overnight courier service, addressed as follows (or to such other addresses as a party may designate): If to the Company: Datigen.com, Inc. c/o 92 Washington Avenue Cedarhurst, NY 11516 Tel: (516) 569-9629 Fax: 9516) 569-5053 [signature page to Consulting Agreement] If to the Consultant: Aharon Y. Levinas 8-04 Arnot Place Fair Lawn, NJ 07410 Tel: 201 ###-###-#### ###-###-#### (g) The language hereof will not be construed for or against any party based solely on that party being the drafting party. The titles and headings in this Agreement are for reference purposes only and will not in any manner limit the construction of this Agreement. Where the context permits, the word "including" shall mean "including without limitation" or words to that effect. For the purposes of such construction, this Agreement will be considered as a whole. (h) No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights. (i) This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of trade inconsistent with any of the terms hereof. [remainder of page intentionally left blank] [signature page to Consulting Agreement] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized, all as of the date first written above. CONSULTANT: /s/ Aharon Y. Levinas ------------------------------- Aharon Y. Levinas DATIGEN.COM, INC.: By: /s/ Amir Uziel ------------------------- Name: Amir Uziel Title: President [signature page to Consulting Agreement]