ffi_ex105-80731.htm


    EX
10.5

     

    DONALD
HEJMANOWSKI

     

    CONSULTING
AGREEMENT

     

    THIS
CONSULTING AGREEMENT (the “Agreement”) is made and entered into effective the
12th day of May 2008 by and between Donald Hejmanowski (the “Consultant”), whose
principal place of business 22525 PCH, Suite 101, Malibu, CA 90265 and DSE
Fishman, Inc . (DSE) (the “Client”) whose principal place of business is 300 So.
Harbor Blvd, Suite 500, Anaheim, CA 92805

     

    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.

            


    

     

    
      
         

      

      
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              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.

            


    

     

    
      
         

      

      
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              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.

            


    

     

    
      
         

      

      
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              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.

            


    

     

    
      
         

      

      
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              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.

            


    

     

    
      
         

      

      
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              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.

            


    

     

    
      
         

      

      
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    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:  Donald
      Hejmanowski	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	By: 
      	
                                              /s/
      Donald Hejmanowski

                                            	 	 	DATE: May 12, 2008	 
	 	
                                              Donald
      Hejmanowski

                                            	 	 	 	 
	 	
                                               

                                            	 	 	
                                               

                                            	 
	 	 	 	 	 	 
	 	

                                              CLIENT:  DSE Fishman,
      Inc.

                                            	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	By:
      	/s/
      Thomas C. Hemingway	 	 	DATE:
      May 12, 2008	 
	 	Thomas C.
      Hemingway	 	 	 	 
	 	Chairman,
      President and CEO	 	 	 	 


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        



       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

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