XXX-TYME, INC.
000 XXXXXXXXX XXXXXX
XXXXXXXX, XX 00000
September 2, 0000
Xxxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Consulting Agreement
Dear Xx. Xxxxxxxxx:
This Agreement is to confirm our understanding with respect to the
rendering by you (the "Consultant") of certain consulting services to Xxx-Tyme,
Inc. ("BTI"), upon the terms and conditions set forth below.
1. Payment by BTI. As full and total consideration for the services
provided by you to BTI, BTI hereby issues to you the option (the "Option") to
purchase 200,000 shares of BTI's Series C Preferred Stock for a period of five
(5) years at any time commencing on the date hereof at an exercise price of $.25
per share. A form of the Option is attached hereto as Exhibit A. In addition,
BTI agrees to register such shares for sale to the public as soon as
practicable. This Agreement may be terminated at any time by providing the other
party hereto with 90 days prior written notice.
2. Term of Agreement. The agreement shall be for a term of two (2)
years.
3. Consultant's Obligations. From time to time the Consultant agrees to
provide BTI with such consulting services as requested by BTI in connection with
acquisitions, divestitures, joint ventures and other strategic business
initiatives. In addition, the Consultant agrees to surrender for cancellation
options previously issued to him to purchase 75,000 shares of BTI's Series C
Preferred Stock exercisable at $2.00 per share.
4. Confidential Information Consultant acknowledges that all
information, documents, customer lists, patents, trademarks, copyrights,
materials, specifications, business strategies or any other ideas which directly
relate to the business of BTI (referred to herein as "Confidential Information")
whether prepared or generated by Consultant, or BTI pursuant to this Agreement
or otherwise in the possession or knowledge of Consultant prior to the date
hereof or coming into possession or knowledge of Consultant during the term of
this Agreement shall be the exclusive, confidential property of BTI, except to
the extent expressly authorized in writing by BTI for dissemination. From the
date of this Agreement through and including the twenty-fourth month following
the termination of this Agreement or any extension thereof (the "Restricted
Period"), Consultant shall not disclose any of such Confidential Information to
any third party without the prior written consent of BTI and shall take all
reasonable steps and actions necessary to maintain the confidentiality of such
Confidential Information.
5. Status as Independent Contractor. Consultant's engagement pursuant
to this Agreement shall be as independent contractor and not as an employee,
officer or other agent of BTI. Neither party to this Agreement shall represent
or hold itself out to be the employer or employee of the other. Consultant
further acknowledges that the compensation provided herein is a gross amount of
compensation and that BTI will not withhold from such compensation any amounts
respective income taxes, social security payments or any other payroll taxes.
All such income taxes and payments shall be made or provided for by Consultant
and BTI shall have no responsibility or duties regarding such matters.
6. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to binding
arbitration conducted in the State of New York, City of New York, in accordance
with the rules of the American Arbitration Association in New York City. This
Agreement may be executed simultaneously in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. This Agreement
contains the entire understanding of the parties hereto with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties.
If this Agreement accurately reflects your understanding of our
agreement, kindly sign the enclosed copy of this letter on the space provided
below and return it to me at your earliest convenience.
Very truly yours,
XXX-TYME, INC.
/s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
President
Agreed to and Accepted as of
the Date First Written Above:
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxxx
