CONSULTING AGREEMENT
EXHIBIT
99.3
Whereas,
Xxxxxxx Xxxxxxx (“Philips”) is an employee of CDEX Inc., a Nevada corporation
(the “Company”) pursuant
to an Employment Agreement dated June 11, 2007, as amended from time to time
(Employment Agreement with Amendments are hereinafter termed “Employment
Agreement”).
Whereas,
Philips is resigning from employment of the Company effective close of business
on February 10, 2010;
Whereas,
Philips believes that it is in the best interest of the Company to bring in a
commercialization management team to allow him to step out of the position of
CEO and Board Member and return to his status as a shareholder as was the case
during 2006;
Whereas,
in view of Philips’s expertise with regard to matters involving the Company, the
Company desires to have available his continued services as the Company’s CEO,
Chairman of the Board of Directors and Acting General Counsel during a
transition period while a new CEO is hired and placed on the Board, and services
of a General Counsel are obtained, and both brought up to speed.
Whereas,
Philips would like to provide such services; and
Whereas,
the Company can obtain such services through “IAM Investment Group LP” (“FLP”) for which Philips
works.
Accordingly,
for good and valuable consideration the sufficiency of which is recognized and
acknowledged by all parties, the Company and Philips and FLP agree to the
provision of this Consulting Agreement (“Agreement”) as
follows:
This
Agreement is entered into as of February 10, 2010 (the “Effective Date”), by and
between CDEX and FLP, representing Philips, (hereinafter, both FLP and Philips,
are termed “Consultant”).
1. Consulting
Agreement. Subject to the
terms and conditions set forth in this Agreement, the Company agrees to engage
the Consultant to perform services for the Company, effective as of the
Effective Date and subject to the terms and conditions set forth
below.
2. Term. This Agreement is
for a term of six months (“Term”).
3. Services
of the Consultant. During the Term
of this Agreement, Consultant shall serve as the Chairman, CEO and Acting
General Counsel until those positions are filled and afterward, provide
transition services for the new CEO and General Counsel until the Term is
completed or until the Company no longer needs Consultant’s services, whichever
comes sooner. The Consultant shall faithfully perform such services for the
business and affairs of the Company (the “Services”). The
Consultant shall devote his best efforts and attention to the performance of the
Services and shall expend such time as may be required to perform the Services.
The Consultant shall not perform services that are similar in nature to the
Services for any other person or entity.
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4.
Place of
Performance. The
place of performance shall be as agreed upon with the Company.
5.
Compensation.
5.1 Fees.: As
compensation for Consultant Services Consultant shall be paid a flat fee of
$4,000 per month for services.
5.2. Benefits. Philips shall not
be eligible to participate in any of the Company’s employee benefit plans,
fringe benefit programs, group insurance arrangements or similar programs,
unless he is invited to participate pursuant to Company policy.
5.3 Vesting
Schedule for Unvested Stock and Stock Options. It is agreed by
Consultant and the Company that all unvested Stock Options granted to Philips
shall be fully vested effective February 10, 2010 and shall be exercisable until
twelve months following termination of this Agreement.
6.
Expenses. The
Company shall reimburse the Consultant for reasonable and authorized expenses
incurred by the Consultant in connection with the performance of the Services
upon periodic presentation by the Consultant of an itemized account of such
expenses and appropriate receipts.
7.
Termination
of Services. Upon termination of the Consultant’s Services,
this Agreement shall become null and void, except as to Section 5 and as
provided in Section 12.3.
8.
Compensation
Upon Termination. Upon the termination of this Agreement under
Section 2 above, with respect to Section 5.1.1, the Consultant shall only be
entitled to (i) the accrued and earned portion of his fee. In
addition, Consultant shall be entitled to reimbursement of expenses that were
incurred before the termination became effective and that are reimbursable under
this Agreement.
9.
CDEX
Agreements. As an
express condition for the Company’s agreement to enter into this Agreement, and
as a pre-condition to the effectiveness of this Agreement, the Consultant and
Company agree that the Non-Compete Agreement and Non-Disclosure Agreement
executed as part of Philips’, earlier Employment Agreement with the Company
shall remain in effect, and that the post-employment term of those Agreements
will not begin until such time as this Agreement is terminated.
10. Independent
Contractor Obligations. It is expressly
agreed that the Consultant is acting as an
independent contractor in performing the Services. The Company shall carry no
Workers’ Compensation insurance or any health or accident insurance to cover the
Consultant or any of its employees or contractors. The Consultant shall carry
all such insurance as shall be required by law and as it deems appropriate, and
shall provide the Company with a copy of each such insurance policy upon the
request of the Company. The Company shall not pay any contribution to
Social Security, unemployment insurance, federal or state withholding taxes, nor
provide any other contributions or benefits which might be expected to be paid
by an employer in an employer-employee relationship. The Consultant expressly
agrees to report and to pay, on or before the date due, any and all
contributions for taxes, unemployment insurance, Social Security, and other
benefits for itself and its employees. Upon the request of the Company, the
Consultant shall provide evidence, satisfactory to the Company, that all such
tax and other payments required to be made by the Consultant under this Section
have been timely paid when and as due.
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11. Arbitration. Any failure
to perform, controversy or claim arising out of or relating to this Agreement or
the breach, termination or validity thereof, shall be determined exclusively by
arbitration in accordance with the provisions of this Section and in accordance
with the rules of the American Arbitration Association for arbitrating
commercial matters. The arbitration shall be held in Charlotte, NC, or such
other location as the parties shall mutually agree. The arbitrators shall base
their award on applicable Nevada law and judicial precedent, and shall accompany
their award with written findings of fact and conclusions of law. The decision
of the arbitrators shall be binding on the parties, except that any party may
appeal the arbitrators’ decision by filing an action to reconsider the decision
of the arbitrators in a court having jurisdiction hereunder. In any such action
the arbitrators’ findings of fact shall be conclusive and binding on both
parties and the sole questions to be determined by the court shall be (i)
whether or not the arbitrators’ decision was contrary to Nevada law and judicial
precedent, and (ii) if the court determines that the arbitrators’ decision was
contrary to Nevada law and judicial precedent, then how the dispute shall be
resolved based on the arbitrators’ findings of facts and Nevada law and judicial
precedent. The decision of the court as to the resolution of the dispute under
Nevada law and judicial precedent shall supercede the arbitrators’ decision.
Judgment upon the award rendered by the arbitrators, as modified by the court,
if applicable, may be entered in any court having jurisdiction in accordance
herewith.
12.
Miscellaneous.
12.1 Notices. All notices,
demands, requests or other communications required or permitted to be given or
made hereunder shall be in writing and shall be hand-delivered or shall be
mailed by first class registered or certified mail, postage prepaid to the
respective addresses of the parties. Notice shall be deemed to have been
received either on the day delivered, if hand-delivered, or five (5) days after
mailing, if mailed.
12.2 Severability. The invalidity or
unenforceability of any one or more provisions of this Agreement shall not
affect the validity or enforceability of the other provisions of this Agreement,
which shall remain in full force and effect.
12.3 Survival. It is the express
intention and agreement of the parties hereto that the provisions of
Section 7, Section 8, Section 9, Section 10, and Section 11 hereof shall
survive the termination of this Agreement. In addition, all
obligations of the Company to make payments pursuant to Sections 5 and 6 with
regard to fees earned, obligations made or expenses incurred prior to the
termination of this Agreement shall survive any termination of this Agreement on
the terms and conditions set forth herein. Finally, all provisions
that are by their nature designed to survive the termination shall so
survive.
12.4 Assignment. Neither party
shall assign any right or delegate any obligation hereunder without the other
party’s written consent, and any purported assignment or delegation by a party
hereto without the other party’s written consent shall be void. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and the Consultant, his or her heirs, executors, administrators and
legal representatives.
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12.5 Amendment;
Waiver. This Agreement
shall not be amended, altered or modified except by an instrument in writing
duly executed by the parties hereto. Neither the waiver by any of the parties
hereto of a breach of or a default under any of the provisions of this
Agreement, nor the failure of any of the parties, on one or more occasions, to
enforce any of the provisions of this Agreement or to exercise any right or
privilege hereunder, shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any such provisions,
rights or privileges hereunder.
12.6 Headings. Section and
subsection headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for any
purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
12.7 Governing
Law. This
Agreement, the rights and obligations of the parties hereto, and any claims or
disputes relating thereto, shall be governed by and construed in accordance with
the laws of the State of Nevada (but not including the choice of law rules
thereof). Subject to the arbitration provisions herein, any action filed in
relation to this Agreement and the performance of the parties hereunder shall be
filed in the appropriate state court or the U.S. District Court having
jurisdiction over Charlotte, NC, the parties hereto waiving any other venue to
which they may be entitled by virtue of domicile or otherwise. Each of the
parties hereto waives a trial by jury in regard to any claims or disputes
relating to this Agreement.
12.8 Entire
Agreement. This
Agreement constitutes the entire agreement between the parties respecting the
engagement of the Consultant, there being no representations, warranties or
commitments except as set forth herein. Except as provided herein,
the Employment Agreement is null and void.
12.9 Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be an original
and all of which shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the
undersigned have duly executed this Agreement, or have caused this Agreement to
be duly executed on their behalf effective as of the day and year first
hereinabove written.
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | By: | /s/ Xxxxxx Xxxxxxxxx | ||
| Xxxxxxx X. Xxxxxxx, Xx. | Xxxxxx Xxxxxxxxx | ||||
|
(Representing both
himself and
IAM
Investment Group, LP
|
Board of
Directors
|
|
|||
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