CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement"), is made and entered into as
of this 10th day of December, 2004 by and between Trinity3 Corporation, a
Delaware corporation ("Trinity" or the "Company") and Xxxxxxx Xxxxxxxx, an
individual ("Xxxxxxxx" or the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the consulting services of
Consultant; and
WHEREAS, Consultant wish to provide the Company with consulting services.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto hereby agree as follows:
1. CONSULTING SERVICES
The Company hereby authorizes, appoints and engages the Consultant, and
Consultant agrees to be available to consult with the Company's officers and
directors over the next four (4) years on projects agreed to in writing by the
parties. The Company may request Consultant to work on projects in the following
areas (the "Consulting Services"):
(a) to identify potential acquisition targets for the Company;
(b) to make and maintain direct contact with the Company clients as
requested by the Company and to maintain and develop client relationships;
(c) to assist in developing new business and client retention strategies
in all existing markets; and
(d) to assist with the production of marketing communications, as
requested.
The scope and limitations of the Consulting Services to be provided by
Consultant, and a schedule for each project, will be attached to this Agreement
as Exhibit A and entitled a "Consulting Project Order" and be signed by both
parties.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect as of the date hereof and
extend for a period of up to four (4) years.
3. COMPENSATION TO CONSULTANT
The Consultant's compensation for the Consulting Services shall be
warrants to purchase up to Three Hundred Thousand (300,000) shares of common
stock of the Company as set forth in the Warrant attached hereto as Exhibit B
(the "Xxxxxxxx Consulting Warrant"), and the warrants shall vest with Consultant
at a rate of one-fourth (1/4) per year, unless accelerated in accordance with a
Consulting Project Order. If this Agreement is terminated by either the Company
or Consultant all unvested Warrants will be forfeited.
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4. NON-COMPETE AND CONFIDENTIALITY
(a) Consultant shall not, during the term of this Agreement and for a
period of one (1) year immediately following the termination of this Agreement,
or any extension of it, for any reason, either directly or indirectly (for
purposes of this Section 4 of this Agreement, "Company" shall include any and
all of the Company's subsidiaries), and "Business" shall mean the business of
the Company as of the date of this Agreement): (i) become associated with,
render services to, invest in, represent, advise or otherwise participate in as
an officer, employee, director, stockholder, partner, promoter, agent of,
consultant for or otherwise, any business which is conducted in the State of
California and which is competitive with the Business of the Company or any of
its subsidiaries; (ii) for its own account or for the account of any other
person or entity, interfere with the Company's relationship with any of its
suppliers, material customers, accounts, brokers, representatives or agents;
(iii) call on, solicit, or take away any of Company's customers or potential
customers about whom Consultant became aware as a result of Consultant's
services to the Company, either for Consultant or for any other person or
entity; or (iv) solicit or take away or attempt to solicit or take away any of
Company's employees or contractors either for Consultant or for any other person
or entity.
(b) Consultant will maintain in confidence and will not, directly or
indirectly, disclose or use, either during or after the term of this Agreement,
any Proprietary Information or confidential information or know-how belonging to
the Company, whether or not it is in written or permanent form, except to the
extent necessary to perform the services under this Agreement. On termination of
Consultant's services to the Company, or at the request of the Company before
termination, Consultant shall deliver to the Company all material in
Consultant's possession relating to the Company's business. The obligations
concerning Proprietary Information extend to information belonging to customers
and suppliers of the Company about whom the Consultant may have gained knowledge
as a result of performing services for the Company.
5. TERMINATION
The Company or Consultant may terminate this Agreement at any time, with
or without cause, upon written notice to the other party. If either the Company
or Consultant terminates this Agreement, with or without cause, any unvested
Warrants will immediately be forfeited.
6. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
Consultant represents and warrants to and agrees with the Company that:
(a) This Agreement has been duly authorized, executed and delivered by
Consultant. This Agreement constitutes the valid, legal and binding obligation
of Consultant, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by applicable federal or state securities
laws, and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditor's rights
generally; and
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(b) The consummation of the transactions contemplated hereby will not
result in any breach of the terms or conditions of, or constitute a default
under, any agreement or other instrument to which Consultant is a party, or
violate any order, applicable to Consultant, of any court or federal or state
regulatory body or administrative agency having jurisdiction over Consultant or
over any of its property, and will not conflict with or violate the terms of
Consultant's current employment or any other arrangements to which Consultant is
a party.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents, warrants, covenants to and agrees with
Consultant that:
(a) This Agreement has been duly authorized, and executed by the Company
and is a binding obligation of the Company, enforceable in accordance with its
terms, except as rights to indemnity hereunder may be limited by applicable
federal or state securities laws, except in each case as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditor's rights generally.
8. INDEPENDENT CONTRACTOR
Both the Company and the Consultant agree that the Consultant will act as
an independent contractor in the performance of his duties under this Agreement.
Nothing contained in this Agreement shall be construed to imply that Consultant,
or any employee, agent or other authorized representative of Consultant, is a
partner, joint venturer, agent, officer or employee of the Company. Neither
party hereto shall have any authority to bind the other in any respect vis a vis
any third party, it being intended that each shall remain an independent
contractor and responsible only for its own actions.
9. NOTICES
Any notice, request, demand, or other communication given pursuant to the
terms of this Agreement shall be deemed given upon delivery, and may only be
delivered or sent via hand delivery, facsimile, or by overnight courier,
correctly addressed to the addresses of the parties indicated below or at such
other address as such party shall in writing have advised the other party.
If to The Company: Trinity3 Corporation
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile (000) 000-0000
Attn: President
If to Consultant: Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xx Xxxxx, XX 00000
Facsimile (000) 000-0000
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10. ASSIGNMENT
This contract shall inure to the benefit of the parties hereto, their
heirs, administrators and successors in interest. This Agreement shall not be
assignable by either party hereto without the prior written consent of the
other.
11. CHOICE OF LAW AND VENUE
This Agreement and the rights of the parties hereunder shall be governed
by and construed in accordance with the laws of the State of California
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws. Any action
brought by any party hereto shall be brought within the County of Orange, State
of California.
12. ENTIRE AGREEMENT
Except as provided herein, this Agreement, including exhibits, contains
the entire agreement of the parties, and supersedes all existing negotiations,
representations, or agreements and all other oral, written, or other
communications between them concerning the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings, oral
or written, between and among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein.
13. SEVERABILITY
If any provision of this Agreement is unenforceable, invalid, or violates
applicable law, such provision, or unenforceable portion of such provision,
shall be deemed stricken and shall not affect the enforceability of any other
provisions of this Agreement.
14. CAPTIONS
The captions in this Agreement are inserted only as a matter of
convenience and for reference and shall not be deemed to define, limit, enlarge,
or describe the scope of this Agreement or the relationship of the parties, and
shall not affect this Agreement or the construction of any provisions herein.
15. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and
the same instrument.
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16. MODIFICATION
No change, modification, addition, or amendment to this Agreement shall be
valid unless in writing and signed by all parties hereto.
17. ATTORNEYS FEES
Except as otherwise provided herein, if a dispute should arise between the
parties including, but not limited to arbitration, the prevailing party shall be
reimbursed by the non-prevailing party for all reasonable expenses incurred in
resolving such dispute, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"Company" "Consultant"
Trinity3 Corporation,
a Delaware corporation
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- ----------------------------------------
By: Xxxxxx X. Xxxxxxxxxx Xxxxxxx Xxxxxxxx
Its: President
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer
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Exhibit A
Consulting Project Orders
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Exhibit B
Xxxxxxxx Consulting Warrant
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