CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement"), made and entered into as
of the 1st day of June, 2000, is by and between The Exigo Group ________, a
_______ ("Consultant"), and XxxXxxxxxx.xxx, Inc., a Delaware Corporation (the
"Company").
WITNESSETH THAT:
WHEREAS, the Company desires to engage the Consultant in the capacity
hereinafter stated, and the Consultant desires to enter into an engagement with
the Company in such capacity for the period and on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby covenanted and agreed by the Company and the
Consultant as follows:
1. Consulting Period. The Company hereby agrees to engage the Consultant
to provide sales and marketing consulting services for itself and its
Affiliates, and a single employee of the Consultant shall be selected,
subject to the approval of the Company, to provide such consulting
services on a full-time basis at the Company's site or as otherwise
directed by the Company (the "Designee"), with such Designee(s)
agreeing to act as the Company's Vice President, Product Sales and
Marketing, if requested by the Company. The Consultant agrees to
provide services to the Company ("Consulting Period") beginning on the
date first above written and ending, subject to Section 5, on June 1,
2001. At the request of the Company, the Designee shall be replaced by
the Consultant with another employee of Consultant approved by the
Company to act in that capacity. This Agreement will automatically
renew for successive ninety (90) day periods unless either party gives
the other written notice of termination as described in Section 5
hereof, with each such renewal period being considered an extension of
the Consulting Period.
2. Independent Contractor. Each of the Consultant and the Designee(s)
shall at all times during the term of this Agreement be an independent
contractor to the Company, and shall not be regarded as an employee of
the Company or any of its subsidiaries. Consultant and the Designee(s)
shall be responsible for the payment of all federal, state and local
taxes, FICA payments or the like out of the compensation paid to
Consultant under the terms of this Agreement.
3. Performance of Duties. The Consultant agrees that, during the
Consulting Period, as requested by the Boards of Directors of the
Company, the Consultant and the Designee(s) will provide their best
efforts, professional energy and talent to serve as a consultant in the
best interests of the Company. The Consultant also agrees that it will
cause each Designee to execute this agreement in the space provided as
an Additional Signatory. The Designee(s) will perform for the Company
such duties as are consistent with the position of Vice President,
Product Sales & Marketing of the Company, as well as other tasks and
duties as requested by the Company and its Board of Directors which are
commensurate with the compensation level paid to Consultant and
management position of the Designee(s) with the Company.
4. Compensation. Subject to the terms and conditions of this Agreement,
during the Consulting Period, the Consultant shall be compensated by
the Company for its services as follows:
(a) The Consultant shall receive a consulting fee of $12,500 for
each month it is engaged as a Consultant under this Agreement
(the "Consulting Fee"), payable on the first day of each month
during the Consulting Period.
(b) The Company shall grant to the Consultant as of the date
hereof five-year warrants (the "Company Warrants") to purchase
120,000 shares of the common stock of the Company, par value
$.0001 per share (the "Company Common Stock"), which Company
Warrants shall be exercisable for $3 per share of Company
Common Stock. The Company Warrants referred to in clause (i)
above shall be evidenced by a warrant substantially in the
form of Exhibit A hereto.
(c) The Consultant shall promptly be reimbursed for reasonable
expenses incurred in the performance by itself and by the
Designee(s) of its duties hereunder; provided, that it shall
furnish an itemized account satisfactory to the Board of
Directors of the Company in substantiation of expenditures in
connection with his services under this Agreement.
(d) In connection with the granting of the Company Warrants to the
Consultant, the Consultant agrees that it shall execute and
deliver to the Company a Subscription Agreement substantially
in the form of Exhibit B hereto, and such agreements and
instruments as counsel to the Company shall deem necessary in
order for the Company to comply with applicable federal and
state securities laws.
5. Termination. This Agreement shall terminate upon the occurrence of any
of the following:
(a) Without Cause. Either the Company or the Consultant may
terminate this Agreement upon thirty (30) days' written
notice.
(b) Discharge for Cause. The Board of Directors of the Company may
terminate this Agreement immediately and without notice if:
(i) The then Designee is or becomes habitually addicted
to drugs or alcohol.
(ii) The Consultant or any Designee discloses confidential
information in violation of Section 6.
(iii) The then Designee, voluntarily or involuntarily,
steps down as Vice President, Product Sales &
Marketing of the Company.
(iv) The Company is directed by regulatory or governmental
authorities to terminate the engagement of the
Consultant or the services of the then Designee, or
the Consultant or any Designee engages in, or has
engaged in, respectively, activities that result in
actions to be taken by regulatory or governmental
authorities that have a material adverse effect on
the Company.
(v) The Consultant or the then Designee is convicted of
or pleads no lo contendere to any felony involving
moral turpitude or to any crime in connection with
the duties to be performed hereunder, but
specifically shall not include minor traffic
offenses.
(vi) The Consultant breaches its duties under this
Agreement in any material respect, whether or not as
a result of the conduct of the then Designee, and
that breach is not cured within ten (10) days of
notice thereof from the Company to the Consultant.
Such notice will only be required for the first said
breach.
(vii) The Consultant or the then Designee engages in any
misconduct that has a material adverse effect on the
Company.
(viii) The Consultant or the then Designee commits an act of
fraud against the Company or any client of the
Company.
6. Confidential Information. The Consultant or the then Designee will not
at any time, whether during or after the Consulting Period, reveal to
any person or entity any of the Confidential Information of the
Company, which includes the information of any person or entity
controlling, controlled by or under common control of the Company
("Affiliates"), or of any third party which the Company or their
Affiliates are under an obligation to keep confidential. The term
"Confidential Information" as used throughout this Agreement shall mean
all trade secrets, proprietary information and other data or
information (and any tangible evidence, record or representation
thereof), whether prepared, conceived or developed by the Consultant or
the then Designee or any other employee or contractor for the Company,
or their Affiliates or received by the Company or their Affiliates from
an outside source, which is in the possession of the Company or their
Affiliates (whether or not the property of the Company), which in any
way relates to the present or future business of the Company including
their Affiliates, or any customer or supplier of the Company or their
Affiliates, and which is maintained in confidence by the Company and/or
their Affiliates. Without limiting the generality of the foregoing,
"Confidential Information" shall mean all trade secrets, know-how,
proprietary information and other information or data relating to the
present or future business of the Company and their Affiliates which is
in the possession of the Consultant or its then Designee which has
previously been delivered to him, including but not limited to:
(i) any idea, improvement, invention, innovation,
development technical data, design, formula, device,
pattern, concept, computer program, software,
firmware, source code, object code, algorithm,
subroutine, object module, schematic, model, diagram,
flow chart, chip masking specification, user manual,
training or service manual, product specification,
plan for a new or revised product, compilation of
information, or work in process, and any and all
revisions and improvements relating to any of the
foregoing (in each case whether or not reduced to
tangible form); and
(ii) the name of any customer, employee, prospective
customer or consultant, any sales plan, marketing
material, plan or survey, business plan, product or
development plan or specification, business proposal,
financial record, or business record or other record
or information relating to the business of the
Company or its Affiliates.
(a) Notwithstanding the foregoing, the term Confidential
Information shall not apply to information (u) disclosed by
the Consultant or the then Designee during the consulting
period in the course of his duties hereunder and the
Consultant or the then Designee reasonably determine in good
faith that it is in the best interests of the Company to do
so, (v) the Consultant or the then Designee is compelled
pursuant to an order of a court or other body having
jurisdiction over such matter to do so (in which case the
Company shall be given prompt written notice of such intention
to divulge such Confidential Information not less that five
(5) days prior to such disclosure or such shorter period as
the circumstances may reasonably permit), (w) which the
Company or an Affiliate of either has voluntarily disclosed to
the public without restriction, (x) which has otherwise
lawfully entered the public domain, (y) which the Company has
permitted the Consultant or the then Designee to disclose by
its prior written consent; or (z) which the Consultant or the
then Designee may disclose at a forum, workshop or round table
conference with the prior knowledge and consent of the
Company.
(b) Consultant and the then Designee further represent that
Consultant's and then Designee's performance of all of the
terms of this Agreement does not and will not breach any
agreement to keep in confidence Confidential Information
acquired by the Consultant and the then Designee prior to
engage by the Company. Consultant and the then Designee has
not entered into, and agrees not to enter into, any agreement
either written or oral in conflict herewith.
(c) During the Consulting Period, the Consultant and the then
Designee agree not to make, use or permit to be used any
notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or
other materials of any nature relating to any matter within
the scope of the business of Company or their Affiliates
concerning any of their dealings or affairs otherwise than for
the benefit of the Company and their Affiliates. Consultant
and the then Designee further agree, after the termination of
the Consulting Period, not to use or permit to be used any
such notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data,
documentation or other materials including the Company's
manuals and policy statements or those of their Affiliates, it
being agreed that all of the foregoing shall be and remain the
sole and exclusive property of the Company, as applicable,
subject to the obligation of confidentiality created herein.
Consultant and the then Designee agree that within ten (10)
days after the termination of this Agreement, Consultant and
the then Designee shall either (i) deliver all of the
foregoing, and all copies thereof, to the Company, at its main
office, or (ii) destroy all of the foregoing, and all copies
thereof, and deliver a sworn notice to the Company certifying
to such destruction. Upon the termination or expiration of
this Agreement or at such other time as the Company and its
Affiliates may request, Consultant and the then Designee agree
to return to the Company all originals and copies, whether
generated by the Consultant, the then Designee or anyone else,
of all versions of software code in hard copy or machine
readable form, all document files, lists, forms, contracts,
notebooks, rolodexes, keys, credit cards, and any other
material which came into, and continues to be in, Consultant's
or the then Designee's possession and relate to the Company,
its Affiliates and their respective businesses or their
potential acquisitions and investments, except to the extent
such documents, notebooks or code subsist in computers which
are the property of the Consultant and the then Designee, and
the Consultant and the then Designee will be deemed to have
returned such to the Company and/or its Affiliates by printing
a hard copy of such and submitting a certificate affirming
under oath that the information has been deleted.
(d) Consultant and the then Designee recognize that the Company
and its Affiliates develop highly-specialized services in
competition with other business entities throughout the United
States, Canada and other parts of North America, which
products and services are designed to compete in regional,
nation-wide and other North American markets. In light of the
highly competitive nature of the Company's services,
Consultant and the then Designee agree that the restrictions
contained in this Section 6 are reasonable and cannot be
limited to any geographic area within the United States,
Canada or other parts of North America or to any narrower
field. The Consultant and the then Designee acknowledge that
the provisions of this Section 6 are essential to the
continued goodwill and profitability of the Company and
necessary for the preservation of confidentiality of
Confidential Information, and further acknowledges that the
application or operation thereof will not involve a
substantial hardship upon his future livelihood. Should any
court determine that the provisions of this Section 6 shall be
unenforceable in respect of scope, duration or geographic
area, such court shall be empowered to substitute, to the
extent enforceable, provisions similar hereto or other
provisions so as to provide to the Company, to the fullest
extent permitted by applicable law, the benefits intended by
this Section 6.
7. Developments Agreement.
(a) If at any time or times during the Consulting Period, the
Consultant or the then Designee (either alone or with others)
made or makes, conceives, discovers or reduces to practice any
invention, modification, discovery, design, development,
improvement, process, software program, work of authorship,
documentation, formula, data technique know-how, secret or any
interest therein (whether or not patentable or registrable
under copyright or similar statutes or subject to analogous
protection) (herein called "Developments") that relate to the
business of the Company, its Affiliates, or that of any
supplier or customer of the Company with respect to any of the
goods and services sold, licensed or under development by the
Company, or result from the use of premises or personal
property, tangible or intangible, owned, leased or contracted
for by the Company or its Affiliates, such Developments and
the benefits thereof shall immediately become the sole and
absolute property of the Company or its Affiliates, and the
Consultant and the then Designee shall promptly disclose to
the Company (or any persons designated by it) each such
Development. The Consultant and the then Designee hereby
assign any rights which the Consultant or the then Designee
may have or acquire in the Developments and benefits and/or
rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without
cost or delay, and without publishing the same, all available
information relating thereto (with all necessary plans and
models) to the Company.
(b) Upon disclosure of each Development to the Company, Consultant
and the then Designee will, during the Consulting Period and
at any time within two years thereafter, at the request and
cost of the Company, sign, execute, make and do all such
deeds, documents, acts and things as the Company or its
Affiliates and its duly authorized agents may reasonably
require:
(i) to apply for, obtain and vest in the name of the
Company or its Affiliates alone (unless the Company
otherwise directs) letters patent, copyrights or
other analogous or other forms of intellectual
property protection in any country throughout the
world and when so obtained or vested to renew and
restore the same; and
(ii) to defend any opposition proceedings in respect of
such applications and any opposition proceedings or
petitions or applications for revocation of such
letters patent, copyright, or other analogous
protection, or other forms of intellectual property
protection. In the event the Company or its
Affiliates is unable, after reasonable effort, to
secure Consultant's or the then Designee's signature
on letters patent, copyright or other analogous or
other form of intellectual property protection
relating to a Development, whether because of
Consultant's or the then Designee's physical or
mental incapacity or for any other reason whatsoever,
then the Consultant and the then Designee hereby
irrevocably designates and appoints the Company and
its duly authorized officers and agents as
Consultant's and the then Designee's agent and
attorney-in-fact, to act for and in Consultant's and
the then Designee's behalf and stead to execute and
file any such application or applications and to do
all other lawfully permitted acts to further the
prosecution and issuance of letters patent, copyright
or other analogous protection thereon with the same
legal force and effect as if executed by Consultant
or the then Designee.
(c) Consultant and the then Designee understand that the
Developments including, but not limited to, those identified
in the pages, if any, attached hereto which the Consultant or
the then Designee can demonstrate to the satisfaction of the
Company or its Affiliates were made or conceived prior to
engagement by the Company, are excluded from this Agreement.
The Consultant and the then Designee understand that it may
have to provide a short description of such excepted
Developments and that it may not be sufficient to list the
title and purpose of such Developments.
(d) To the maximum extent permitted by law, all written material
or material committed to a fixed form and components thereof,
prepared in the course of Consultant's or the then Designee's
engagement with Company and its Affiliates, including rough
drafts and other materials created in the developmental stages
of preparation of finished materials, shall be regarded as
"works for hire" for the Company. The Consultant and the then
Designee agree that all such materials and components thereof
as described, may be used by the Company without additional
compensation to Consultant or the then Designee and that the
Company shall have the right to change any such materials. The
Consultant and the then Designee furthermore assign all
rights, title and interest in and to all said materials and
components thereof, as aforedescribed, including all worldwide
copyright rights including any renewals or extensions
available thereon, and agree to execute whatever Powers of
Attorney, or other documents which the Company deems necessary
or advisable to apply to obtain, or maintain, such copyright
protection or to otherwise better enjoy the rights granted in
this Section 7.
8. Successors. This agreement shall be binding on, and inure to the
benefit of, each of the parties hereto, and their successors and
assigns whether or not by operation of law, and any person acquiring
all or substantially all of such party's assets and business, whether
by merger, consolidation, purchase of assets or otherwise.
9. Nonalienation. The interests of the Consultant under this Agreement are
not subject to the claims of its creditors, and may not otherwise be
voluntarily or involuntarily assigned, alienated or encumbered.
10. Remedies. The Consultant, and each Designee prior to providing services
hereunder, acknowledges and will acknowledge that the Company may be
irreparably injured by a violation of Section 6, and agrees and will
agree that the Company shall be entitled to an injunction restraining
the Consultant or any Designee from any actual or threatened breach of
Section 6, or to any other appropriate equitable remedy without bond or
other security being required.
11. Waiver of Breach. The waiver by the Company or the Consultant of a
breach of any provision of this Agreement shall not operate as or be
deemed a waiver of any subsequent breach by the Company or the
Consultant.
12. Notice. Any notice to be given hereunder by a party hereto shall be in
writing and shall be deemed to have been given when delivered by hand,
by facsimile with confirmation back or by e-mail with confirmation of
delivery, one day after delivery to an overnight courier of national
reputation (for next day delivery), or three days after being deposited
in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Consultant addressed as follows:
The Exigo Group
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Fax:_____________________
E-Mail:__________________
(b) to the Company addressed as follows:
XxxXxxxxxx.xxx, Inc.
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Chief Operating Officer
Fax: (000) 000-0000
E-Mail: xxxxx@xxxxxxxx.xxx
13. Amendment. This Agreement may be amended or cancelled by mutual
agreement of the parties in writing without the consent of any other
person and no person, other than the parties hereto, shall have any
rights under or interest in this Agreement or the subject matter
hereof.
14. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the internal laws of the State of New York, without
regard to its principles of conflict of laws.
15. Termination. All of the provisions of this Agreement shall terminate
upon the expiration of the Consulting Period, as it may be earlier
terminated or extended, except that the obligations of Section 6 shall
not terminate and shall remain in effect indefinitely
IN WITNESS WHEROF, the Consultant and the Company have executed this
Consulting Agreement on the 1st day of June, 2000.
XXXXXXXXXX.XXX, INC.
By:
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Name: Xxxxx Xxxxxxxx
Title: Chief Operating Officer
THE EXIGO GROUP
By:
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Name:
Title:
ADDITIONAL SIGNATORY: DESIGNEE
By:
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Name:
