Exhibit 10.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of this 23rd day of September, 2003, by and between Guardian
Technologies International, Inc., a Delaware corporation (the "Company"), and
X.X. Xxxxxxxx (hereinafter referred to as the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to engage Consultant to provide certain
consulting services to the Company as set forth hereinbelow; and
WHEREAS, the Company and Consultant intend that this Agreement and the
services to be performed hereunder shall be a "written compensation contract"
within the meaning of Rule 405 under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to which the Company will issue shares of its common
stock, $.001 par value per share, as compensation for services rendered by the
Consultant to the Company and that the shares to be issued as compensation under
this Agreement shall be issued pursuant to a registration statement on Form S-8
to be filed by the Company with the Securities and Exchange Commission ("SEC").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, it is agreed as
follows:
1. APPOINTMENT.
The Company hereby engages Consultant to provide the following
consulting services: assisting the Company in the creation of market events that
provide genuine competitive advantage and build long-term company value;
developing a marketing strategy, establishing a market, and creating a network
for the Company's distinctive products and services; developing and promoting
the Company's interests in markets in which the Company is not completely
active, as well as identifying and pursuing opportunities and revenue options on
the Internet; and supporting all broad implementation elements of the Company's
marketing and public relations tactics with the closing of sales expected in an
accelerated pace, and Consultant hereby accepts such engagement subject to the
terms of this Agreement. The services will be performed at the request of
management of the Company and to its satisfaction. The services hereunder will
be personally rendered by Consultant. None of the services rendered by
Consultant and paid for by the issuance of shares of common stock of the Company
shall be services related to any "capital raising" transaction as such term is
used in Rule 405 under the Securities Act.
2. TERM.
The term of this Agreement shall commence on the date of the execution
hereof and shall be for a period one (1) year from the date thereof, unless
sooner terminated pursuant to the provisions hereof.
3. INDEPENDENT CONTRACTOR
Consultant shall be an independent contractor with regard to the
Company and Consultant shall be responsible and liable for all withholding
taxes, FICA or other similar taxes or charges with regard to the compensation to
be paid or issued hereunder. Consultant shall indemnify and hold the Company
harmless for the payment of all such withholding taxes and charges.
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4. COMPENSATION.
(c) The Company agrees to pay Consultant a fee by the issuance 100,000
shares of its common stock, $.001 par value per share; provided that such shares
of common stock shall be issued pursuant to and shall be subject to the filing
with the SEC and effectiveness of a Registration Statement on Form S-8 covering
such shares. Subject to the effectiveness of the Form S-8 Registration Statement
covering the fee to be paid hereunder, one or more certificates shall be issued
to the Consultant at such address as the Consultant shall provide to the
Company.
(d) A copy of the Form S-8 registration statement referred to in
subsection (a) above shall be provided to the Consultant prior to the issuance
and delivery of the shares to be issued hereunder, together with a copy of all
quarterly, annual or current reports or other documents incorporated therein by
references and all other reports filed or publicly disseminated by the Company
following the effectiveness of the registration statement until such time as all
of the shares issued hereunder have been sold or otherwise transferred.
5. CONFIDENTIAL INFORMATION
(b) During the term of this Agreement, the Company may disclose certain
Confidential Information (as hereinafter defined) to Consultant for the purpose
of enabling Consultant to perform certain services under this Agreement for the
Company. Consultant and his employees, agents and representatives shall not
disclose to any other individual, partnership, corporation or entity of any
kind, other than authorized employees of the Consultant (who shall agree to be
bound by the confidentiality provisions of this Agreement), or, use or exploit
any and all Confidential Information of the Company for any purpose or activity
other than as necessary to perform his obligations under, or as expressly
contemplated by, this Agreement. Consultant agrees to keep such information
confidential by using the same care and discretion that he uses with his own
Confidential Information. Confidential Information may be communicated orally,
in writing, or in any other recorded or tangible form. For purposes of this
Agreement, "Confidential Information" shall include all material and information
of a proprietary nature relating to the Company's present business and business
relationships, the development of its business and/or proposed business,
including but not limited to confidential information concerning the Company's
products, methods, engineering designs and standards, trade secrets, analytical
techniques, technical information, pricing practices, costs, profit margins,
customer information, marketing practices, employee information and similar
items of the Company. Consultant also agrees that this duty extends to
information regarding all financial, technical, and other related matters to
which the Company might have access, directly or indirectly. All information
relating to the Company shall be presumed to be Confidential Information unless
it falls within one of the classes of information that is freely disclosable
under subsection (b) below.
(b) The provisions of this Section 5 shall not apply or shall cease to
apply to data and information supplied by the Company to Consultant if it was
already known to Consultant; or has come into the public domain without breach
of confidence by Consultant or any other person; or is required to be disclosed
pursuant to any statutory requirement or court order.
(c) The provisions of this Section 5 shall survive the termination of
this Agreement for whatever reason.
6. LOCK UP RESTRICTIONS
(a) Notwithstanding any other provision of this Agreement, the
Consultant will not, for a period beginning on the date of this Agreement and
for a period of one (1) year thereafter (the "Lock-Up Period"), offer, sell,
contract to sell, transfer, assign, contract to assign, gift, grant any option
or warrant to purchase or right to acquire, announce his intention to sell,
pledge, exchange, contract to exchange, or otherwise dispose or contract to
dispose of, 50,000 of the shares of common stock issued pursuant to Section 4(a)
hereinabove (the "Lock Up Shares"); except that, during the Lock-Up Period, the
Consultant may make intra-family transfers or transfers to trusts for estate
planning purposes of such Lock Up Shares provided that any such person or
organization agrees to be bound by the foregoing restrictions on the disposition
of such securities. It is specifically agreed that the Lock Up Shares will be
held in certificated form and not in DTC form or other "street name" form.
Furthermore, the Consultant agrees that the Lock Up Shares shall bear a legend
making reference to this Agreement, which shall be placed on file with the
transfer agent.
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(b) The Consultant further understands and agrees that the Company will
place stop transfer instructions against the Lock Up Shares (and any other
shares of capital stock of the Company now or hereafter issued by the Company in
a stock split, stock dividend or similar with regard to the Lock Up Shares), in
accordance with the restrictions set forth in this Section 6.
7. MISCELLANEOUS.
(a) TERMINATION. This Agreement may be terminated by: (i) the mutual
agreement of the Company and Consultant; (ii) by either party hereto if there
has been a material misrepresentation by the other party hereto or a material
breach of this Agreement by such other party; (iii) by the Company in the event
any action is commenced by the SEC or any state securities commission against
Consultant or any entity controlled by, or under common control with,
Consultant; or (iv) at any time by either party, for any reason, on not less
than 30 days prior written notice to the other party; provided that in the case
of a termination by the Company pursuant to this subsection (iv), Consultant
shall be entitled to receive as compensation for all services hereunder all of
the shares set forth in Section 4 of this Agreement and further that the
services performed by Consultant prior to the effective date of any such
termination will be deemed sufficient to entitle Consultant to such full
compensation.
(b) ENTIRE AGREEMENT; AMENDMENT. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement may be amended only in writing signed by both Parties.
(c) NOTICES. Any notice, consent, waiver, or other communication
required or permitted to be given hereunder must be in writing and will be
deemed to have been delivered personally: (i) upon receipt, when delivered
personally; (ii) three (3) days after being sent by U.S. certified mail, return
receipt requested; or (iii) one (1) day after deposit with a nationally
recognized overnight delivery service, in each such case properly addressed to
the party to receive the same. The addresses for such communications shall be:
Company: Guardian Technologies International, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: President
Tel: 000.000.0000
Fax: 000.000.0000
Consultant: Xx. X.X. Xxxxxxxx
0000 X. Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: 000.000.0000
Fax: (000) 000.0000
(d) WAIVER. Any waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon adherence to that term
of any other term of this Agreement.
(g) ASSIGNMENT. This Agreement may not be assigned by the Consultant
for any reason.
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(h) SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable, the balance of this Agreement shall remain
in effect and, if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
(g) ARBITRATION. Any dispute or other disagreement arising from or out
of this Agreement or any claim by Consultant as a present or former stockholder
or security holder of the Company shall be submitted to binding arbitration
under the Federal Arbitration Act in accordance with the commercial arbitration
rules of the American Arbitration Association and the decision of the arbiter(s)
shall be enforceable in any court having jurisdiction thereof. In arbitration
proceedings under this subsection (g), the parties shall be entitled to any and
all remedies that would be available in the absence of this subsection (g) and
the arbitrators, in rendering their decision, shall follow the substantive laws
that would otherwise be applicable. Arbitration shall occur only in Washington
D.C. In the event any dispute is arbitrated, the prevailing party (as determined
by the arbiter(s)) shall be entitled to recover that party's reasonable
attorney's fees incurred (as determined by the arbiter(s)). Notwithstanding the
foregoing, in order to preserve the status quo pending the resolution by
arbitration of a claim seeking relief of an injunctive or equitable nature, any
party, upon submitting a matter to arbitration as required by this subsection
(g), may simultaneously or thereafter seek a temporary restraining order or
preliminary injunction from a court of competent jurisdiction pending the
outcome of the arbitration.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, without regard to the
conflict of law provisions of such state. Signed facsimile copies of this
Agreement shall be valid and binding upon the parties hereto.
(i) COUNTERPARTS. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same document.
(j) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(k) FURTHER ASSURANCES. At any time and from time to time after the
execution hereof, Consultant shall execute such additional documents or
instruments and take such action as may be reasonably requested by the Company
to carry out the intent and purpose of this Agreement, and furnish such
additional information as shall be deemed necessary by the Company or its
counsel in connection with the filing by the Company of the Form S-8
registration statement contemplated by Section 4 hereinabove.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
GUARDIAN TECHNOLOGIES
INTERNATIONAL, INC. CONSULTANT
By: /s/ Xxxxxxx X. Xxxxxxx Signed: /s/ X.X. Xxxxxxxx
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Its: Chief Executive Officer Name: X.X. Xxxxxxxx
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