CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement") dated as of __ day of May between
Xxxxxxxxxxxx.xxx, Inc. (the "Company"), a Nevada corporation, and Xxxxx X.
Xxxxxx (Consultant), a British Columbia resident.
WHEREAS, the Company desires to retain Consultant to render consulting and
advisory services for the Company on the terms and conditions set forth in this
Agreement, and Consultant desires to be retained by the Company on such terms
and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Engagement of Consultant; Services to be Performed.
1.1. The Company hereby retains Consultant to render such consulting and
advisory services as the Company may request. Consultant hereby
accepts such engagement and agrees to perform such services for the
Company upon the terms and conditions set forth in this Agreement.
1.2. During the Term (as defined in Section 2), Consultant shall devote
such time, attention, skill and energy to the business of the Company
as may be reasonably required to perform the services required by this
Agreement up to a maximum time commitment of 100 hours in any calendar
month, and shall assume and perform to the best of his ability such
reasonable responsibilities and duties as the Company shall assign to
Consultant from time to time.
1.3. Consultant shall perform the services hereunder primarily at the
Company's principal office but he shall, at the Company's expense,
also be required to render the services at such other locations as the
Company may specify from time to time.
1.4. In rendering services hereunder, Consultant shall be acting as an
independent contractor and not as a employee or agent of the Company.
As an independent contractor, Consultant shall have no authority,
express or implied, to commit or obligate the Company in any manner
whatsoever, except as specifically authorized from time to time in
writing by an authorized representative of the Company, which
authorization may be general or specific. Nothing contained in this
Agreement shall be construed or applied to create a partnership.
Consultant shall be responsible for the payment of all federal, state,
provincial or local taxes payable with respect to all amounts paid to
Consultant under this Agreement; provided, however, that if the
Company is determined to be liable for collection and/or remittance of
any such taxes, Consultant shall immediately reimburse the Company for
all such payments made by the Company.
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2. Term. Unless terminated at an earlier date in accordance with Section 4,
this Agreement shall commence as of the date first written above and shall
continue for a continuous period of sixty (60) months (the "Term").
3. Compensation.
3.1 Compensation As compensation in full for Consultant's services
hereunder, the Company shall pay to Consultant a consulting fee at the
rate of $1,000 per month. Should Consultant incur greater than 100
hours per month providing consulting services to the Company under
this Agreement, the Company shall pay Consultant at the rate of $50
per hour plus applicable taxes in excess of 100 hours upon receipt of
a satisfactory invoice therefor. The consulting fee shall be payable
to Consultant in arrears at the end of each calendar month during the
Term and a prorated portion of such fee shall be payable upon
termination of this Agreement if such termination occurs other than at
the end of a month.
3.2 Stock Options. The Company also agrees to offer to the Consultant the
option to purchase, upon the terms and conditions set forth in this
Section 3, eight hundred thousand (800,000) common shares (the
"Options").
3.3. Exercise Price. The exercise price of the Options shall be as follows:
Number of Options Exercise Price
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400,000 $0.10
400,000 $0.25
3.4. Vesting. The Options shall be fully vested and exercisable as of the
date of this Agreement.
3.5. Options not Transferable. Unless otherwise specified in this Agreement
or by the Board of Directors of the Company (the "Board"), this Option
and the rights and privileges conferred by this Agreement may not be
transferred, assigned, pledged or hypothecated in any manner (whether
by operation of law or otherwise) other than by will or by applicable
laws of descent and distribution and shall not be subject to
execution, attachment or similar process. Upon any attempt to
transfer, pledge, hypothecate or otherwise dispose of any Option or of
any right or privilege conferred by this Agreement contrary to the
provisions hereof, or upon the sale, levy or attachment or similar
process upon the rights and privileges conferred by this Agreement,
such Option shall thereupon terminate and become null and void.
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3.6. Expiration and Termination: Options shall expire on the earlier of:
(a) May 15, 2005.
(b) Termination of Service as Consultant: The expiration of thirty
(30) days from the date of the Consultant's removal (with or without
cause) pursuant to Section 4 of this Agreement, resignation or other
termination as consultant.
(c) Termination Due to Death or Disability: The expiration of one (1)
year from the date of the death or Disability (as defined below) of
the Consultant, assuming that Consultant was serving as consultant at
the time of such death or Disability.
Notwithstanding the occurrence of one of the above events, the exercise
period may be extended in the sole discretion of the Board until a date not
later than the expiration date of the Options. If Consultant's term as
advisory member is terminated by death, any Options held by the Consultant
shall be exercisable only by the person or persons to whom such
Consultant's rights under such Options shall pass by the Consultant's will
or by the laws of descent and distribution of the state or county of the
Consultant's domicile at the time of death.
3.7. Distributions, Reorganization or Liquidation. In the case of any share
distribution, share split, liquidation or like change in the nature of
common shares covered by this Agreement, the number of common shares
and exercise price shall be proportionately adjusted as set forth
below.
(a) If (i) the Company shall at any time be involved in a transaction
described in Section 424(a) of the Code (or any successor provision)
or any "corporate transaction" described in the regulations
thereunder; (ii) the Company shall declare a distribution payable in,
or shall subdivide or combine, its common shares or (iii) any other
event with substantially the same effect shall occur, the Board shall,
with respect to each outstanding Option, proportionately adjust the
number of shares of common shares and/or the exercise price per common
shares so as to preserve the rights of the Consultant substantially
proportionate to the rights of the Consultant prior to such event, and
to the extent such action shall include an increase or decrease in the
number of common shares subject to outstanding options, the number of
Common Shares available under this Agreement shall automatically be
increased or decreased, as the case may be, proportionately, without
further action on the part of the Board, the Company or the Company's
shareholders.
(b) If the Company is liquidated or dissolved, the Options may be
exercised prior to the effective date of such liquidation or
dissolution. If the Consultant does not exercise his Options prior to
such effective date, each outstanding option shall terminate as of the
effective date of the liquidation or dissolution.
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3.8. Exercise of Options. The Options shall be exercisable, in whole or in
part, until termination; provided, however, if the Consultant is
subject to the reporting and liability provisions of Section 16 of the
Securities Exchange Act of 1934 (the "Exchange Act") with respect to
the common shares, he shall be precluded from selling or transferring
any common shares or other security underlying an Option during the
six (6) months immediately following the grant of that Option. If less
than all of the Common Shares included in the Options are purchased,
the remainder may be purchased at any subsequent time prior to the
expiration of the Option term. Only whole Common Shares may be issued
pursuant to the Options, and to the extent that the Options cover less
than one (1) Common Share, they are unexercisable.
Each exercise of the Option shall be by means of delivery of a notice
of election to exercise (which may be in the form attached hereto as
Exhibit A) to the Company at its principal executive office,
specifying the number of common shares to be purchased and accompanied
by payment in cash by certified check or cashier's check in the amount
of the full exercise price for the Common Shares to be purchased.
During the lifetime of the Consultant, the Options are exercisable
only by the Consultant.
3.9. Professional Advice. The acceptance of the Options and the sale of
Common Shares issued pursuant to the exercise of Options may have
consequences under federal and state tax and securities laws, which
may vary depending upon the individual circumstances of the
Consultant. Accordingly, the Consultant acknowledges that he has been
advised to consult his personal legal and tax advisor in connection
with this Agreement and his dealings with respect to the Options for
the Common Shares. Without limiting other matters to be considered,
the Consultant should consider whether upon the exercise of Options,
the Consultant will file an election with the Internal Revenue Service
pursuant to Section 83(b) of the Code.
4. Termination By the Company.
4.1 For Cause. Company will have the right to immediately terminate
Consultant's services and this Agreement for cause. "Cause" means: any
material breach of this Agreement by Consultant, including, without
limitation, breach of Consultant's covenants in Sections 6 and 7; any
failure to perform assigned job responsibilities that continues
unremedied for a period of ten (10) days after written notice to
Consultant by Company; conviction of a felony or failure to contest
prosecution for a felony; violation of any statute, rule or
regulation, any of which in the judgment of Company is harmful to the
business of the Company or to Company's reputation; unethical
practices; dishonesty; disloyalty; or any reason that would constitute
cause under the laws of Nevada. Upon termination of Consultant's
engagement hereunder for cause or upon the death or disability of
Consultant, Consultant will have no rights to any unvested benefits or
any other compensation or payments after the termination date or the
last day of the month
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in which Consultant's death or disability occurred.
For purposes of this Agreement, "disability" means the incapacity or
inability of Consultant, whether due to accident, sickness or
otherwise, as determined by a medical doctor acceptable to the Board
of Directors of Company and confirmed in writing by such doctor, to
perform the essential functions of Consultant's position under this
Agreement, with or without reasonable accommodation (provided that no
accommodation that imposes undue hardship on Company will be required)
for an aggregate of ninety (90) days during any period of one hundred
eighty (180) consecutive days.
4.2 Without Cause. Company may terminate Consultant's engagement under
this Agreement without cause and without advance notice; provided,
however, that Company will continue to pay, as severance pay,
Consultant's Base Salary at the rate in effect on the termination date
for a period of ten (10) days; provided, further, that Company will be
entitled to offset any severance pay otherwise payable to Consultant
by the amount of any compensation or consulting fees being paid to
Consultant by another party while severance pay would otherwise be
payable. Such payments will be at usual and customary pay intervals of
Company and will be subject to all appropriate deductions and
withholdings. Upon termination, Consultant will have no rights to any
unvested benefits or any other compensation or payments except as
stated in this paragraph.
4.3 Termination By Consultant. Consultant may terminate Consultant's
engagement under this Agreement for any reason provided that
Consultant gives Company at least thirty (30) days' notice in writing.
Company may, at its option, accelerate such termination date to any
date at least two weeks after Consultant's notice of termination.
Company may, at its option, relieve Consultant of all duties and
authority after notice of termination has been provided. All
compensation, payments and unvested benefits will cease on the
termination date.
5. Expenses. In addition to the payment of consulting fees set forth above,
the Company shall reimburse Consultant all actual out-of-pocket costs for
long-distance telephone services, facsimile transmissions, photocopying,
courier services and postage, and all reasonable travel, lodging and per
diem expenses, that he shall incur in connection with the rendering of
Consultant's services; provided that the Company shall have no obligation
to reimburse any of such expenses except upon provision by Consultant of
adequate documentation thereof in such form as the Company shall reasonably
request; and provided further, that the Company shall have no such
obligation in respect of any travel, lodging or per diem expenses unless
the travel to which such expenses relate shall have been authorized in
advance by the Company.
6. Ownership of Intellectual Property.
6.1 Background Technology. Exhibit B hereto lists any and all technology
that (i) Consultant intends to use in performing the services
hereunder, (ii) is either
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owned solely by Consultant or licensed to Consultant with a right to
sublicense and (iii) is in existence in the form of a writing or
working prototype prior to the date of this Agreement ("Background
Technology").
6.2 Notification and Disclosure. Consultant shall promptly notify the
Company in writing of the existence and nature of, and shall promptly
and fully disclose to the Company, any and all ideas, designs,
practices, processes, apparatus, improvements and inventions (all of
which are hereinafter referred to as "Inventions") that Consultant has
conceived or first actually reduced to practice and/or may conceive or
first actually reduce to practice during the Term or which Consultant
may conceive or reduce to practice within six months after the Term,
if such inventions relate to a product or process upon which
Consultant worked during the Term or during the period of his/her
engagement.
6.3 Ownership of Inventions. All such inventions shall be the sole and
exclusive property of the Company or its nominee during the Term and
thereafter, and, except for Consultant's rights in any Background
Technology, Consultant hereby assigns to the Company all its right,
title and interest in and to any and all such inventions.
Whenever the Company so requests, Consultant shall execute and assign
any and all applications, assignments and other instruments that the
Company shall deem necessary or convenient in order to apply for and
obtain Letters Patent of the United States and/or of any foreign
countries for such inventions and in order to assign and convey to the
Company or its nominee the sole and exclusive right, title and
interest in and to all such inventions.
Consultant shall aid and assist the Company in any interference or
litigation pertaining to such inventions, and the Company shall bear
all expenses reasonably incurred by Consultant at the request of the
Company. In this connection, if any such aid or assistance requires
any expenditure of Consultant's time after the Term, Consultant shall
be entitled to compensation for the time requested by the Company at a
rate equal to the pro rata rate at which Consultant was being paid for
a normal pay period immediately prior to the end of the Term.
6.4 Limitation. Sections 6.2 and 6.3shall not apply to any invention
meeting the following conditions:
(i) such invention was developed entirely on Consultant's own time;
(ii) such invention was made without the use of any of the equipment,
supplies, facility or trade secret information of the Company;
(iii)such invention does not relate (i) directly to the business of
the Company or (ii) to the Company's actual or demonstrably
anticipated research or development; and
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(iv) such invention does not result from any service performed by
Consultant for the Company.
6.5 Copyrightable Material. All right, title, and interest in all
copyrightable material which Consultant shall conceive or originate,
either individually or jointly with others, and which arise out of the
performance of this Agreement, will be the property of the Company and
are hereby assigned to the Company along with ownership of any and all
copyrights in the copyrightable material. Consultant agrees to execute
all papers and perform all other acts necessary to assist the Company
to obtain and register copyrights on such materials in any and all
countries. Where applicable, works of authorship created by Consultant
for the Company in performing the services hereunder shall be
considered "works made for hire" as defined in the U.S. Copyright Act.
6.6 Survival. This Section 6 shall survive the Term.
7. Protection of Trade Secrets, Know-How and/or Other Confidential Information
of the Company.
7.1 Confidential Information. Except as permitted or directed by the
Company, during the Term or at any time thereafter Consultant shall
not divulge, furnish or make accessible to anyone or use in any way
(other than in the ordinary course of the business of the Company) any
confidential or secret knowledge or information of the Company that
Consultant has acquired or become acquainted with or will acquire or
become acquainted with during the Term or during engagement by the
Company prior to the Term, whether developed by Consultant or by
others, concerning any trade secrets, confidential or secret designs,
processes, formulae, products or future products, plans, devices or
material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company, any
customer or supplier lists of the Company, any confidential or secret
development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company.
Consultant acknowledges that the above-described knowledge or
information constitutes a unique and valuable asset of the Company
acquired at great time and expense by the Company and its
predecessors, and that any disclosure or other use of such knowledge
or information other than for the sole benefit of the Company would be
wrongful and would cause irreparable harm to the Company. Both during
and after the Term, Consultant will refrain from any acts or omissions
that would reduce the value of such knowledge or information to the
Company. The foregoing obligations of confidentiality, however, shall
not apply to any knowledge or information which is now published or
which subsequently becomes generally publicly known in the form in
which it was obtained from the Company, other than as a direct or
indirect result of the breach of this Agreement by Consultant.
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7.2 Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by Consultant which arises out of the
performance of the services hereunder or any related material or
information shall be the property of the Company, and all rights
therein are hereby assigned to the Company.
7.3 Return of Records. Upon termination of this Agreement, Consultant
shall deliver to the Company all property that is in his possession
and that is the Company's property or relates to the Company's
business, including, but not limited to records, notes, data,
memoranda, software, electronic information, models, equipment, and
any copies of the same.
8. Miscellaneous.
8.1. Entire Agreement. This Agreement (including any exhibits, schedules
and other documents referred to herein) contains the entire
understanding between the parties hereto with respect to the subject
matter hereof and supersedes any prior understandings, agreements or
representations, written or oral, relating to the subject matter
hereof.
8.2. Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together
shall constitute one and the same agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
8.3. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to
be invalid, illegal or unenforceable under any applicable law or rule,
the validity, legality and enforceability of the other provision of
this Agreement will not be affected or impaired thereby.
8.4. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs,
personal representatives and, to the extent permitted by subsection
(e), successors and assigns.
8.5. Assignment. This Agreement and the rights and obligations of the
parties hereunder shall not be assignable, in whole or in part, by
either party without the prior written consent of the other party.
8.6. Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No
course of dealing between the parties will modify, amend, waive or
terminate any provision of this Agreement or any rights or obligations
of any party under or by reason of this Agreement.
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8.7. Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and
delivered by personal delivery, overnight courier, mail, electronic
facsimile or e-mail addressed to the receiving party at the address
set forth herein. All such communications shall be effective when
received.
Xxxxx X. Xxxxxx
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Any party may change the address set forth above by notice to each
other party given as provided herein.
8.8. Headings. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
8.9. Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
8.10.Third-Party Benefit. Nothing in this Agreement, express or implied,
is intended to confer upon any other person any rights, remedies,
obligations or liabilities of any nature whatsoever.
0.00.Xx Waiver. No delay on the part of the Company in exercising any
right hereunder shall operate as a waiver of such right. No waiver,
express or implied, by the Company of any right or any breach by
Consultant shall constitute a waiver of any other right or breach by
Consultant.
8.12.Jurisdiction and Venue. THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL
COURT OR STATE COURT SITTING IN NEVADA, AND EACH PARTY CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT
VENUE IN SUCH FORUM IS NOT CONVENIENT. IF ANY PARTY COMMENCES ANY
ACTION UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR
INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT IN ANOTHER
JURISDICTION OR VENUE, ANY OTHER PARTY TO THIS AGREEMENT SHALL HAVE
THE OPTION OF TRANSFERRING THE CASE TO THE ABOVE-DESCRIBED VENUE OR
JURISDICTION OR, IF SUCH TRANSFER CANNOT BE ACCOMPLISHED, TO HAVE SUCH
CASE DISMISSED WITHOUT PREJUDICE.
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8.13.Remedies. The parties agree that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any
party may, in its discretion, apply to any court of law or equity of
competent jurisdiction for specific performance and injunctive relief
in order to enforce or prevent any violations this Agreement, and any
party against whom such proceeding is brought hereby waives the claim
or defense that such party has an adequate remedy at law and agrees
not to raise the defense that the other party has an adequate remedy
at law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth in the first paragraph.
Xxxxxxxxxxxx.xxx, Inc.
By ----------------------------------------
Its ----------------------------------------
CONSULTANT
By ----------------------------------------
Xxxxx X. Xxxxxx
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