CONSULTANT AGREEMENT
Exhibit
10.4
AGREEMENT
dated as of August 8, 2007 between TIX
CORPORATION,
a
Delaware corporation (“COMPANY”),
and
XXX
X. XXXXXXXX
(“CONSULTANT”).
RECITALS
WHEREAS,
Company is desirous of achieving maximum performance from its acquisition of
the
assets of Exhibit Merchandising LLC, an Ohio limited liability company
(“EM”),
and
Company wishes to employ Consultant as its consultant toward achieving that
goal, and Consultant is willing to be a Consultant of Company, on the terms
and
subject to the conditions hereinafter set forth; and
WHEREAS,
the Consultant was President of EM and is familiar with the business of
EM.
NOW
THEREFORE, for and in consideration of the mutual promises herein contained,
it
is mutually agreed as follows:
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1.
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Engagement;
Nature of Duties
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(a) The
Company hereby engages Consultant, for the period hereinafter set forth, to
serve as and act in such capacity on a non-exclusive basis. Consultant agrees
to
serve in such capacity and to do and perform the services, acts, or things
necessary to carry out the duties of Consultant’s position. Consultant’s
services shall consist of the following:
Consultant
shall be a member of Company’s transition, assimilation, and operating team
relating to the assets of EM and the operation of the business relating to
such
assets.
(b) Company
only is interested in the results to be obtained by Consultant. Consultant
shall
have the exclusive control over the methods and means he uses to perform the
services, acts, or things set forth in this Agreement.
(c) Should
a
disagreement arise between Consultant and Company with respect to any of
Consultant’s recommendations related to the transition, assimilation or
operation of EM, the disagreement shall be resolved by a committee consisting
of
Consultant, Xxxxx Xxxxxxx, and Xxxxxxxx Xxxxx.
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2.
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Term
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The
term
of this Agreement shall be for a period of two (2) years, commencing on the
closing of the acquisition by Company of EM unless sooner terminated in
accordance with the provisions hereof (the “Term”).
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3.
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Performance
of Duties
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Consultant
hereby accepts the assignment and agrees to devote so much of his time as is
reasonably necessary to adequately perform his duties to the business and
affairs of Company. Consultant shall receive all necessary and appropriate
information from Company for the performance of his duties.
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4.
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Compensation
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As
sole
compensation, Company shall pay to Consultant for all services rendered by
him
hereunder 100,000 restricted shares of the Company’s common stock (the
“Shares”)
to be
issued within five days from the date hereof as follows: 50,000 Shares to
Consultant and 50,000 Shares to Xxxxxx X. Xxxxx. Consultant acknowledges
that the Shares have not been registered under the Securities Act of 1933,
as
amended, and the certificate evidencing the Shares will bear a restricted
legend. Consultant is acquiring the Shares for investment purposes only and
not
with a view to distribution.
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5.
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Independent
Contractor
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By
virtue
of this agreement the parties do not intend to establish a relationship of
employer-employee between Company and Consultant. Accordingly none of such
obligations shall apply, including but not limited to, the requirement to
withhold taxes of any nature from compensation, to provide xxxxxxx’x
compensation coverage, vacation, sick leave, or other employment benefits.
Furthermore, Consultant shall not be required to perform his duties at the
offices of Company nor may he be required to devote all of his time to the
business of Company. Consultant is free to engage in any other activities
Consultant desires, so
long
as Independent Contractor complies with the terms of this Agreement and the
Noncompetition and Confidentiality Agreement between Company and Consultant
of
even date herewith. Company
may not advise Consultant as to the time, date or hours to work on the subject
matter hereof. Accordingly, Consultant shall maintain the status of an
independent contractor.
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6.
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Termination
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This
Agreement may be terminated by Company without cause upon serving written notice
to the Consultant to the address provided herein under “Notice.” In such event,
Consultant will be entitled to retain the Shares.
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7.
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Proprietary
Information
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All
documents, papers, computer files and other electronic records or data (whether
written, printed, on video or audio tape or otherwise reproduced or recorded)
containing or relating to any such information, whether made or compiled by,
or
delivered or made available to, or otherwise obtained by Consultant, shall
be
returned by it to Company at the time of the termination of his services
hereunder or upon any earlier request by Company, without his retaining any
copies, notes or excerpts thereof.
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8.
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Expenses
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Company
shall provide reimbursement for reasonable expenses which have been duly
authorized in advance by written memorandum.
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9.
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Confidentiality
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Consultant
acknowledges that the non-public information provided to him by Company relating
to Company is confidential and a valuable asset of the Company and is and at
all
times shall remain the exclusive property of the Company.
Consultant’s
obligation regarding the confidential information of the Company will not apply
to information (1) already known by Consultant prior to disclosure of such
information by the Company (2) already publicly known at the time of its
disclosure hereunder, or which becomes hereafter publicly known otherwise than
through an act by Consultant or, (3) already known to Consultant at said time
as
a result of his own research, development or other activities. Should Consultant
find that an item of information disclosed hereunder by the Company and
designated proprietary or confidential falls under items (1), (2), or (3) above,
then, the Consultant shall promptly give written evidence thereof to the
Company.
Consultant
shall not directly or indirectly use or provide any other person or entity
access to the Confidential Information of the Company. Without limiting the
generality of the foregoing “providing access” includes disclosure, sale,
copying, dissemination, publishing, broadcasting or reproduction by any means
whatsoever. Consultant agrees that he shall not make any disclosure consonant
with the foregoing unless the persons to whom such disclosure will be made
are
subject to the confidential covenant set forth in this Agreement or
substantially similar covenant set forth in a separate agreement approved by
the
Company.
Upon
written request from the Company, Consultant shall forthwith return all the
Confidential Information in or subject to his control and destroy all written
notes, memorandums or other documents, electronic files and records, diagrams,
models and photographs or other demonstrative information.
A
breach
of any provision hereof shall entitle the Company to monetary damages and/or
injunctive relief either together or in the alternative as the Company may
determine.
As
used
herein, “Company”
shall
also include Exhibit Merchandising, LLC, a Nevada limited liability
company.
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10.
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Notice
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Any
notice or other document hereunder may be given or tendered by registered or
certified mail:
To
Company:
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To
Consultant:
XXX
X.
XXXXXXXX
000
X.
Xxxxxxxx Xx.
Xxxxxx,
XX 00000
Fax:
330/000-0000
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11.
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Entire
Agreement and Modification
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This
Agreement may not be modified or terminated orally and shall be binding upon
and
inure to the benefit of the parties hereto, but neither this Agreement nor
any
rights hereunder may be assigned, pledged or encumbered by Consultant. This
Agreement contains the entire understanding of the parties with respect to
its
subject matter, and on entering into it neither party has relied upon any
representation, warranty or covenant not expressly set forth herein. No
supplement, modification, waiver or termination of this Agreement shall be
binding unless made in writing and executed by the party thereto to be
bound.
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12.
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Miscellaneous
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This
Agreement entered into and deemed to be performed in the County of Los Angeles
shall be governed by and construed in accordance with the laws of the State
of
California. In the event of dispute between the parties hereto it is agreed
that
the parties shall settle such dispute by binding private judicial arbitration
or
trial utilizing a private retired judge in the County of Los Angeles.
If
any
provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the Parties hereby agree that the validity
of any other provision and of the entire Agreement shall not be affected
thereby.
The
Article and Section headings of this Agreement are included for reference only,
and shall not constitute any part of this Agreement in construing or
interpreting this Agreement.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one
and
the same instrument.
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IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement as of the day and year set
forth.
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TIX
CORPORATION
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| By: | ||
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Name: XXXXX
XXXXXXX
Title: CEO
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XXX X. XXXXXXXX |
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