CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered into in
duplicate and shall be effective on August 15, 2002 ("Effective Date"), by and
between Aegis Assessments, Inc., a Delaware corporation ("Corporation"), and
Xxxxxx Xxxxxx ("Consultant").
RECITALS
A. It is the desire of the Corporation to engage the services of the
Consultant to consult with the Corporation regarding the marketing, development
and implementation of the Corporation's command and control system, the Aegis
SafetyNet(TM), and the technologies which constitute that system, including but
not limited to the Aegis Ground/Air Video Link System (the "Aegis GAVLS(TM)"),
and related wireless technology and software (collectively, the
"SafetyNet(TM)").
B. It is the desire of the Consultant to so consult with the Board of
Directors of the Corporation ("Board") and the officers of the Corporation
concerning the development and implementation of the SafetyNet(TM).
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of the
parties shall commence on the Effective Date and shall continue until and
terminate on March 1, 2003.
2. Consultations. The Consultant shall consult with the Board and the
officers of the Corporation, at reasonable times, concerning any issue of
importance regarding the marketing, development and implementation of the
SafetyNet(TM)and related software.
3. Service as a Director of the Corporation. The business affairs of
the Corporation and the operation of the business of the Corporation shall be
conducted by the officers and administrative staff and employees of the
Corporation. In his capacity as a consultant, the Consultant shall not have any
power or obligation of direction, management, supervision or control of the
officers, administrative staff or other employees of the Corporation or
otherwise be involved with the management of the business of the Corporation
during the term of this Agreement. However, the Consultant has accepted
appointment to the Board as a director of the Corporation for a one-year period
beginning August 15, 2002 and terminating no earlier than August 15, 2003
(subject, however, to any lawful removal for cause by the Board or shareholders
of the Corporation prior to that date) and therefore, in his capacity as a
director of the Corporation, Consultant shall have such powers of management,
supervision and control as every other director of the Corporation, subject at
all times to the Delaware General Corporation Law and the bylaws of the
Corporation; nor shall any provision of this Agreement limit such powers of
management, supervision and control rightfully enjoyed by Consultant in his
capacity as a director of the Corporation.
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4. Authority to Contract. The Consultant, in his capacity as a
consultant, shall have no power to, and the Consultant shall not, obligate the
Corporation in any manner whatsoever to any contract, agreement, undertaking,
commitment or other obligation.
5. Compensation. The Corporation has determined that the value of the
Consultant's services for the period commencing on the Effective Date and
terminating on March 1, 2003 is $2,500.00. In lieu of cash compensation, the
Corporation shall issue and deliver to Consultant options to purchase 400,000
shares of the Corporation's common stock at $0.30 per share with an exercise
period that begins on the Effective Date and expires 3 years after the effective
date. The Corporation shall register the shares underlying those options for
resale by Consultant in the first Registration Statement on Form S-8 which the
Corporation files with the Securities and Exchange Commission.
6. Services of Consultant Not Exclusive. The Consultant shall devote
such time as is necessary to fulfill his obligations to the Corporation
specified in this Agreement. The Consultant may represent, perform services for,
and be employed by, any additional persons as the Consultant, in the
Consultant's sole discretion, determines to be necessary or appropriate.
7. Relationship Created. The Consultant is not an employee of the
Corporation for any purpose whatsoever, but is an independent contractor. The
Corporation is interested only in the results obtained by the Consultant. The
Consultant shall have the sole and exclusive control of the manner and means of
performing. Accordingly, and without limitation, the Corporation shall not have
the right to require the Consultant to collect accounts, investigate customer or
shareholder complaints, attend meetings, periodically report to the Corporation,
follow prescribed itineraries, keep records of business transacted, make
adjustments, conform to particular policies of the Corporation, or do anything
else outside of requiring the Consultant to consult with the Corporation
concerning the marketing, development and implementation of the SafetyNet.(TM)
All expenses and disbursements, including, but not limited to, those for travel
and maintenance, entertainment, office, clerical and general administrative
expenses, that may be incurred by the Consultant in connection with this
Agreement shall be borne and paid wholly and completely by the Consultant, and
the Corporation shall not be in any way responsible or liable therefor.
7.1 New Developments. Consultant agrees that all designs, plans,
reports, specifications, drawings, inventions, processes, and other information
or items produced by Consultant concerning the marketing, development and
implementation of the SafetyNet(TM) will be assigned to the Corporation as the
sole and exclusive property of the Corporation and the Corporation's assigns,
nominees and successors, as will any copyrights, patents or trademarks obtained
by Consultant while performing services under this Agreement concerning the
marketing, development and implementation of the SafetyNet(TM). On request and
at the Corporation's expense, Consultant agrees to help the Corporation obtain
patents and copyrights for any new developments. This includes providing data,
plans, specifications, descriptions, documentation , and other information, as
well as assisting the Corporation in completing any required application or
registration.
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7.2 Non-Disclosure of Proprietary and Confidential Information By
Consultant. During the term of this Agreement, Consultant may have access to
Corporation Proprietary Information (as used in this Section 7.2 of this
Agreement, the term "Corporation Proprietary Information" shall mean and
include, without limitation, any and all marketing and sales data, plans and
strategies, financial projections, client lists, prospective client lists,
promotional ideas, data concerning the Corporation's services, designs, methods,
inventions, improvements, discoveries, designs whether or not patentable,
"know-how", training and sales techniques, and any other information of a
similar nature disclosed to Consultant or otherwise made known to Consultant as
a consequence of or through this Agreement during the term hereof. The term
Corporation Proprietary Information shall not include any information that (i)
at the time of the disclosure or thereafter is or becomes generally available to
and known by the public, other than as a result of a disclosure by Consultant or
any agent or representative of Consultant in violation of this Agreement, or
(ii) was available to Consultant on a non-confidential basis from a source other
than the Corporation, or any of the Corporation's officers, directors,
employees, agents or other representatives) or other information and data of a
secret and proprietary nature which the Corporation desires to keep
confidential. Consultant (and any of his affiliates, related entities, partners,
agents and/or employees) agrees and acknowledges that the Corporation has
exclusive proprietary rights to all Corporation Proprietary Information, and
Consultant hereby assigns to the Corporation all rights that he might otherwise
possess in any Corporation Proprietary Information. Except as required in the
performance of Consultant's duties to the Corporation, Consultant will not at
any time during or after the term hereof, directly or indirectly use,
communicate, disclose, disseminate, lecture upon, publish articles or otherwise
put in the public domain, any Corporation Proprietary Information. Consultant
agrees to deliver to the Corporation any and all copies of Corporation
Proprietary Information in the possession or control of Consultant upon the
expiration or termination of this Agreement, or at any other time upon request
by the Corporation. The provisions of this section shall survive the termination
of this Agreement.
7.3 Non-Disclosure of Proprietary and Confidential Information By the
Corporation. During the term of this Agreement, Consultant may provide the
Corporation access to Consultant's Proprietary Information (as used in this
Section 7.3 of this Agreement, the term "Consultant's Proprietary Information"
shall mean and include, without limitation, any and all marketing and sales
data, plans and strategies, financial projections, client lists, prospective
client lists, promotional ideas, data concerning the Consultant's services,
designs, methods, inventions, improvements, discoveries, designs whether or not
patentable, "know-how", training and sales techniques, and any other information
of a similar nature disclosed to the Corporation or otherwise made known to the
Corporation as a consequence of or through this Agreement during the term
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hereof. The term Consultant's Proprietary Information shall not include any
information that (i) at the time of the disclosure or thereafter is or becomes
generally available to and known by the public, other than as a result of a
disclosure by the Corporation or any agent or representative of the Corporation
in violation of this Agreement, or (ii) was available to the Corporation on a
non-confidential basis from a source other than the Consultant, or any of the
Consultant's employees, agents or other representatives) or other information
and data of a secret and proprietary nature which the Consultant desires to keep
confidential. The Corporation (and any of its affiliates, related entities,
directors, officers, agents and/or employees) agrees and acknowledges that the
Consultant has exclusive proprietary rights to all Consultant's Proprietary
Information. The Corporation agrees that it will not at any time during or after
the term hereof, directly or indirectly use, communicate, disclose, disseminate,
lecture upon, publish articles or otherwise put in the public domain, any of the
Consultant's Proprietary Information. The Corporation agrees to deliver to
Consultant any and all copies of the Consultant's Proprietary Information in the
possession or control of the Corporation upon the expiration or termination of
this Agreement, or at any other time upon request by the Consultant. The
provisions of this section shall survive the termination of this Agreement.
7.4 Non-Competition and Non-Circumvention by Consultant. In
consideration and recognition of the fact that Consultant has access to
Corporation Proprietary Information under the terms and provisions of this
Agreement and that the Corporation will be introducing Consultant to various
customers and potential customers, product manufacturers, retailers and
distributors, Consultant represents, warrants and covenants to the Corporation
as follows:
(a) Consultant shall at no time disclose to any person,
without the Corporation's prior written consent, any
of the terms, conditions or provisions specified in
this Agreement unless such disclosure is lawfully
required by any federal governmental agency or is
otherwise required to be disclosed by law or is
necessary in any legal proceeding regarding the
subject matter of this Agreement.
(b) During the term of this Agreement, and continuing for
a period of two (2) years immediately following the
termination of this Agreement, Consultant shall not
circumvent the Corporation for the purpose of
transacting any business with any person or entity
which business shall interfere with any relationship
whatsoever between such person or entity and the
Corporation, or use any Corporation Proprietary
Information to compete with the business of the
Corporation. Consultant shall not solicit any of the
Corporation's employees, independent contractors or
agents for employment.
8. Indemnification. Each party shall defend and hold the other party
harmless from and against, and shall indemnify the other party for, any loss,
liability, damage, judgment, penalty or expense (including administrative costs
and expenses, attorney's fees and costs of defense) suffered or incurred by any
person, or to any property, in relation to any action or inaction taken by such
party, whether intentional, negligent or otherwise, or by any of such party's
affiliates, directors, officers, employees, representatives or agents (including
attorneys, accountants and financial advisors).
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9. Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future statutes, orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions defined by this Agreement.
10. Notices. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by facsimile transmission and
shall be deemed to have been duly given (i) on the date of service, if delivered
in person or by facsimile transmission (with the facsimile confirmation of
transmission receipt serving as confirmation of service); or (ii) 48 hours after
mailing by first class, registered or certified mail, postage prepaid, and
properly addressed as follows:
If to the Corporation: Aegis Assessments, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
If to the Consultant: Xxxxxx Xxxxxx
00000 Xxxxxxxxx Xxx
Xxxxxx, XX 00000
or at such other address as the party affected may designate in a written notice
to such other party in compliance with this paragraph.
11. Entire Agreement. This Agreement constitutes the final, complete,
and exclusive agreement between the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral
negotiations, agreements, and understandings. This Agreement may be amended only
by an instrument in writing which expressly refers to this Agreement and
specifically states that such instrument is intended to amend this Agreement and
is signed on behalf of both parties.
12. Execution in Counterparts. This Agreement many be executed in
several counterparts and by facsimile, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
13. Choice of Law and Consent to Jurisdiction. All questions concerning
the validity, interpretation or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties, shall be governed by, and resolved in accordance with, the laws of the
State of California. Any and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be litigated in
courts having situs within the State of California.
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14. Assignability. Neither party shall sell, assign, transfer, convey
or encumber this Agreement or any right or interest in this Agreement or
pursuant to this Agreement, or suffer or permit any such sale, assignment,
transfer or encumbrance to occur by operation of law without the prior written
consent of the other party. In the event of any sale, assignment, transfer or
encumbrance consented to by such other party, the transferee or such
transferee's legal representative shall agree with such other party in writing
to assume personally, perform and be obligated by, the covenants, obligations,
warranties, representations, terms, conditions and provisions specified in this
Agreement.
15. Consent to Agreement. By executing this Agreement, each party, for
himself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
16. Attorney's Fees. In the event of a legal proceeding between the
parties to enforce a provision under this Agreement, the prevailing party to
such action shall be entitled to recover from the other party its reasonable
attorney's fees and costs for participating in the legal action.
17. Severability. To the extent any provision of this Agreement shall
be determined to be unlawful or otherwise unenforceable, in whole or in part,
such determination shall not affect the validity of the remainder of this
Agreement, and this Agreement shall be reformed to the extent necessary to carry
out its provisions to the greatest extent possible. In the absence of such
reformation, such part of such provision shall be considered deleted from this
Agreement and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent of,
or business activities covered by any provision of this Agreement be in excess
of that which is valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. To the extent any provision of this
Agreement shall be declared invalid or unenforceable for any reason by any
Governmental or Regulatory Authority in any jurisdiction, this Agreement (or
provision thereof) shall remain valid and enforceable in each other jurisdiction
where it applies. Both parties acknowledges the uncertainty of the law in this
respect and expressly stipulate that this Agreement shall be given the
construction that renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable law.
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IN WITNESS WHEREOF the parties have executed this Agreement in
duplicate and in multiple counterparts, each of which shall have the force and
effect of an original, on the date specified in the preamble of this Agreement.
CORPORATION: CONSULTANT:
Aegis Assessments, Inc., /s/ Xxxxxx Xxxxxx
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
Its: President
By: /s/ Xxxxxxx Xxxxxxx
Its: Secretary
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