EXHIBIT 2.2
CONSULTING AGREEMENT
DATED AS OF JULY 1, 2002
BY AND AMONG
SOFTWALL EQUIPMENT CORPORATION
AND
XXXXXXX XXXXXXXX
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of July 1, 2002 (the "Effective
Date"), by and between Softwall Equipment, Inc., a Utah corporation (the
"Company"), and Xxxxxxx Xxxxxxxx ("Consultant"), with reference to the following
facts:
WHEREAS, Company wishes to retain the services of Consultant, and
Consultant wishes to be so retained by the Company on the terms hereof;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Consultant hereby agree as follows:
1. SCOPE OF SERVICES. Consultant agrees to perform business development services
and provide the Company with financial and operational advice (the "Services").
Consultant will determine the method, details and means of performing the
Services, and shall use its best efforts to accomplish the Services within the
times and in accordance with any applicable standards of performance required by
the Company.
2. TERM AND TERMINATION.
2.1 The term of this Agreement shall commence as of the Effective Date
and continue for one (1) year (the "Term"), unless sooner terminated as set
forth herein.
2.2 The Company and Consultant may mutually agree in writing to
terminate this Agreement at any time.
2.3 Either party may terminate this Agreement immediately if the other
party has breached a material term of this Agreement and, after written notice
and a reasonable opportunity not to exceed thirty (30) days, the other party
fails to cure such breach.
2.4 Upon expiration or any termination of this Agreement, the
Consultant shall promptly deliver to the Company all Confidential Information
(defined below) and property belonging to the Company that is in its possession
or under its control, and the Consultant shall retain no copies or reproductions
of such Confidential Information.
3. COMPENSATION. For the Services rendered by Consultant under this Agreement,
the Company shall (1) execute in favor of, and deliver to, the Consultant, a
Promissory Note in the amount of $125,000.00, substantially the form attached
hereto as Exhibit 1; and (2) issue Consultant 183,411 shares of the Company's
common stock.
4. INDEPENDENT CONTRACTOR RELATIONSHIP. This Agreement shall in no way be
construed to render the Consultant a partner, joint venturer, agent, or employee
of the Company, and the Consultant shall not act or attempt to act or represent
itself, directly or by implication, as a partner, joint venturer, agent or
employee of the Company. Neither the Consultant nor any of its employees shall
have any authority to enter into contracts, make commitments or otherwise bind
the Company to any obligations without the Company's prior written consent. The
Consultant shall be required to hire its own employees and shall have full and
sole responsibility for the payment of all federal, state and local taxes or
contributions that are required pursuant to unemployment insurance, social
security, income taxes, and workers' compensation statutes, and agrees to
indemnify the Company for any liability relating thereto or resulting from the
acts, omissions or negligence of the Consultant or its employees or agents
arising out of or relating to the Services. It is agreed that neither Consultant
nor its employees shall have a claim against the Company by reason of the
Services performed under this Agreement for any social security, disability,
unemployment, vacation, sick leave, insurance, retirement or any other
employment benefits of any kind.
5. CONFIDENTIALITY AND NON-CIRCUMVENTION.
(a) The Consultant acknowledges and agrees that it will have access to
or be provided with confidential information of the Company. As used herein, the
term "Confidential Information" shall mean any and all proprietary or
confidential information of the Company, including, without limitation the
Company's business plan, business presentation or related proprietary and
financial information as well as other confidential or proprietary information
of the Company regarding the Company's business, plans, financial results and
statements, markets, projected activities, customers and results of operations,
requirements and sources, contracts, means, methods and processes of providing
services, copyrights, patents, trademarks, trade secrets, and financial
information.
(b) Consultant agrees to keep the Confidential Information in the
strictest confidence, and Consultant agrees that it will not, directly or
indirectly, publish or disclose, or authorize the publication or disclosure of,
or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than employees of the Consultant, but only to the
extent necessary for the Consultant to perform the Services and subject in each
such case to the Consultant's using its best efforts to ensure that the persons
to whom Confidential Information is disclosed keep such information confidential
and do not use such Confidential Information except for the purposes for which
the disclosure is made. Consultant agrees to comply with the Company's policies
and regulations, as may be reasonably established from time to time, for the
protection of its Confidential Information.
(c) Consultant's confidentiality obligations shall continue with
respect to each item of Confidential Information, including after the
termination of this Agreement, until such time as Consultant can show that any
such item of Confidential Information (i) has legally and properly entered the
public domain through a source other than the Consultant and through no fault of
the Consultant, (ii) has legally and properly been received from an unrelated
third party through no breach of any agreement with the Company and without an
obligation to keep it confidential, or (iii) was known to the Consultant or was
in the Consultant's possession, without any obligation to keep it confidential,
prior to the receipt of such item of Confidential Information from the Company.
(d) The Consultant acknowledges that the Confidential Information is of
a special, unique and extraordinary character and for that reason the Company
will be irreparably damaged in the event that the confidentiality or
non-circumvention obligations imposed upon the Consultant, as set forth herein,
are not specifically enforced. Accordingly, the Consultant agrees that the
Company shall be entitled, at its election, to institute and prosecute
proceedings against the Consultant, as set forth herein, in any court of
competent jurisdiction, either at law or equity, to: (a) obtain damages for
breach of the obligations hereunder; (b) enforce specific performance of said
obligations; or (c) both. Such remedies are cumulative and not exclusive and
shall be in addition to any and all other remedies which the Company may have,
at law or in equity, in the event the Consultant breaches any of its obligations
hereunder. The parties hereto confirm that the covenants in this Agreement are
expressly deemed to cover acts of negligence and any inadvertent disclosure or
violation of the terms herein.
6. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. Except as otherwise provided herein, this
Agreement constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be modified
by an agreement in writing executed by the parties hereto.
(b) BINDING EFFECT, ASSIGNMENT. Neither this Agreement nor any of its
provisions are assignable by either of the contracting parties. This Agreement
shall insure to the benefit of and be binding upon their respective successors
in interest and personal representatives and shall extend to their controlled
corporations, partnerships, trusts, proprietorships, affiliates, agents,
trustees or executives.
(c) NOTICES. All notices, requests, demands, and other communications
provided for hereunder shall be in writing (or by telex or facsimile
transmission) and shall be deemed to have been duly given:
(i) On the date of service if delivered in person or by telex
or facsimile transmission (with the telex or facsimile confirmation of
transmission receipt acting as confirmation of service when sent and provided
that telexed or telecopies notices are also mailed by first class, certified or
registered mail, postage prepaid); or
(ii) In seventy-two (72) hours after mailing by first class,
registered or certified mail, postage prepaid, and properly addressed to the
address for the receiving party set forth below or at such other address as the
party affected may designate in a written notice in compliance with this
Section.
(d) ARBITRATION. Except for matters covered by Section 9 above, all
disputes arising out of or in connection with this Agreement shall be finally
settled under the Rules of American Arbitration Association ("AAA") by one or
more arbitrators appointed in accordance with said Rules. The place of
arbitration shall be Orange County, California. The parties hereby renounce any
right of recourse which they may have before the court of any jurisdiction
except to obtain preliminary or injunctive relief or enforce an award of the
arbitrator.
If any award rendered by AAA in accordance with this
arbitration clause would not be capable of being executed in the jurisdiction of
a party against whom a claim for payment is made or where that party resides or
carries on business, neither the award nor the said arbitration clause shall bar
a party hereto from taking action before the courts that have jurisdiction over
such other party.
(e) ATTORNEY FEES. In the event that any party shall bring an action or
arbitration in connection with the performance, breach or interpretation hereof,
then the prevailing party in such action, as determined by the court or other
body having jurisdiction, shall be entitled to recover from the losing party in
such action, as determined by the court or other body having jurisdiction, all
reasonable costs and expenses of litigation or arbitration, including reasonable
attorneys fees, court costs, costs of investigation and other costs reasonably
related to such proceeding, in such amounts as may be determined in the
discretion of the court or other body having jurisdiction.
(f) SECTION HEADINGS. The various section headings are inserted for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
(g) SEVERABILITY. In the event that any provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement, each of
which shall be an original for all purposes.
(Signature Page Follows)
(Signature Page to Consulting Agreement)
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement
to be effective as of the date first above written.
SOFTWALL EQUIPMENT CORP.
By: By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title:
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Address: Address:
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Facsimile: Facsimile:
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