XXX-TYME, INC.
000 XXXXXXXXX XXXXXX
XXXXXXXX, XX 00000
September 25, 1997
Xx. Xxxxxxx Xxxxxxxx
Re: Consulting Agreement
Dear Xx. Xxxxxxxx:
This Agreement is to confirm our understanding with respect to the
rendering by you (the "Consultant") of certain consulting services to Xxx-Tyme,
Inc. ("BTI"), upon the terms and conditions set forth below.
1. Payment by BTI. As full and total consideration for the services
provided by you to BTI hereunder, and in partial consideration of your agreement
to terminate the Employment Agreement between you and BTI dated May 12, 1993 as
well as any and all obligations owed to you by BTI pursuant to the Employment
Agreement, BTI hereby issues to you the option (the"Option") to purchase 450,000
shares of BTI's Series C Preferred Stock for a period of five (5) years at any
time commencing on the date hereof at an exercise price of $.25 per share. In
addition, BTI agrees to register such shares for sale to the public as soon as
practicable. This Agreement may be terminated at any time by providing the other
party hereto with 90 days prior written notice.
2. Term of Agreement. This agreement shall be for a term of one (1) year.
3. Consultant's Obligations. The Consultant agrees to provide BTI with
consulting services in connection with marketing and sales during the term of
this Agreement. The Consultant shall provide such consulting services at such
time and in such manner as the Consultant and BTI may determine.
4. Confidential Information Consultant acknowledges that all information,
documents, customer lists, patents, trademarks, copyrights, materials,
specifications, business strategies or any other ideas which directly relate to
the business of BTI (referred to herein as "Confidential Information") whether
prepared or generated by Consultant, or BTI pursuant to this Agreement or
otherwise in the possession or knowledge of Consultant prior to the date hereof
or coming into possession or knowledge of Consultant during the term of this
Agreement shall be the exclusive, confidential property of BTI, except to the
extent expressly authorized in writing by BTI for dissemination. From the date
of this Agreement through and including the twenty-fourth month following the
termination of this Agreement or any extension thereof (the "Restricted
Period"),
Consultant shall not disclose any of such Confidential Information to any third
party without the prior written consent of BTI and shall take all reasonable
steps and actions necessary to maintain the confidentiality of such Confidential
Information.
5. Status as Independent Contractor. Consultant's engagement pursuant to
this Agreement shall be as independent contractor and not as an employee,
officer or other agent of BTI. Neither party to this Agreement shall represent
or hold itself out to be the employer or employee of the other. Consultant
further acknowledges that the compensation provided herein is a gross amount of
compensation and that BTI will not withhold from such compensation any amounts
respective income taxes, social security payments or any other payroll taxes.
All such income taxes and payments shall be made or provided for by Consultant
and BTI shall have no responsibility or duties regarding such matters.
6. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to binding
arbitration conducted in the State of New York, City of New York, in accordance
with the rules of the American Arbitration Association in New York City. This
Agreement may be executed simultaneously in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. This Agreement
contains the entire understanding of the parties hereto with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties.
If this Agreement accurately reflects your understanding of our agreement,
kindly sign the enclosed copy of this letter on the space provided below and
return it to me at your earliest convenience.
Very truly yours,
XXX-TYME, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------
Xxxxxx Xxxxxx, President
Agreed to and Accepted as of
the Date First Written Above:
/s/ Xxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxx
