EXHIBIT 10.9
INDEPENDENT CONSULTING AGREEMENT
This Independent Consulting Agreement ("Agreement"), effective as of
April 21, 2005 ("Effective Date") is entered into by and between CATCHER, INC.,
a Delaware corporation (herein referred to as the "Company") and XXX X. XXXXXX,
an individual (herein referred to as the "Consultant").
RECITALS
WHEREAS, the Company is a privately-held corporation; and
WHEREAS, Company desires to engage the services of Consultant;
NOW THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. TERM OF CONSULTANCY. Company hereby agrees to retain the Consultant to
act in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing on the Effective Date and ending
twelve months thereafter on April 21, 2006 unless otherwise mutually agreed to
by the parties. At the six-month anniversary, either party will have the option
to terminate the Agreement immediately upon notice with or without cause. In the
event that Consultant commits any material breach or violation of the provisions
of this Agreement, then, the Company has the right to terminate this Agreement
any time during the Agreement's term and/or any extension periods after the
initial contractual period upon notice. It is also understood that the Company
is entering into this Agreement with Consultant based on its personal
relationship and confidence in the skills of Xxx Xxxxxx. Therefore, if Xx.
Xxxxxx leaves the Consultant or dies or becomes physically unable to perform any
meaningful activities during the term of the Agreement, the Company will have
the right to terminate this Agreement upon notice to the Consultant.
2. DUTIES OF CONSULTANT. The Consultant agrees that it will generally
provide the following specified consulting services through its officers and
employees during the term specified in Section 1, above:
Agency Facilitation
The Consultant, will act on behalf of the Company to facilitate the creation of
a marketing and public relations strategy specific to the first twelve (12)
months of the Company's operation. During said time Consultant will act as
intermediary between Company and agency or agencies responsible for facilitation
of services necessary for the Company's marketing and public relations efforts.
(a) Define a marketing & public relations strategy;
(b.) Identify the resources necessary to facilitate the Company's
ongoing needs and requirements specific to marketing and public relations
strategies including but not limited to:
o Formulate and submit for your approval strategic marketing and
public relations campaigns and recommendations.
1
o After approval by the Company, create and prepare said
campaigns for consumer, trade print, broadcast and other
media.
o Develop a marketing strategy and public relations plan
specific to the Company's needs and support the proposed plan
through the creation of content and delivery of said content
to the marketplace.
o Purchase all materials and services necessary for the
production of finished marketing and public relations
materials, media and content, including but not limited to:
typography, engraving, printing, packaging, photographs,
artwork, comprehensive layouts, paste-ups, mechanicals,
research, film, video tapes, editing, musical compositions and
arrangements, radio and television programs and facilities,
talent, props, scenery, sound and lighting effects, paste-ups,
mechanicals, comprehensive production storyboards and
photo-boards, 3D, typography, retouching, illustration,
graphics, animation, designs (including computer aided
design),digital image research, portable media, and color
output and prints prepared or produced by our personnel.
o Execute all of the above in finished form.
o Forward produced marketing and public relations materials,
media and content to media, strategic partner and clients in
accordance with written instructions from the Company;
o Endeavor to do all of the above on the most advantageous
rates, terms and conditions available.
o Develop and provide the Company with rough concepts for
certain significant collateral materials (such as sales
promotion materials, brochures and public forum information).
(c.) maintain an awareness during the term of the Agreement of the
Company's plans, strategy and personnel, as they may evolve during such period,
and consult and assist the Company in ways to communicate appropriate
information regarding such plans, strategy and personnel to the media;
(d.) provide analysis to test whether marketing and public relations
strategies have a sound foundation with assumptions that are realistic and
achievable;
(e.) work closely with management helping them to define current and
future marketing and public relations strategies for all markets Company seeks
to pursue; and
(f.) present various strategic marketing and public relations options,
and make introductions to potential business alliances and merger & acquisitions
candidates;
3. ALLOCATION OF TIME AND ENERGIES. The Consultant hereby promises to
perform and discharge faithfully the foregoing services and any other
responsibilities which may be assigned to the Consultant from time to time by
the officers and duly authorized representatives of the Company in connection
with its activities, so long as such activities are in compliance with
applicable laws and
Consulting Agreement - Page 2
regulations. Consultant and staff shall diligently and thoroughly provide the
consulting services required hereunder. Although no specific hours-per-day
requirement will be required, Consultant and the Company agree that Consultant
will perform the duties set forth herein above in a diligent and professional
manner.
4. REMUNERATION. For performance under this Agreement on a month-to-month
basis, Company will pay Consultant a cash fee in the amount of $5,000 per month.
This Consultancy Fee shall be issued to the Consultant on a monthly basis, the
first monthly payment due and payable on May 1, 2005 and each following monthly
payment payable in full on the first day of each respective month. The monthly
Consultancy Fee shall continue to be paid monthly for the duration of this
Consulting Agreement. The Company shall not be obligated to Consultant for any
monthly cash fee for any month or part thereof remaining from the date of any
valid cancellation to April 15, 2006.
5. EXPENSES. Consultant agrees to pay for it's expenses relating to this
Agreement, including without limitation, acting as facilitator between Company
and agency or agencies responsible for any marketing, advertising and public
relations content (phone, mailing, labor, etc.), other than extraordinary items
(travel required by/or specifically requested by the Company, luncheons or
dinners with large groups of investment professionals, mass faxing to a sizable
percentage of the Company's constituents, investor conference calls, print
advertisements in publications, etc.) and items/expenses resulting in the
creation of any and all content be it marketing, advertising, public relations
which will be under separate agreement(s) with an agency or agencies, all of
which must be approved by the Company in writing prior to the Company incurring
an obligation for reimbursement.
6. INDEMNIFICATION. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant in
connection with its duties under this Agreement are accurate in all material
respects and Consultant may rely upon the accuracy thereof without independent
investigation. The Company will protect, indemnify and hold harmless Consultant
against any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting from
Consultant's communication or dissemination of any said information, documents
or materials excluding any such claims or litigation resulting from Consultant's
communication or dissemination of information not provided or authorized by the
Company. Consultant will indemnify and hold Company harmless against any claims
or litigation, including any damages, liability, cost and reasonable attorney's
fees as incurred with respect thereto resulting from consultant's communication
or dissemination of any false or inaccurate information, provided said
information was not given to the Consultant by the Company. The indemnifying
party will have the right to control the defense of such matter indemnified and
no matter will be settled, except solely for money, without the indemnified
party's prior written approval and only if the settlement provides an
unconditional release of the indemnified party.
7. REPRESENTATIONS. The following representations shall continue during
the term of this Agreement: Consultant represents that it is not required to
maintain any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant acknowledges
that, to the best of its knowledge, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant and that the relationship with the
Company does not conflict with any other business relationship of the Consultant
or any of Consultant's affiliates. Company acknowledges that, to the
Consulting Agreement - Page 3
best of its knowledge, that it has not violated any rule or provision of any
regulatory agency having jurisdiction over the Company. The Company agrees that
no reference to the Consultant will be made in any press release or
advertisement without the express written approval of Consultant. The provisions
of this paragraph 7 will survive the termination or expiration of this
Agreement.
8. Confidentiality. The Consultant acknowledges that during the term of
this Agreement "Confidential Information" of the Company will be disclosed,
orally and in writing, or revealed to it, which information is not readily
available to the general pubic. Confidential Information includes, without
limitation, business plans, financial information, strategic plans, personnel
information, ideas and concepts. The Consultant acknowledges that the
Confidential Information contains unique, valuable, and confidential proprietary
information which is not available to the general public, as well as trade
secrets, concepts, and ideas. The Consultant will hold the Confidential
Information in the strictest confidence and will not disclose such Confidential
Information to any other persons or entities, other than authorized
representatives of the Company, either orally or in writing, unless it shall
have obtained the prior written consent of the Company. The Consultant also will
make use of Confidential Information only for purposes of performing its
obligations pursuant to this Agreement and will not make use of the Confidential
Information for its own benefit at any time. In the event that the Consultant is
requested in any proceeding to disclose any Confidential Information, the
Consultant will give the Company prompt notice of such request so that the
Company may seek an appropriate protective order. If, in the absence of a
protective order, the Consultant is nonetheless compelled to disclose
Confidential Information, the Consultant may disclose such information without
liability hereunder; provided, however, that the Consultant gives the Company
notice of the Confidential Information to be disclosed as far in advance of its
disclosure as is practicable and uses all commercially reasonable efforts to
obtain assurances that confidential treatment will be accorded to such
Confidential Information. Upon request of the Company, the Consultant agrees
that it will promptly return to the Company all tangible evidence of any
Confidential Information and all copies thereof and memoranda with respect
thereto which are in its possession, and to delete any computer reproducible
form of the Confidential Information. The Company may request return of such
Confidential Information at any time at its sole discretion. The Consultant
acknowledges that violation of any of the provisions of this paragraph will
result in irreparable harm to the Company and that damages would be an
inadequate remedy. Accordingly, the Consultant agrees that, in addition to all
remedies at law, the Company is entitled to equitable relief, including without
limitation injunctive relief (temporary, preliminary or permanent), in any court
of competent jurisdiction to restrain any violation of this paragraph without
any requirement to post bond as a condition of such relief and to such other and
further relief as a court of competent jurisdiction may deem proper under the
circumstances.
9. LEGAL REPRESENTATION. Each of Company and Consultant represents that
they have consulted with independent legal counsel and/or tax, financial and
business advisors, to the extent that they deemed necessary.
10. 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 the Company. Neither party to this Agreement shall
represent or hold itself out to be the employer or employee of the other.
Consultant further acknowledges the consideration provided hereinabove is a
gross amount of consideration and that the Company will not withhold from such
consideration any
Consulting Agreement - Page 4
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company nor the Consultant possesses the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
11. ATTORNEY'S FEE. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs in
connection with that action or proceeding, in addition to any other relief to
which it or they may be entitled.
12. WAIVER. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. NOTICES. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
TO THE COMPANY:
Catcher, Inc.
Xxx Xxxxxxxx, Chairman
0000 Xxx Xxxx Xxxx
Xxx Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxxx@xxx.xxx
TO THE CONSULTANT:
Xxx X. Xxxxxx
XX Xxx 00000
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax - (000) 000-0000
xxxxxxx@xxxxxxxxx.xxx
It is understood that either party may change the address to which notices for
it shall be addressed by providing notice of such change to the other party in
the manner set forth in this paragraph.
14. CHOICE OF LAW. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of California.
15. COMPLETE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior written
and oral agreements, representations, warranties and understandings between the
parties with respect to the subject matter hereof. No
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provision of this Agreement and its terms may not be changed or waived orally
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification, extension or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
AGREED TO:
COMPANY:
CATCHER, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Chairman
CONSULTANT:
XXX X. XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx, Individually
