CONSULTING AGREEMENT
EXHIBIT
10.30
THIS
CONSULTING AGREEMENT (the
“Agreement”) is made and entered into effective as of March 22, 2006 (the
“Effective Date”), by and between Xxxxxxx Technologies Corporation (“Xxxxxxx”),
a Delaware corporation, and Voyager Consulting LLC, a New York limited liability
company (“Voyager”).
R
E C I T A L S:
A. WHEREAS,
Xxxxxxx
is a company engaged in the manufacture and sale of security locks for trailers;
and
B. WHEREAS,
Voyager
has expertise and significant relationships in the DIY retail market, and in
particular with The Home Depot chain of stores; and
C. WHEREAS,
Xxxxxxx
desires to retain the services of Voyager to help market its products to The
Home Depot, subject to the terms and conditions hereinafter set
forth:
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises and covenants
contained herein, Voyager and Xxxxxxx hereby agree as follows:
1. Agreement
To Render Services.
Xxxxxxx
hereby retains the services of Voyager to assist it in the marketing and sale
of
its security products, and Voyager hereby agrees to render such services to
Xxxxxxx upon the terms and for the consideration set forth in this
Agreement.
2. Term
Of Agreement.
The
term
of this Agreement shall be for a period of five (5) years (the
“Term”).
3. Duties
Of Voyager.
Voyager
hereby agrees that Voyager and/or its assigns shall seek to have Gabriel’s
security products placed for sale to the general public in The Home Depot stores
and shall perform any other acts or services mutually agreed to between the
parties hereto.
4. Fee.
In
consideration of the services to be rendered hereunder by Voyager, Voyager
and
Xxxxxxx agree that if Voyager is successful in having Gabriel’s products placed
for sale within The Home Depot stores, Xxxxxxx will pay a fee (“Fee”) to
Voyager. The Fee shall be equal to five percent of all gross revenues received
by Xxxxxxx, directly or indirectly, from the sale of their product in or through
The Home Depot.
The
Fee
shall be payable quarterly, within five (5)
business
days from the close of each quarter.
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Gabriel’s
obligation to pay the Fee to Voyager shall be ongoing, and will continue so
long
as Gabriel’s products continue to be sold in or through The Home Depot stores.
Gabriel’s obligation to pay the Fee to Voyager shall survive any termination of
this Agreement.
5. Warrants.
In
addition to the Fee described above, in consideration for the services provided
by Voyager under this Agreement Xxxxxxx agrees to provide Voyager with a warrant
(the “Warrant”) to purchase up to 2,000,000 shares of Gabriel’s Class A common
stock (the “Warrant Shares”). The Warrant Shares shall be issued according to
the following schedule:
(a) 666,666
Warrant Shares shall be issued Voyager upon Xxxxxxx receiving an “approved
vendor” status from The Home Depot which allows Xxxxxxx to sell its products and
services in and through The Home Depot;
(b) 666,666
Warrant Shares shall be issued Voyager upon Xxxxxxx receiving at least Five
Million Dollars ($5 million)
in gross cumulative revenues as a result of the sale of Xxxxxxx products in
and
through The Home Depot; and
(c) 666,668
Warrant Shares shall be issued Voyager upon Xxxxxxx receiving at least Twelve
Million Dollars ($12 million) in gross cumulative revenues as a result of the
sale of Xxxxxxx products in and through The Home Depot.
Purchase
of the Warrant Shares shall be on a cashless basis, and shall be consummated
by
Voyager by delivery to Xxxxxxx of written notice of its election to affect
a
cashless exercise of the Warrants. The exercise price for each Warrant Share
shall be $1.00. Voyager shall have the ability to purchase the Warrant Shares
at
any time on or before four (4) years from the date of this Consulting
Agreement.
Upon
the
signing of this Consulting Agreement, Voyager and Xxxxxxx shall promptly enter
into a warrant agreement (the “Warrant Agreement”), to be drafted by Xxxxxxx,
reflecting the above referenced terms.
6. Indemnification.
Xxxxxxx
shall indemnify and hold harmless Voyager and all of the shareholders, members,
officers, directors, employees, attorneys and other agents of Voyager (the
“Voyager Indemnitees”), from, for and against any claims, damages or liability
whatsoever pertaining to Voyager’s fulfillment of its obligations under this
Agreement, and, at its own cost and expense, shall defend any action or
proceeding against the Voyager Indemnitees arising therefrom. Such
indemnification shall include, but not be limited to, all costs associated
with
defending against any suit, attorney fees, and any eventual settlement or
judgment amount as well as interest.
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7. Accuracy
of Information Provided.
Xxxxxxx
represents and warrants that at all times any and all documents, material,
data
or other information furnished or directly or indirectly made available by
Xxxxxxx to Voyager or to The Home Depot, or any of their respective
representatives, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading. If any event shall occur or condition exist as a result of
which
it is necessary or advisable, in the opinion of Xxxxxxx or Voyager, to amend
or
supplement Gabriel’s materials so that they will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not misleading, Xxxxxxx will amend or
supplement such materials to ensure that they do not contain any misstatements
or omissions and are not misleading.
8. Assignability.
Xxxxxxx
shall not assign any of its rights or obligations under this Agreement without
the prior written consent of Voyager.
9. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties and contains
all
of the agreements between the parties with respect to the subject matter hereof.
This Agreement supersedes any and all other agreements, understandings,
negotiations and discussions, either oral or in writing, between the parties
hereto with respect to the subject matter hereof. There are no warranties,
representations or agreements between the parties except as set forth herein.
This Agreement may be amended or revoked at any time by a written instrument
signed by all parties. No waiver or modification of this Agreement shall be
valid unless the same shall be in writing and signed by the party to be
charged.
10. Notices.
Any
notice, election, demand, request, consent, approval, concurrence or other
communication given or made under any provision of this Agreement shall be
deemed to have been sufficiently given or made for all purposes only if it
is in
writing and it is: (i) delivered personally to a party to whom it is directed;
(ii) sent by first class mail or overnight express mail, postage and charges
prepaid, addressed to the party to whom it is directed, at its last known
address; (iii) telecopied to the party to whom it is directed, at its last
known
telecopy address; or (iv) transmitted by electronic mail with receipt of
transmission confirmed.
11. Non-Waiver.
No delay
or failure by either party to exercise any right under this Agreement, and
no
partial exercise of that right, shall constitute a waiver of that or any other
right, unless otherwise expressly provided herein.
12. Partial
Invalidity/Severability.
If any
particular portion of this Agreement shall be adjudicated invalid or
unenforceable, that portion or section shall be deemed amended to delete
therefrom the portion so adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of that section in a
particular jurisdiction in which such adjudication is made, and the remaining
provisions shall nevertheless continue in full force without being impaired
or
invalidated in any way.
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13. Arbitration.
Any
dispute or controversy arising under, out of, in connection with, or in relation
to this Agreement, any amendment thereof, or the breach thereof, shall be
determined and settled by arbitration, in the Los Angeles area in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
Any award rendered therein shall be final and binding on each of the parties,
and judgment may be entered thereon in any court having jurisdiction
thereof.
14. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of California.
15. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original, but all of which together shall constitute one and the same
agreement. Facsimile signatures shall be deemed to have the same force and
effect as original signatures and shall in all respects be valid and
binding.
16. Binding
Effect.
This
Agreement shall be binding upon the parties hereto and their successors,
transferees and assigns, and the parties hereto agree for themselves and their
successors, transferees and assigns to execute any and all instruments which
may
be necessary or proper to carry out the intents and purposes
thereof.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the date first stated
above.
VOYAGER
CONSULTING, LLC
a
New
York limited liability company
/s/
Xxxxxxx X.
Xxxx
By: Xxxx
Xxxx
Its: Managing
Member
XXXXXXX
TECHNOLOGIES CORPORATION
a
Delaware corporation
/s/
Xxxxx X.
Xxxxxxxxx
By:
Xxxxx
X. Xxxxxxxxx
Its: CEO
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