Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
Exhibit 10.3
View Systems, Inc. Engagement Agreement with Xxxxx Xxxxxxx
Consulting
Agreement
[LOGO]
This
Agreement is made effective as of July , 1999, by and between View Systems, Inc., of 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxxxx 00000, and
Xxxxxxx & Associates, West 303 North 0000, Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
In
this Agreement, the party who is contracting to receive services shall be referred to as "View" or "Company", and the party who will be providing the services shall be referred to
as "Xxxxxxx".
Xxxxxxx
has a background in marketing, business development and management for security and surveillance products and is willing to provide services to View based on this background.
View
desires to have services provided by Xxxxxxx.
Therefore,
the parties agree as follows:
1.
DESCRIPTION OF SERVICES. Beginning June 1, 1999, Xxxxxxx is hereby engaged as a consultant to the Company to provide the
following services (collectively, the "Services"): Sales, Marketing, Management Consulting and Business Development Services.
2.
PERFORMANCE OF SERVICES. All costs and expenses incurred by Xxxxxxx in the operation of Xxxxxxx'x business, including office
rentals, stenographic or clerical services, telephone, advertising, mailing, travel expenses and other operating expenses, shall be paid by Xxxxxxx, and Xxxxxxx shall not be entitled to reimbursement
therefor from the Company. The Company shall reimburse Xxxxxxx for all of its expenses directly related to work for the Company.
3.
PAYMENT.
(a)
Monthly Cash Payments. View will pay Xxxxxxx for its Services the monthly amount of $4,000 per month. This fee shall be payable
monthly, on the first day of the month for which the services are to be provided, and shall be subject to periodic review and adjustment by the Company. Upon termination of this Agreement, payments
under this paragraph shall cease; provided, however, that Xxxxxxx shall be entitled to payments for periods or partial periods that occurred prior to the date of termination and for which Xxxxxxx has
not yet been paid and also for other payment provided under this Agreement. View shall not deduct or withhold from these payments, and Xxxxxxx shall be paid as a consultant and not as an employee.
(b)
Incentive Bonus. The Board of Directors of the Company will determine each year whether to pay Xxxxxxx an annual incentive bonus
based upon Company's performance and the results achieved by Xxxxxxx in its job performance.
(e)
Options. Pursuant to the Stock Option Plan that is adopted by Company, Xxxxxxx shall be granted non-qualified options
to purchase shares of Company Common Stock, such Options to accrue and to be granted in the event that Xxxxxxx is employed and according to a determined schedule. This schedule shall be monthly grants
of options to purchase 4,000 shares of Company's common stock, or monthly grants of options to purchase an amount equal to one share for every dollar of monthly cash compensation Xxxxxxx earns, during
the first 12 months of service, with such service deemed to have begun on July 1, 1999. The options issued under the Company's Stock Option Plan during the first 12 months of
service (beginning July 1, 1999) shall have a strike or exercise price of $.01 per share.
(f)
Shares Under Restricted Share Plan. Upon execution of this Agreement, Xxxxxxx shall be entitled to receive 140,000 shares of stock
in the View Systems, Inc. 1999 Restricted Share Plan, with any contractual restrictions in such shares lapsing on August 1, 1999.
4. COMMISSION PAYMENTS FOR SALES OF PRODUCT.
(a)
For purposes of this Agreement:
(i)
"New Business" shall mean actual sales of Product for which a purchase order is submitted by Xxxxxxx for sale to a customer, provided that (A) the Product being ordered is
not the subject of a previous purchase order or contract for such customer, and (B) the ordering customer has not ordered or received any Product as a direct result of efforts of other
representatives of Company.
(ii)
"Invoiced Price" shall mean the net invoiced price for the Products delivered to the customer, as reflected in the Company's invoice rendered to the customer, after deduction of
all trade discounts, freight and transportation charges or transportation allowances, all sales and other taxes, C.O.D. charges, insurance and similar costs and charges.
(b)
Subject to subsection (c) hereof, Xxxxxxx shall be entitled to receive commissions based on the Invoiced Price of deliveries by the Company during the term of this
Agreement of Products constituting New Business which are sold to customers pursuant to purchase orders submitted by Xxxxxxx and for which the Company actually receives payment. The amount of the
commissions shall be subject to the agreement of the parties at the time the opportunity is identified, which agreed commission amount shall be specified in writing.
(c)
The Company shall have the right to deduct from or charge back against Xxxxxxx'x commission account the amount of any commissions credited or paid to Xxxxxxx in respect of
Products which have been returned by a customer, any allowance credited to a customer for any reason and all allowable deductions made by a customer when remitting payment, such as for adjustments,
discounts and credits. The Company shall have the right to charge back against Xxxxxxx'x commission account a pro rata amount of any commissions already credited or paid to Xxxxxxx when final
settlement is made or completed with a customer on other than a full payment basis. Any such settlement shall be made at the sole discretion of the Company. The Company shall have the right to deduct
from or charge back against Xxxxxxx'x commission account a pro rata amount of any commissions previously paid or credited to Xxxxxxx on shipments for which the Company shall not have been fully paid
by the customer in accordance with the payment terms applicable to the order, regardless of the reason for such non-payment. If any such sums are realized at a later date upon said
accounts, the Company will pay
Xxxxxxx its percentage of commission applicable to the original sale on the net proceeds of such subsequent collection. The Company shall have the right to deduct from or charge back against Xxxxxxx'x
commission account the amount of all draws against commission previously received from Xxxxxxx.
(d)
Commissions shall be payable within 20 days after the end of each month in which the Company receives payment of any invoice in respect of which Xxxxxxx is entitled to a
commission pursuant to this section. Xxxxxxx shall not be entitled to any advance payments.
(e)
The Company will furnish, at Xxxxxxx'x request, but not more frequently than once a month,, a statement showing the Invoiced Price of shipments to Lesniaks customers, resellers,
and OEMs during the preceding calendar month, the computation of credits and deductions to Xxxxxxx'x account and the net balance due.
5.
COMMISSION FOR MERGER/SALE. Where the sale of the Company's assets, or a merger of the Company, is procured by Xxxxxxx, subject to
approval of the Company's board of directors, Xxxxxxx shall be entitled to receive a commission for the sale of substantially all of the Company's assets or merger of View into a third party equal to
an amount agreed to by the parties at the time the opportunity is identified. This agreed commission shall be put in writing.
6.
SUPPORT SERVICES. View will not provide support services, including office space and secretarial services, for the benefit of
Xxxxxxx.
7.
TERM/TERMINATION.
(A) The Initial Term of this Agreement shall commence on the effective date noted above and it shall continue in effect unless terminated by either party upon
sixty (60) days written notice.
(B)
This Agreement and Xxxxxxx'x employment may be terminated by Company at its discretion at any time, provided that if the termination is without cause, for a period of one year
following such termination, Xxxxxxx shall be paid his monthly cash payments (and stock options) and a bonus for year equivalent in value to the bonus received in the year prior to his termination.
(C)
This Agreement may be terminated by Xxxxxxx at Xxxxxxx'x discretion by providing at least sixty (60) days prior written notice to the Company. In the event of termination
by Xxxxxxx pursuant to this subsection, Company may immediately relieve Xxxxxxx of all duties and immediately terminate this Agreement, provided that View shall pay Xxxxxxx the compensation Xxxxxxx
has earned hereunder to the termination date included in Xxxxxxx'x original termination notice.
(D)
In the event Company is acquired, or is the non-surviving party in a merger, or sells all or substantially all of its assets, this Agreement shall not be deemed
terminated as a result thereof..
8.
RELATIONSHIP OF PARTIES. It is understood by the parties that Xxxxxxx is an independent contractor with respect to View, and not an
employee of View. View will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of Xxxxxxx. View will not withhold any
employee taxes from payments to Xxxxxxx.
9.
DISCLOSURE. Xxxxxxx is required to disclose any outside activities or interests, including ownership or participation in the
development of prior inventions, that conflict or may conflict with the best
interests of View. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or indirectly, to:
—a
product or product line of View
—a manufacturing process of View
—a customer of View
—a stratgic business partner, including reseller, OEM, sales rep or licensor/ee of View
10. EMPLOYEES. XXXXXXX'x employees, if any, who perform services for View under this Agreement shall also be bound by the provisions of
this Agreement.
11.
ASSIGNMENT. XXXXXXX'x obligations under this Agreement may not be assigned or transferred to any other person, firm, or corporation
without the prior written consent of View.
12.
CONFIDENTIALITY.
(a)
Xxxxxxx and the Company recognize that due to the nature of Xxxxxxx'x engagement with the Company and his relationship to the Company's business, Xxxxxxx will have access to and
will acquire, and may assist in developing, confidential and proprietary information relating to the business and operations of the Company and its affiliates, including, without limiting the
generality of the foregoing, information with respect to pricing, present and prospective products and customers, and sales and marketing information and data. Xxxxxxx acknowledges that such
information has been and will continue to be of critical importance to the business of the Company and its affiliates and that disclosure of it to or its use by others could cause substantial loss to
the Company.
(b)
Xxxxxxx agrees that during or after the term of this Agreement, it will not, in any manner, either directly or indirectly, use, disclose to others, or permit the use by or
disclosure to any person, firm or entity, or use in any manner except as specifically authorized under this Agreement, any trade secrets or other
confidential or proprietary information learned by it or any of its employees, agents and affiliates during the course of the activities contemplated hereunder concerning any matters affecting or
relating to the business of the Company, including without limitation the generality of the foregoing, information, whether written or otherwise, regarding customers, prospective customers, customer
lists, costs, prices, earnings, products, new or proposed products, formulae, compositions, machines, apparatus, systems, manufacturing procedures, technical data, reports, forecasts, bidding
information, prospective and executed contracts and other business arrangements, and sources of supply. All such confidential material and data shall remain the property of the Company; Xxxxxxx shall
return all such materials and data, and all copies thereof and excerpts therefrom, to the Company promptly on demand, and in any event upon termination of this Agreement, and will retain no copies
thereof or excerpts therefrom.
(c)
The provisions of this paragraph shall survive termination of this Agreement and shall continue until such trade secrets and confidential information become public knowledge
through no fault of such party or any of its employees, agents or dealers.
13.
NON-SOLICITATION. Xxxxxxx agrees that during the term of this Agreement and for a period of one year from and after the
date of termination of this Agreement, he will not, directly or indirectly, for his own account and benefit or for or on behalf of any other person or entity (except for the Company), or as owner,
partner, director, officer, employee, agent, consultant or otherwise: encourage
any customer or any vendor or supplier of the Company to cease doing business with the Company in whole or in part.
14.
REMEDIES. The parties hereto acknowledge that the provisions of this Agreement are of particular importance for the protection and
promotion of their existing and future interest; that the relationships of the parties to each other will be such that, in the event of any breach of this Agreement, a claim for monetary damages may
not constitute an adequate remedy; and that it may therefore be necessary for the protection of the parties and to carry out the terms of this Agreement to apply for the specific performance of the
provisions hereof or to enjoin the violation of this Agreement. It is accordingly hereby agreed by all parties that no objection to the form of the action or the relief prayed for in any proceeding
for specific performance of or injunction under this Agreement shall be raised by any party, in order that such relief may be expeditiously obtained by an aggrieved party.
16.
RETURN OF RECORDS. Upon termination of this Agreement, XXXXXXX shall deliver all records, notes, data, memoranda, models, and
equipment of any nature that are in XXXXXXX'x possession or under XXXXXXX'x control and that are View's property or relate to View's business.
17. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in
person or deposited in the United States mail, postage prepaid, addressed as follows:
IF
for View:
View
Systems, Inc.
Xxxxxxx Than
President
0000 Xxxxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxx 00000
IF
for XXXXXXX:
Xxxxxxx &
Associates
X/x Xxxxx Xxxxxxx
Xxxx 000 Xxxxx 0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any
other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
19.
AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
20.
SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining
provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and
enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
21.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a
waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
In Witness Whereof, the parties, intending to be bound, execute this document under seal.
Party
receiving services:
View Systems, Inc.
| By:
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| (SEAL)
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| Xxxxxxx Than
President
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Party providing services:
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| Xxxxxxx & Associates
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By:
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(SEAL)
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| Xxxxx Xxxxxxx
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Exhibit 10.3
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