Exhibit 10.1
CONSULTING AGREEMENT
Between
Xxxxx X Xxxxxxxxx and DataHand Systems, Inc.
Dated December 6, 2000
This agreement is made effective as of December 8, 2000, by and between DataHand
Systems, Inc. (the "Company") at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
and Xxxxx X. Xxxxxxxxx (the "Consultant") at 0000 Xxxx Xxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000.
Contractor has a background in Sales, Marketing, Company Administration and Fund
Raising and is willing to provide services to the Company based on this
background.
The Company desires to have services provided by Contractor.
Therefore, the parties agree as follows:
1. DESCRIPTION OF SERVICES. Beginning on December 6, 2000, Contractor
will provide the following services, (collectively the "Services"):
Assume the position of President of the Company. Create and manage
Sales and Marketing Plans and execute the Plan to create sales of
products and training and implementation services for the Company.
Install and Manage the Company's XxxxxxxxxXxxxx.Xxx web site. Manage
the Company's business as President. Assist in Securing Funding by
January 29th in quantity sufficient to operate the Company and fulfill
its published plans.
2. PERFORMANCE OF SERVICES. The manner in which the Services are to be
performed and the specific hours to be worked by Contractor shall be
determined by agreement between the Contractor and the Company. The
Company will rely on Contractor to work as many hours as may be
reasonably necessary to fulfill Contractor's obligations under this
Agreement.
3. PAYMENT. Contractor will be paid a base pay of $125,000 per year,
payable monthly. First payment will be prorated for December and will
be paid on December 31". In the event that no additional finds are
raised in the month of December or January, Contractor agrees to
accept a note from the Company for payment for these months or accept
payment in the form of common shares of the Company at the rate of $1
per common share. In the event that this becomes necessary, Contractor
will be given, as interest and all other consideration for accepting
the note or stock in lieu of payment, 15,000 shares of the Company's
common shares per month, prorated for December. Contractor will be
also be paid a bonus at the rate of $125,000 per year, payable
quarterly with first payment due on March 6~", 2001. In the event that
funding of at least $600,000 has not been secured by due date of first
payment, Contractor may either accept a note from the
Company for the cash payment or be paid in stock of the Company at the
rate of $1 per common share - choice to be made by Contractor.
Company intends to offer Contractor a full-time position as
President/CEO once the Company is successful in obtaining funding of
at least $600,000 by January 29th. It is agreed that upon the
occurrence of this event Contractor's (then called. "Employee")
compensation will be as follows: Annual Salary of $125,000. Cash
Bonuses at a rate of no less that $125,000 per year, payable
quarterly, to be negotiated each year based upon successful completion
of goals as established by Employee and the Company Chairman of the
Board.
Upon termination of this Agreement, payments under this Paragraph (3)
shall cease; provided, however, that Contractor shall be entitled to
payments for periods or partial periods that occurred prior to the
date of the termination and for which Contractor has not yet been
paid.
4. EQUITY and OPTIONS. Contractor shall be granted 25,000 options at the
signing of this agreement. In addition, Contractor shall be granted an
additional 80,000 options on March 1", assuming that funding of at
least $600,000 has been secured. The exercise price of these options
shall be $1.00. The options shall vest in equal amounts semi-annually
and shall vest immediately if both of the following occur: (a)
Contractor becomes a full-time employee of the Company and a minimum
of $600,000 in financing is obtained by the Company from the date of
this Agreement and before March 1", 2001.
Should Contractor introduce a funding source to the Company that
provides funds, Contractor shall be paid a "finder fee" in the form of
options in the amount of 5% of the funding obtained from this source.
For determining the amount of the options to be issued, the options
shall be valued at the average per share price of the equity issued to
the funding source secured by the Contractor. Vesting of these options
shall be immediate.
This paragraph shall continue to apply if the Contractor becomes an
Employee.
In addition, should the Contractor become an Employee, additional
options shall be granted under the following schedule: year 2 =
90,000; year 3 = 100,000; year 4 = 110,000; year 5 = 120,000. This
schedule, and the addition of the 80,000 options for year 1, allows
the accumulation of 500,000 options over five years. The exercise
price of these added options shall be equal to the average price of
the Company's shares during the 30 days prior to the issuance of the
options. Options shall vest in equal amounts semi-annually and have a
three-year life.
5. EXPENSE REIMBURSEMENT. Contractor shall be entitled to reimbursement
from the Company for all "out-of-pocket" expenses. Expenses shall be
submitted to the Chairman of the Board for review and approval.
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6. OFFICE. Company shall furnish to Contractor an office for use by
Contractor for the performance of the duties associated with the title
of President.
7. TERM/TERMINATION. Either party upon five (5) days written notice to
the other party may terminate this Agreement.
8. RELATIONSHIP OF PARTIES. It is understood by the parties that
Contractor is an independent contractor with respect to the Company,
and not an employee of the Company. The Company will not provide
fringe benefits, including health insurance benefits, paid vacation,
or any other employee benefit, for the benefit of the Contractor.
However; if the Contractor becomes a full-time Employee, benefits
normally associated with the position of President/CEO will be
provided, including, but not limited to, health insurance benefits and
paid vacation.
9. ASSIGNMENT. Contractor's obligations under this Agreement may not be
assigned or transferred to any other person, firm, or corporation
without the prior written consent of the company.
10. INTELLECTUAL PROPERTY. The following provisions shall apply with
respect to works subject to copyright, ideas, discoveries, inventions,
applications for patents, and patents (collectively, "Intellectual
Property"):
a. Contractor's Intellectual Property. Contractor does not
personally hold any interest in any Intellectual Property that
may be of benefit to Company.
b. Development of Intellectual Property. Any improvements to
Intellectual Property items, further inventions or improvements,
and any new items of Intellectual Property discovered or
developed by Contractor (or Contractor's employees, if any)
during the term of this Agreement shall be the property of the
company. Contractor shall sign all documents necessary to perfect
the rights of the Company in such Intellectual Property,
including the filing and/or prosecution of any applications for
copyrights or patents. Upon request, Contractor shall sign all
documents necessary to assign the rights to such Intellectual
Property to the Company.
11. CONFIDENTIALITY. Contractor recognizes that he has and will have the
following information:
- inventions
- products
- products
- costs
- future plans
- business affairs
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- trade secrets
- technical information
- customer lists
- product design information
- copyrights
And other proprietary information (collectively, "Information"), which are
valuable, special and unique assets of the Company. Contractor agrees that he
will not at any time or in any manner, either directly or indirectly, use any
Information for Contractor's own benefit, or divulge, disclose, or communicate
in any manner any Information to any third party without the prior written
consent of the Company. Contractor will protect the Information and treat it as
strictly confidential. A violation of this paragraph shall be a material
violation of this Agreement.
12. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that Contractor
has disclosed (or has threatened to disclose) Information in violation
of this Agreement, the Company shall be entitled to an injunction to
restrain Contractor from disclosing, in whole or in part, such
Information, or from providing any services to any party to whom such
Information has been disclosed or may be disclosed. The Company shall
not be prohibited by this provision from pursuing other remedies,
including a claim for losses and damages.
13. RETURN OF RECORDS. Upon termination of this Agreement, Contractor
shall deliver all records, notes, data, memorandum, models, and
equipment of any nature that are in Contractor's possession or under
Contractor's control and that are the Company's property or relate to
the Company's business.
14. 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:
Company: DataHand Systems, Inc.
Attn: Chairman of the Board
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Contractor: Xxxxx X. Xxxxxxxxx
0000 Xxxx Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Either party may change such address from time to time by providing
written notice to the other in the manner set forth above.
15. 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.
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16. AMENDMENT. This Agreement may be modified or amended if the amendment
is made in writing and is signed by both parties.
17. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions
shall continue to 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.
18. 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.
19. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Arizona.
By: /s/ Xxxxx X. Xxxx Date: 12/11/00
------------------------------- ----------------------------------
Xxxxx X. Xxxx, Chairman/CEO
DataHand Systems, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx Date: 12/11/00
------------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxx, Contractor
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