EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of July
17, 2002 (the "Effective Date"), by and between Accupoll, Inc., a Delaware
corporation and it's affiliate Accupoll Holding Company, a Nevada Corporation
(the "Company"), and Xxxx Xxxxxxx (the "Consultant"), with reference to the
following facts:
RECITALS
WHEREAS, the Company desires to retain the services of the Consultant
and the Consultant desires to perform services as an independent contractor for
the Company.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. SCOPE OF SERVICES. The Consultant agrees to provide services to the Company
relating to sales and marketing, and such other operational and business
development services as the Company may reasonably request. (the "Services").
The Consultant will determine the method, details and means of performing the
Services, and shall use his best efforts to accomplish the Services within the
times required by the Company. The company agrees that the internal title of
consultant shall be Vice President of Sales. The Consultant agrees to provide
what would be considered a full-time schedule to the Company, and shall not
engage in any activity that shall interfere with the terms and conditions of
this Agreement.
2. TERM AND TERMINATION.
2.1 The term of this Agreement shall commence as of the Effective Date
and, unless sooner terminated as provided herein, shall continue on a
month-to-month basis, commencing on July 17, 2002, and expiring on July 16,
2003, unless one party shall have given fifteen (15) days advance written notice
to the other party to terminate the Agreement.
2.2 The Company and the Consultant may mutually agree in writing to
terminate this Agreement at any time.
2.3 This Agreement shall automatically terminate upon the occurrence of
any of the following events:
(a) the bankruptcy of either party;
(b) the liquidation or dissolution of either party.
2.4 Upon any termination of this Agreement, the Consultant shall
promptly deliver to the Company all Confidential Information (defined below) and
property belonging to the Company that is in its possession or under its
control, and the Consultant shall retain no copies or reproductions of such
Confidential Information.
3. COMPENSATION. For all services rendered by the Consultant under this
Agreement, the Company shall compensate to Consultant the following:
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1 Company shall pay the Consultant a bi- weekly consulting fee
in the amount of $3,461.54 at the end of each two-week period.
2 Upon the company reaching gross annual sales of $10,000,000.00
your bi-weekly consulting fee will be increased to $4,615.38.
3 Upon the company reaching gross annual sales of
$20,000,000.00, your bi-weekly consulting fee will be
increased to $5,769.23
4 Consultant shall be granted the option to purchase up to
100,000 shares of the company's common stock at a price of
$1.00 per share. The 100,000 shares shall vest at a rate of
8,333 shares per month. The shares are restricted for one
year, unless the company files a registration statement,
enabling employees of the company to sell their shares prior
to the expiration of one year. Upon such an event, the
Consultant shares shall be registered on a pro-rata basis
consistent with what is being offered as registration to
employees of the Company. The shares shall be considered
net-exercisable. Upon termination of this agreement, all
shares must be exercised, or they will be forfeited back to
the Company.
4. INDEPENDENT CONTRACTOR RELATIONSHIP. The Consultant shall not have any
authority to enter into contracts, make commitments or otherwise bind the
Company to any obligations without the Company's prior written consent. The
Consultant shall be required to hire his own employees and shall have full and
sole responsibility for the payment of all federal, state and local taxes or
contributions that are required pursuant to unemployment insurance, social
security, income taxes, and workers' compensation statutes, and agrees to
indemnify the Company for any liability relating thereto or resulting from the
acts, omissions or negligence of the Consultant or his employees or agents
arising out of or relating to the Services. It is agreed that neither the
Consultant nor his employees shall have a claim against the Company by reason of
the Services performed under this Agreement for any social security, disability,
unemployment, vacation, sick leave, insurance, retirement or any other
employment benefits of any kind.
5. CONFIDENTIALITY AND NON-CIRCUMVENTION.
(a) The Consultant acknowledges and agrees that he has had and will
continue to have access to or be provided with confidential information of the
Company during the term of this Agreement. As used herein, the term
"Confidential Information" shall mean any and all proprietary or confidential
information of the Company, including, without limitation, the Company's
business plan, business presentation or related proprietary and financial
information as well as other confidential or proprietary information of the
Company regarding the Company's business, plans, financial results and
statements, markets, projected activities, customers and results of operations,
requirements and sources, contracts, means, methods and processes of providing
services, copyrights, patents, trademarks, trade secrets, and financial
information.
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(b) The Consultant agrees to keep the Confidential Information in the
strictest confidence, and the Consultant agrees that it will not, directly or
indirectly, publish or disclose, or authorize the publication or disclosure of,
or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than employees of the Consultant, but only to the
extent necessary for the Consultant to perform the Services and subject in each
such case to the Consultant's using its best efforts to ensure that the persons
to whom Confidential Information is disclosed keep such information confidential
and do not use such Confidential Information except for the purposes for which
the disclosure is made. The Consultant agrees to comply with the Company's
policies and regulations, as may be reasonably established from time to time,
for the protection of its Confidential Information.
(c) The Consultant's confidentiality obligations shall continue with
respect to each item of Confidential Information, including after the
termination of this Agreement, until such time as the Consultant can show that
any such item of Confidential Information (i) has legally and properly entered
the public domain through a source other than the Consultant and through no
fault of the Consultant, (ii) has legally and properly been received from an
unrelated third party through no breach of any agreement with the Company and
without an obligation to keep it confidential, or (iii) was known to the
Consultant or was in the Consultant's possession, without any obligation to keep
it confidential, prior to the receipt of such item of Confidential Information
from the Company.
(d) The Consultant acknowledges that the Confidential Information is of
a special, unique and extraordinary character and for that reason the Company
will be irreparably damaged in the event that the confidentiality or
non-circumvention obligations imposed upon Consultant, as set forth herein, are
not specifically enforced. Accordingly, the Consultant agrees that the Company
shall be entitled, at its election, to institute and prosecute proceedings
against the Consultant, as set forth herein, in any court of competent
jurisdiction, either at law or equity, to: (a) obtain damages for breach of the
obligations hereunder; (b) enforce specific performance of said obligations, or
both. Such remedies are cumulative and not exclusive and shall be in addition to
any and all other remedies which the Company may have, at law or in equity, in
the event the Consultant breaches any of its obligations hereunder. The parties
hereto confirm that the covenants in this Agreement are expressly deemed to
cover acts of negligence and any inadvertent disclosure or violation of the
terms herein.
6. INDEMNIFICATION. The Consultant hereby agrees to indemnify, defend and hold
harmless the Company, and each of its directors, officers, shareholders,
employees, agents and representatives, from and against any and all claims,
losses, and damages arising out of or relating to the Services.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. Except as otherwise provided herein, this
Agreement constitutes the entire agreement between the parties, and all prior
negotiations, representations, or agreements between the parties, whether oral
or written, are merged into this Agreement. This Agreement may only be modified
by an agreement in writing executed by the parties hereto.
7.2 BINDING EFFECT, ASSIGNMENT. Neither this Agreement nor any of its
provisions are assignable by either of the contracting parties. This Agreement
shall inure to the benefit of and be binding upon their respective successors in
interest and personal representatives and shall extend to their controlled
corporations, partnerships, trusts, proprietorships, affiliates, agents,
trustees or executives.
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7.3 NOTICES. All notices, requests, demands, and other communications
provided for hereunder shall be in writing or by facsimile transmission and
shall be deemed to have been duly given:
(i) On the date of service if delivered in person o by facsimile
transmission (with the facsimile confirmation of transmission
receipt acting as confirmation of service when sent); or
(ii) Three (3) days after mailing by first class, registered or
certified mail, postage prepaid, and properly addressed as
follows:
If to the Company: Accupoll Inc.
0000 Xxx Xxxxxx Xxx. 000
Xxxxxx, Xx
Attn.: Xxxxxx Xxxxxx, CEO
If to the Consultant: Xxxx Xxxxxxx
__________________________
__________________________
or at such other address as the party affected may designate in a written notice
in compliance with this Section.
7.4 ARBITRATION. All disputes arising out of or in connection with this
Agreement shall be finally settled under the Rules of the American Arbitration
Association ("AAA") by one or more arbitrators appointed in accordance with said
Rules. The place of arbitration shall be Orange County, California. The parties
hereby renounce any right of recourse that they may have before a court of any
jurisdiction except to obtain preliminary or injunctive relief or to enforce an
award of the arbitrator. If any award rendered by an arbitrator in accordance
with this arbitration clause would not be capable of being executed in the
jurisdiction of a party against whom a claim for payment is made or where that
party resides or carries on business, neither the award nor the said arbitration
clause shall bar a party hereto from taking action before the courts that have
jurisdiction over such other party.
7.5 ATTORNEYS' FEES. In the event that any party shall bring an action
or arbitration in connection with the performance, breach or interpretation of
this Agreement, then the prevailing party in such action, as determined by the
court or other body having jurisdiction, shall be entitled to recover from the
losing party in such action, as determined by the court or other body having
jurisdiction, all reasonable costs and expenses of litigation or arbitration,
including reasonable attorneys' fees, court costs, costs of investigation and
other costs reasonably related to such proceeding, in such amounts as may be
determined in the discretion of the court or other body having jurisdiction.
7.6 SECTION HEADINGS. The various section headings are inserted for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
7.7 SEVERABILITY. In the event that any provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
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7.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement, each of
which shall be an original for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
"Company"
Accupoll, Inc.,
a Delaware corporation
By: Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Its:
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"Consultant"
Xxxx Xxxxxxx
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