CONSULTING AGREEMENT
Exhibit 10.10
This Consulting Agreement (“Agreement”)
is made as of July __, 2008 by and between Xxxxx Xxxxxxx, whose address is
______________________________ (the “Consultant”), and Cellynx, Inc., whose
address is 5047 Xxxxxx X Xxxxxxx Xxxxxxx, Xxxxx 000, Xx Xxxxxx Xxxxx, Xxxxxxxxxx
00000 (the “Company”), in reference to the following:
RECITALS
A. The
Company wishes to retain the Consultant, and the Consultant has agreed to be
retained by the Company, to serve as the Company’s interim Chief Financial
Officer a period of 90 days or until the Company retains a permanent Chief
Financial Officer.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Consultant agree as follows:
AGREEMENT
1. Term. The
Company retains the Consultant and the Consultant accepts this appointment with
the Company for a period beginning on the date of this Agreement and ending on
the earlier of (i) the date that the Company retains a permanent Chief Financial
Officer, (ii) the 90th day after the closing of the share exchange transaction
between Norpac Technologies, Inc., a Nevada corporation (“Pubco”) and the
shareholders of the Company pursuant to which the Company shall be a
wholly-owned subsidiary of Pubco, or (iii) the date which the Company notifies
Consultant that he has been terminated in writing, and which notification may
occur at any time for any reason (the “Term”).
2.
Duties of
Consultant. The Consultant agrees as
an interim Chief Financial Officer of the Company. These services
include preparation of financial statements and other financial data;
preparation of quarterly and annual reports with the Securities and Exchange
Commission; and other services customarily performed by a Chief Financial
Officer of a public-reporting company.
3. Compensation. As
an inducement to enter into this Agreement and perform the services, the Company
shall grant to the Consultant 100,000 shares of the Company’s common stock upon
execution of this Agreement and $5,000 in cash. The cash portion
shall be paid within 30 days of this Agreement.
4. Nondisclosure.
4.1 Access to Confidential
Information. The Consultant agrees that during the term of the
business relationship between the Consultant and the Company, the Consultant
will have access to and become acquainted with confidential proprietary
information (“Confidential Information”) which is owned by the Company and is
regularly used in the operation of the Company’s business. The
Consultant agrees that the term “Confidential Information” as used in this
Agreement is to be broadly interpreted and includes (i) information that has, or
could have, commercial value for the business in which the Company is engaged,
or in which the Company may engage at a later time, and (ii) information that,
if disclosed without authorization, could be detrimental to the economic
interests of the Company. The Consultant agrees that the term
“Confidential Information” includes, without limitation, any patent, patent
application, copyright, trademark, trade name, service xxxx, service name,
“know-how,” negative “know-how,” trade secrets, customer and supplier
identities, characteristics and terms of agreements, details of customer or
consultant contracts, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition plans,
science or technical information, ideas, discoveries, designs, computer programs
(including source codes), financial forecasts, unpublished financial
information, budgets, processes, procedures, formulae, improvements or other
proprietary or intellectual property of the Company, whether or not in written
or tangible form, and whether or not registered, and including all memoranda,
notes, summaries, plans, reports, records, documents and other evidence
thereof. The Consultant acknowledges that all Confidential
Information, whether prepared by the Consultant or otherwise acquired by the
Consultant in any other way, shall remain the exclusive property of the
Company.
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4.2 No Unfair Use by
Consultant. The Consultant promises and agrees that the
Consultant (which shall include his Consultants and contractors) shall not
misuse, misappropriate, or disclose in any way to any person or entity any of
the Company’s Confidential Information, either directly or indirectly, nor will
the Consultant use the Confidential Information in any way or at any time except
as required in the course of the Consultant’s business relationship with the
Company. The Consultant agrees that the sale or unauthorized use or
disclosure of any of the Company’s Confidential Information constitutes unfair
competition. The Consultant promises and agrees not to engage in any
unfair competition with the Company and will take measures that are appropriate
to prevent his Consultants or contractors (if any) from engaging in unfair
competition with the Company.
4.3 Further Acts. The
Consultant agrees that, at any time during the term of this Agreement or any
extension thereof, upon the request of the Company and without further
compensation, but at no expense to the Consultant, the Consultant shall perform
any lawful acts, including the execution of papers and oaths and the giving of
testimony, that in the opinion of the Company, its successors or assigns, may be
necessary or desirable in order to obtain, sustain, reissue and renew, and in
order to enforce, perfect, record and maintain, patent applications and United
States and foreign patents on the Company’s inventions, and copyright
registrations on the Company’s inventions.
4.4 Obligations Survive
Agreement. The Consultant’s obligations under this section 4
shall survive the expiration or termination of this Agreement.
5. Termination.
5.1 Termination on
Default. Should either party default in the performance of
this Agreement or materially breach any of its provisions, the non-breaching
party may terminate this Agreement by giving written notification to the
breaching party. Termination shall be effective immediately on
receipt of said notice. For purposes of this section, material
breaches of this Agreement shall include, but not be limited to, (i) the failure
by the Company to pay the compensation set forth in section 3 above; (ii) the
willful breach or habitual neglect by the Consultant of the duties which he is
required to perform under the terms of this Agreement; (iii) the Consultant’s
commission of acts of dishonesty, fraud, or misrepresentation; (iv) the failure
by the Consultant to conform to all laws and regulations governing the
Consultant’s duties under this Agreement; or (v) the commission by the
Consultant of any act that tends to bring the Company into public scandal or
which will reflect unfavorably on the reputation of the Company.
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5.2 Automatic
Termination. This Agreement terminates automatically on the
occurrence of any of the following events: (i) the bankruptcy or
insolvency of either party; or (ii) the death or disability of the
Consultant.
5.3 Return of Company
Property. Upon the termination or expiration of this
Agreement, the Consultant shall immediately transfer to the Company all files
(including, but not limited to, electronic files), records, documents, drawings,
specifications, equipment and similar items in his possession relating to the
business of the Company or its Confidential Information (including the work
product of the Consultant created pursuant to this Agreement, if
any).
6. Status of
Consultant. The Consultant understands and agrees that he is
not an Consultant of the Company and that he shall not be entitled to receive
Consultant benefits from the Company, including, but not limited to, sick leave,
vacation, retirement, death benefits, or an automobile. The
Consultant shall be responsible for providing, at the Consultant’s expense and
in the Consultant’s name, disability, worker’s compensation or other insurance
as well as licenses and permits usual or necessary for conducting the services
hereunder. Furthermore, the Consultant shall pay, when and as due,
any and all taxes incurred as a result of the Consultant’s compensation
hereunder, including estimated taxes, and shall provide the Company with proof
of said payments, upon demand. The Consultant hereby agrees to
indemnify the Company for any claims, losses, costs, fees, liabilities, damages
or injuries suffered by the Company arising out of the Consultant’s breach of
this section.
7. Representations
by Consultant. The Consultant
represents that the Consultant has the qualifications and ability to perform the
services in a professional manner.
8. Notices. Unless
otherwise specifically provided in this Agreement, all notices or other
communications (collectively and severally called “Notices”) required or
permitted to be given under this Agreement, shall be in writing, and shall be
given by: (A) personal delivery (which form of Notice shall be deemed to have
been given upon delivery), (B) by telegraph or by private airborne/overnight
delivery service (which forms of Notice shall be deemed to have been given upon
confirmed delivery by the delivery agency), or (C) by electronic or facsimile or
telephonic transmission, provided the receiving party has a compatible device or
confirms receipt thereof (which forms of Notice shall be deemed delivered upon
confirmed transmission or confirmation of receipt). Notices shall be
addressed to the address set forth in the introductory section of this
Agreement, or to such other address as the receiving party shall have specified
most recently by like Notice, with a copy to the other party.
9. Choice of
Law and Venue. This Agreement shall be governed according to
the laws of the state of California. Venue for any legal or equitable
action between the Company and the Consultant that relates to this Agreement
shall be in the county of Orange.
10. Entire
Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services to be rendered by the Consultant to the Company and contains all
of the covenants and agreements between the parties with respect to the services
to be rendered by the Consultant to the Company in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding on either
party.
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11. Counterparts. This
Agreement may be executed manually or by facsimile signature in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute but one and the same instrument.
12. Arbitration. Any controversy, dispute or
claim of whatever nature arising out of, in connection with or relating to this
Agreement or the interpretation, meaning, performance, breach or enforcement
thereof, including any controversy, dispute or claim based on contract, tort, or
statute, and including without limitation claims relating to the validity of
this Agreement, shall be resolved at the request of either party to this
Agreement by binding arbitration conducted at a location determined by the
arbitrator in Orange, California, administered by and in accordance with the
then existing Rules of Practice and Procedure of J*A*M*S/Endispute, Inc.
(J·A·M·S), and judgment upon any award rendered by the arbitrator(s) may be
entered by any State or Federal Court having jurisdiction
thereof. Either party may commence such proceeding by giving notice
to the other party in the manner provided in paragraph 8 of this
Agreement. Upon filing a demand for arbitration, all parties to the
Agreement will have right of discovery to the maximum extent provided by law for
actions tried before a court, and both agree that in the event of an
arbitration, disputes as to discovery shall be determined by the
arbitrator(s). The arbitrator(s) in any such proceeding shall apply
California substantive law and the California Evidence Code to the
proceeding. The arbitrator(s) shall have the power to grant all legal
and equitable remedies and award damages provided by California
law. The arbitrator(s) shall prepare in writing and provide to the
parties an award including findings of fact and conclusions of
law. The arbitrator(s) shall not have the power to commit errors of
law or legal reasoning, and the award may be vacated or corrected pursuant to
California Code of Civil Procedure §§1286.2 or 1286.6 for any such
error. Each party shall bear his or its expenses, costs and attorney
fees relating to the arbitration and recovery under any order and/or judgment
rendered therein, including one-half the arbitrator(s) fees. The
parties hereto hereby submit to the exclusive jurisdiction of the courts of the
State of California for the purpose of enforcement of this agreement to
arbitrate and any and all awards or orders rendered pursuant
thereto.
13. Severability. If any term or
provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be determined to be invalid, illegal or
unenforceable under present or future laws effective during the term of this
Agreement, then and, in that event: (A) the performance of the offending term or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused provision as may be
possible and be legal, valid and enforceable, and (B) the remaining part of this
Agreement (including the application of the offending term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby and shall continue in
full force and effect to the fullest extent provided by law.
14. Preparation
of Agreement. It is
acknowledged by each party that such party either had separate and independent
advice of counsel or the opportunity to avail itself or himself of
same. In light of these facts it is acknowledged that no party shall
be construed to be solely responsible for the drafting hereof, and therefore any
ambiguity shall not be construed against any party as the alleged draftsman of
this Agreement.
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15. No
Assignment of Rights or Delegation of Duties by Consultant; Company’s Right to
Assign. The Consultant’s
rights and benefits under this Agreement are personal to him and therefore no
such right or benefit shall be subject to voluntary or involuntary alienation,
assignment or transfer. The Company may assign its rights and
delegate its rights and obligations under this Agreement to any other person or
entity, including without limitation, Pubco.
16. Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument, binding on
all parties hereto. Any signature page of this Agreement may be
detached from any counterpart of this Agreement and reattached to any other
counterpart of this Agreement identical in form hereto by having attached to it
one or more additional signature pages.
17. Electronically
Transmitted Documents. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is thereafter
transmitted electronically by facsimile or similar device, such facsimile
document shall for all purposes be treated as if manually signed by the party
whose facsimile signature appears.
18. Non-Competition
During the Employment Period. Consultant acknowledges and
agrees that given the extent and nature of the confidential and proprietary
information he will obtain during the course of his employment with the Company,
it would be inevitable that such confidential information would be disclosed or
utilized by the Consultant should he obtain employment from, or otherwise become
associated with, an entity or person that is engaged in a business or enterprise
that directly competes with the Company. Consequently, during any
period for which Consultant is receiving payments from the Company, Consultant
shall not, without prior written consent of the Company’s Board of Directors,
directly or indirectly own, manage, operate, join, control or participate in the
ownership, management, operation or control of, or be employed by or connected
in any manner with, any enterprise which is engaged in any business competitive
with or similar to that of the Company; provided, however, that such restriction
shall not apply to any passive investment representing an interest of less than
two percent (2%) of an outstanding class of publicly-traded securities of any
Company or other enterprise which is not, at the time of such investment,
engaged in a business competitive with the Company’s business.
19. Non-solicitation. Because of the
nature of Consultant’s work for the Company, Consultant’s solicitation or
serving of certain customers, clients and vendors related to Consultant’s work
for the Company would necessarily involve the proprietary relationships and
goodwill of the Company. Accordingly, for one (1) year following the
termination of Consultant’s services with the Company for any reason, Consultant
shall not, directly or indirectly, solicit, induce, or attempt to solicit or
induce, any person or entity then known to be a customer or client or vendor
(except for Xxxxxxx & Co. which Consultant is already affiliated with) of
the Company, for whom or, on whose behalf, Consultant, during the 90 day period
immediately preceding the termination of Consultant’s employment, (1) performed
any work or services, or (2) participated the preparation of any proposal to
provide such work or services (a “Restricted Customer/Client/Vendor”), to
terminate his, her or its relationship with the Company for any purpose,
including the purpose of associating with or becoming a customer, client or
vendor, whether or not exclusive, of Consultant or any entity of which
Consultant is or becomes an officer, director, member, agent, Consultant or
consultant, or otherwise solicit, induce, or attempt to solicit or induce, any
Restricted Customer/Client/Vendor to terminate his, her or its relationship with
the Company for any other purpose or no purpose. During Consultant’s
service with the Company and for one (1) year thereafter, Consultant shall not,
directly or indirectly, solicit, induce, or attempt to solicit or induce, any
person known to Consultant to be an employee or contractor of the Company to
terminate his, her or its employment or other relationship with the
Company.
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WHEREFORE, the parties have
executed this Consulting Agreement on the date first written above.
“CONSULTANT”
________________________________________
Xxxxx Xxxxxxx
“COMPANY”
Cellynx, Inc.
By:___________________________________
Xxxxxx Xxx
Chief Executive Officer
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