EXHIBIT 10.8
AMENDED AND RESTATED
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of the 30th
day of November, 1996 by and between Xxxxxxxx X. Xxxxxx, Xx., an individual
("Consultant") and Apollo International of Delaware, Inc., a Delaware
corporation ("Company").
W I T N E S S E T H:
WHEREAS, Company is engaged in the business of owning and operating a high
technology design and manufacturing company; and
WHEREAS, Consultant is a business consultant providing services with
respect to certain non-operational matters such as sales and marketing, general
administration, and product development and has significant knowledge and
expertise which the Company deems of great value to its continued operations;
and
WHEREAS, Company desires to engage Consultant as an independent contractor
on the terms and subject to the conditions hereinafter set forth; and
WHEREAS, Consultant is desirous of providing services to the Company as
specified herein in consideration of the compensation hereinafter set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. ENGAGEMENT.
(a) Company hereby engages Consultant, and Consultant hereby accepts
such engagement by Company to provide business advice from time to time to
Company.
(b) Consultant will furnish Consultant's service as an independent
contractor and not as an employee of Company or of any affiliate with Company.
2. TERM. The term of this Agreement shall commence on October 1, 1996
(the "Commencement Date") and shall expire on the date that is five (5) years
after the Commencement Date.
3. COMPENSATION.
(a) Company agrees to pay Consultant during the term, and Consultant
agrees to accept for Consultant's services hereunder, compensation in the form
of 250,000 common stock purchase warrants ("Warrants"). Each Warrant shall
entitle Consultant to acquire one share of the Company's Common Stock at an
exercise price of $5.50 per share commencing June 1, 1998 and terminating June
1, 2002. The Warrants shall provide Consultant with piggy-back registration
rights in the event the Company conducts a secondary offering of its Common
Stock pursuant to a Form S-1 or Form SB-2 registration statement, subject to any
lock-up or other limitations that may be imposed by an underwriter if such
offering is an underwritten public offering. Any such piggy-back registration
rights shall not be exercisable by Consultant until June 1, 1998. Upon issuance
of any shares of Common Stock pursuant to Consultant's exercise of the Warrants,
and as a condition to the issuance of any such shares, Consultant shall enter
into a Shareholders Voting Agreement with Xxxxx X. Xxxxxx in substantially the
form attached hereto as EXHIBIT A and xxxxx Xxxxx X. Xxxxxx an irrevocable proxy
to vote such shares in substantially the form attached hereto as EXHIBIT B,
which proxy shall be effective until the earlier of: (i) June 1, 2002, and (ii)
such time as such shares are included in a registration statement pursuant to
Consultant's piggy-back registration rights hereunder.
(b) Upon the occurrence of:
(i) Consultant's breach of this Agreement, or
(ii) Consultant's (or Consultant's agent's) dishonesty or fraud
resulting in damages to the Company (a "Terminating Event"), the Company may, in
its sole discretion, terminate this Agreement without further liability (except
for earned and unpaid fees under Section 3(c) accrued and unpaid expenses of
Consultant under Section 3(d)) whereupon Consultant shall be entitled to
exercise only a pro rata portion of the Warrants based on the number of months
service provided under this Agreement as follows: in such case, the number of
Warrants that may be exercised by Consultant shall be determined by multiplying
the number
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of Warrant Shares theretofore purchasable upon exercise of the Warrants by a
fraction, of which the numerator shall be the number of months, or portion
thereof, from the Commencement Date to the date of the Terminating Event, and of
which the denominator shall be the number of months representing the full term
of this agreement (60 months). Any unexercised Warrants in excess of such
amount may be terminated by the Company, in the Company's sole discretion.
(c) Company will reimburse Consultant for all expenses reasonably
incurred by Consultant in connection with the performance by Consultant of his
duties hereunder.
4. INDEMNITY. The Consultant shall indemnify and hold Company harmless
from and against any and all liability, loss, damage, cost or expense (including
reasonable attorney fees) arising out of or relating to Consultant's performance
of his services or which Company may incur or sustain by reason of any
malpractice, negligence or other legal liability of Consultant.
5. NATURE OF RELATIONSHIP. Consultant herein is an independent
contractor and will not act as Company's agent, nor shall be deemed an employee
of Company for the purposes of any employee benefit programs, or be deemed an
employee of Company for purposes of income tax withholding, FICA taxes,
unemployment benefits, workers compensation benefits, or otherwise. The
Consultant shall not enter into any agreement or incur any obligations on
Company's behalf, or commit Company in any manner without Company's prior
written consent. As an independent contractor, the Consultant understands and
agrees that Consultant is solely responsible for the control and supervision of
the means by which Consultant's services are performed.
6. NONDISCLOSURE COVENANTS. Except as permitted or directed by Company,
neither Consultant nor its principals or agents shall, during the term of
Consultant's retention or thereafter divulge, furnish or make accessible to
anyone or use in any way any confidential, trade secret or proprietary
information of Company which Consultant has acquired or become acquainted with
during any period of the retention of the Consultant by Company, whether
developed by the Consultant or by others. The Consultant acknowledges that the
above-described knowledge or information constitutes a unique and valuable asset
of Company and represents a substantial investment by Company, and that any
disclosure or other use of such knowledge or information, other than for the
sole benefit of Company, would be wrongful and would cause irreparable harm to
Company. The
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Consultant will refrain from any acts or omissions that would reduce the value
of such knowledge or information to Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information the entirety of
which is now published or subsequently becomes generally publicly known, other
than as a direct or indirect result of the breach of this Agreement by the
Consultant or a breach of a confidentiality obligation owed to Company by any
third party. Consultant further agrees that upon completion or termination of
this Agreement, Consultant will turn over to Company or make such disposition
thereof as may be directed or approved by Company, any notebook, data,
information or other material acquired or compiled by Consultant in carrying out
the terms of this Agreement.
7. NON-COMPETITION. During the term hereof and for a period of three (3)
years following the termination or expiration hereof, consultant agrees that
neither Consultant nor its principals or agents will, directly or indirectly, in
any country in which the Company then operates either directly or through
distributors, sales representatives, or original equipment manufacturers, own,
manage, work for, consult to, operate, or control, in each case directly or
indirectly, any business that is in the same line of business as the Company.
8. INJUNCTIVE RELIEF. The Consultant agrees that it would be difficult
to compensate Company fully for damages for any violation of the provisions of
Section 6 or Section 7 of this Agreement. Accordingly, the Consultant
specifically agrees that Company shall be entitled to temporary and permanent
injunctive relief to enforce Section 6 or Section 7 of this Agreement and that
such relief may be granted without the necessity of proving actual damages.
This provision with respect to injunctive relief shall not, however, diminish
the right of Company to claim and recover damages in addition to injunctive
relief. The provisions of Section 6, Section 7 and this Section 8 shall survive
the termination or expiration of this Agreement.
9. INVESTMENT INTENT. Consultant hereby represents and warrants to the
Company that Consultant is acquiring the Warrants (and Common Stock issuable
upon exercise of said Warrants) (collectively, the "Securities") for investment
purposes only without a view to distribution of the Securities and that
Consultant has no present intent to dispose of or otherwise transfer the
Securities nor is Consultant a party to any agreement for disposition of the
Securities.
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10. GENERAL PROVISIONS.
(a) In the event of a merger or consolidation where Company is not
the surviving or consolidated corporation, or in the event of a transfer of all
or substantially all of the assets of Company, the transferee of Company's
assets shall have the benefit of and be bound by the provisions of this
Agreement.
(b) It is agreed that the invalidity or unenforceability of any
paragraph, section or provision (or any part of any thereof) of this Agreement
shall not affect the validity or enforceability of any one or more of the other
paragraphs, sections or provisions (or other parts of any such paragraph,
section or provision) of this Agreement.
(c) This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes any other or prior
agreement between the parties, including any other consulting agreements between
the parties hereto dated as of the date hereof. This Agreement may not be
amended, modified or renewed, nor may any of these provisions hereof be waived,
except by a writing signed by the parties hereto. A waiver by either party of
any of the terms or conditions of this Agreement, or of any breach thereof,
shall not be deemed a waiver of such term or condition for the future or of any
term or condition, or of any subsequent breach thereof.
(d) This Agreement is a personal contract and may not be assigned or
transferred by Consultant.
(e) Headings herein are for convenience only and shall in any way
define, limit or affect this Agreement.
(f) Any notice required or desired to be given under this Agreement
shall be deemed given if in writing and sent by certified mail, return receipt
requested, to the Consultant's residence or to the Company's principal office,
as the case may be. Such notice shall be deemed delivered seventy-two (72)
hours after deposit into the U.S. Mail.
(g) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(h) This Agreement shall be governed by and construed in accordance
with Florida law and the parties
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hereby submit to the jurisdiction and venue of the state and federal courts
located in Orange County, Florida.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
and effective the day and year first above written.
Consultant:
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
Company:
APOLLO INTERNATIONAL OF DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Its: President
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