EXHIBIT 10.1
Xxxxxxx Xxxxx Consulting, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
As of January 1, 2001
The XXXXxxxxx.Xxx
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 0000
Re: Consulting Agreement
Gentlemen:
Xxxxxxx Xxxxx Consulting, Inc. ("Xxxxxxx Xxxxx") hereby agrees to
provide The XXXXxxxxx.Xxx (the "Company") with non-exclusive consulting services
on the following terms and conditions:
1. Services. Xxxxxxx Xxxxx, to the extent reasonably required in the
conduct of the business of the Company and at the request of the Company, will
provide consulting services to the Company, including, but not limited to
advising and counseling the Company in its public relations, media relations,
and marketing activities, and cultivating and monitoring the Company's media
coverage.
2. Time Devoted. Xxxxxxx Xxxxx will train or keep available an adequate
organization of personnel or outside professionals for the performance of its
services under this Agreement. The foregoing notwithstanding, Xxxxxxx Xxxxx
shall not be required to devote its full time and attention to the performance
of its services under this Agreement, but shall devote only so much of its time
and attention as it deems reasonable or necessary for such purposes. In
addition, the Company recognizes that Xxxxxxx Xxxxx presently renders and may
continue to render consulting and other services to other companies which may or
may not conduct activities similar to those of the Company. Xxxxxxx Xxxxx is
free to render such advice and other services, and the Company hereby consents
thereto.
3. Fees. In consideration of the services to be performed by Xxxxxxx
Xxxxx, the Company agrees as follows:
(a) During the term of this Agreement, the Company shall pay Xxxxxxx
Xxxxx monthly consulting fee of $25,000, commencing on the date hereof.
4. Reimbursement of Expenses. During the term of this Agreement, the
Company shall reimburse Xxxxxxx Xxxxx for all reasonable out-of-pocket expenses
incurred by Xxxxxxx Xxxxx in connection with its services under this Agreement.
Upon request, Xxxxxxx Xxxxx shall provide the Company with an itemized account
or other evidence of those expenses
Xxxxxxx Xxxxx Consulting, Inc.
As of January 1, 2001
Page 2
for which reimbursement then is being sought, all in form reasonably
satisfactory to the Company.
5. Representations and Warranties; Additional Covenant.
(a) The Company represents and warrants to Xxxxxxx Xxxxx that the
execution and performance of this Agreement by the Company has been duly
authorized, and this Agreement constitutes the valid and binding obligation of
the Company, enforceable in accordance with its terms.
(b) The Company understands that Xxxxxxx Xxxxx, without independent
investigation, will rely on information supplied to it by the Company. The
Company covenants that all such information provided to Xxxxxxx Xxxxx by the
Company shall be true, accurate, complete, and correct in all respects.
6. Term. The term of this Agreement (the "Term") shall commence on the
date hereof, and shall expire on the first anniversary of the date hereof. The
Term shall automatically renew for successive one-year periods unless either
party gives the other written notice of termination at least ninety (90) days
prior to the end of the then current Term.
7. Termination.
(a) Section 6 hereof notwithstanding, either party may terminate this
Agreement at any time upon the occurrence of any of the following events:
(1) The other party's failure to cure any material breach of this
Agreement within 15 days after written notification of such breach by the other
party.
(2) The other party ceasing to function as a going concern,
declaring bankruptcy or otherwise taking advantage of insolvency laws.
(3) The other party engaging in any act or failure to act related
to the subject matter of this Agreement which is determined by a court or other
tribunal of competent jurisdiction to be illegal or an unfair or deceptive trade
practice in violation of applicable law or accepted standards of ethical
conduct.
8. Limitation of Liability. In performing its services under this
Agreement, neither Xxxxxxx Xxxxx nor any officer, director, employee,
shareholder, or agent of Xxxxxxx Xxxxx will be liable to the Company or its
creditors for errors of judgment or for any other acts, except for acts of gross
negligence, willful misconduct, or bad faith of Xxxxxxx Xxxxx or its employees.
Xxxxxxx Xxxxx will not be accountable for any loss suffered by the Company by
reason of the Company's action or non action on the basis of any advice,
recommendation, or approval of Xxxxxxx Xxxxx, its officers, directors,
employees, or agents.
Xxxxxxx Xxxxx Consulting, Inc.
As of January 1, 2001
Page 3
9. Indemnification. The Company shall indemnify and hold harmless
Xxxxxxx Xxxxx and its officers, directors, employees, stockholders, affiliates,
or agents (collectively, the "Consulting Parties") from and against, for and in
respect of, any and all any liabilities, obligations, damages, claims, expenses
(including reasonable legal fees and disbursements), and costs (collectively,
"Liabilities") incurred by them or any of them that arise out of or in
connection with or that relate to services rendered by pursuant to this
Agreement, except to the extent they arise from the gross negligence, willful
misconduct, or bad faith of the Consulting Parties. Xxxxxxx Xxxxx shall
indemnify and hold harmless the Company and its officers, directors, employees,
stockholders, agents, and affiliates from and against all Liabilities that
incurred by them or any of them that result from the gross negligence, willful
misconduct, or bad faith of the Consulting Parties in performing the services
hereunder.
10. Confidentiality. In the course of performing its duties hereunder,
Xxxxxxx Xxxxx may become aware of confidential information of the Company,
including, but not limited to, trade secrets under the Uniform Trade Secrets
Act, technical product data software programs, software code, designs,
prototypes, methods, techniques, business plans, product pricing, sales goals,
marketing information, customer and vendor lists, and other information not
generally available to the public (collectively, "Confidential Information").
Xxxxxxx Xxxxx shall maintain in confidence and, except as provided in this
Agreement, not use for its own benefit, directly or indirectly, any Confidential
Information received from tile Company, and shall not publish, disseminate, or
disclose any Confidential Information without the express written permission of
the Company, except to the extent necessary to carry out its duties hereunder.
This obligation shall not apply to Confidential Information which (1) was known
to Xxxxxxx Xxxxx prior to disclosure by the Company, (2) is disclosed to Xxxxxxx
Xxxxx by a third party without violation of any obligation of confidentiality to
the Company, or (3) which is in the public domain (other than as a result of a
breach of Xxxxxxx Xxxxx'x obligation of confidentiality). Upon request, all
Confidential Information shall be returned to the Company upon the termination
or expiration of this Agreement, with the exception of a single copy which may
be retained in a confidential file solely for the purpose of determining
compliance with this Section. The covenants contained in this Paragraph 10 shall
expire five (5) years after the termination or expiration of this Agreement,
except that technical information shall be kept confidential indefinitely.
11. Nature of Relationship. Nothing in this Agreement shall be
construed to place Xxxxxxx Xxxxx and the Company in the relationship of partners
or joint venturers. Neither Xxxxxxx Xxxxx nor the Company shall represent itself
as the agent or legal representative of the other for any purpose whatsoever,
nor shall either have the power Xxxxxxx Xxxxx Consulting, Inc. to obligate or
bind the other in any matter whatsoever. Xxxxxxx Xxxxx, in performing its
services hereunder, shall at all times be an independent contractor.
12. Miscellaneous.
(a) This Agreement shall be construed and enforced in accordance with
the laws of the State of New York without regard to principles of conflicts of
laws. The parties to this Agreement, acting for themselves and for their
respective beneficiaries, heirs,
Xxxxxxx Xxxxx Consulting, Inc.
As of January 1, 2001
Page 4
successors, and assigns, without regard to domicile, citizenship, or residence,
hereby expressly and irrevocably elect as the sole judicial forum for the
adjudication of any matters arising under or in connection with this Agreement
the courts of the state of New York located in Nassau County and/or the United
States District Court for the Eastern District of New York, and consent and
subject themselves to the jurisdiction of such courts.
(b) This Agreement constitutes the entire understanding and agreement
between the parties with respect to its subject matter, and there are no
agreements or understandings with respect to the subject matter that are not
contained in this Agreement. This Agreement may be modified only in writing
signed by each party to this Agreement.
(c) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(d) It is the desire and intent of the parties that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision of this Agreement
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such provisions of this Agreement in the particular jurisdiction in
which such adjudication is made. In addition, if the scope of any restriction
contained in this Agreement is too broad to permit enforcement thereof to its
fullest extent in any jurisdiction, then such restriction shall be enforced to
the maximum extent permitted by law in such jurisdiction, and Xxxxxxx Xxxxx
hereby consents and agrees that such scope may be judicially modified
accordingly in any such jurisdiction in any proceeding brought to enforce such
restriction.
Please indicate your agreement to and acceptance of the provisions of
this Agreement by signing below.
Very truly yours,
Xxxxxxx Xxxxx Consulting, Inc.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, CEO
Agreed and accepted as of
the date above written:
The XXXXxxxxx.Xxx
By: /s/ Xxxx Xxxxxxxxx
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