Exhibit 10.5
CONSULTING AGREEMENT
PREAMBLE: This is an Agreement ("Agreement"), dated May 3, 2002 and effective as
of May 3, 2002 ("Effective Date") between Xxxxxx L Down, an individual with his
address at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Consultant") and ADVA
International Inc., 000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX (together
with its wholly owned subsidiary Global Information Group USA, Inc ("GIG") known
hereinafter as "ADVA" or "Client")
PURPOSE: Client wishes to retain the services and expertise of Xxxxxx L Down
("Consultant") to advise and consult Client in such business and management
matters relative to Client's Business as will be found in Exhibit A, attached
Specification, and Consultant is willing to provide such services.
1. Consultant agrees, subject to Section 7, that for a period of six (6)
months commencing with the Effective Date of this Agreement
("Employment Period"), he will, consistent with any other obligations,
render to Client such consulting services on a retainer basis as Client
may request relating to the definition of the Client's business set
forth in Exhibit A. Consultant shall not be required at any time to
render service that would conflict with obligations of Consultant
undertaken prior to the request for such services by Client.
2. Client agrees to reimburse Consultant for such consulting services at
the rates and terms shown in Exhibit B attached, Compensation.
Consultant shall invoice Client for services rendered monthly and
invoices shall be payable upon receipt. Invoices shall include work
provided and a brief description of the services rendered. Upon
adequate substantiation, Client will reimburse Consultant for all
reasonable travel and other expenses incurred by Consultant on the
behalf of, and requested by Client. Prior written approval (for this
purpose, confirmed e mail or telefax shall suffice) by Client's
designated representative shall be required for all travel outside the
state of North and South Carolina in connection with this Agreement.
3. Consultant is empowered as President of GIG and shall act as an Officer
and Secretary of Client and Consultant may make representations as such
of Client. Consultant shall furnish private insurance and be
responsible for all taxes as an independent Consultant. Client shall be
responsible for providing any professional or business liability
insurance directly related to functions requested of the Consultant as
such may be required by law or as prudent business practises would
reasonably dictate. Consultant shall have authority on behalf of and at
the behest of the Board of Directors to bind Client and or incur other
obligations on behalf of Client.
4. Consultant will promptly disclose to Client each discovery which it
reasonably believes may be new, available for patent or copyright, when
conceived by it in carrying out the consulting services contracted for
herein. Client shall have the right to file a patent or copyright
application with Consultant or its employees listed as inventor, at
Client's expense and on each discovery, and Consultant agrees to
cooperate with Client and to execute all proper documents at the
expense of Client to enable Client to obtain patent or copyright
protection in the United States and foreign countries. Consultant
agrees to assign all rights to each such patent or copyright
application and patent or copyright to Client, but Consultant shall
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have free, non-exclusive and irrevocable license to use of the patent
or copyright with the right to sublicense use in all areas except those
of the Specification. In the event Client fails to file a patent
application on any such discovery within six (6) months after written
disclosure thereof to Client, Consultant shall have the right to file
such, at Consultant's expense, in the United States and foreign
countries. On each patent or copyright issuing from such application
Client shall have a free, non-exclusive irrevocable license, with the
right to sublicense, in the areas of the Specification.
5. In the event Client discloses information to Consultant that Client
considers to be secret or proprietary and so notifies Consultant,
Consultant agrees to hold the Proprietary Information in confidence and
to treat the Proprietary Information with at least the same degree of
care and safeguards that he takes with his own proprietary information.
Consultant shall use proprietary Information only in connection with
services rendered under this Agreement. Proprietary Information shall
not be deemed to include information that (a) is in or becomes in the
public domain without violation of this Agreement by Consultant, or (b)
is already in the possession of Consultant, as evidenced by written
documents, prior to the disclosure thereof by Client, or (c) is
rightfully received from a third entity having no obligation to Client
and without violation of this Agreement by Consultant. Both Client and
Consultant agree to execute a Mutual Non-Disclosure Agreement within
three (3) business days of the Effective Date, which shall give effect
to the terms of this section.
6. Consultant warrants that it is under no obligation to any other entity
that in any way conflicts with this Agreement, that he is free to enter
into this Agreement, and is under no obligation to consult for others
in Client's business as defined in the Specification. Consultant shall
not, during the term of this Agreement, perform consulting services for
others in the areas of the Specification but shall have the right to
perform consulting services for others outside the Specification.
7. The Company shall have the option to terminate the Agreement ("Company
Termination") for any reason, having provided 60 days advance written
notice to the Consultant. The fee for termination prior to term shall
be equal to three (3) months of Consultant's Retainer Fees as defined
in Compensation. All outstanding and unreimbursed expenses shall be
reimbursed within two (2) business days of the actual date of
termination.
8. Any and all materials, equipment, computers, services, software or
products provided for the Consultant by the Client are to be used
solely in the commission of the Consultant's services for the Client
and remain the sole property of the Client. Consultant agrees to return
all such materials at the Client's expense and specification within ten
(10) days of a written request to do so. Client shall not be held
liable for any illegal use of said products or services, or use by the
Consultant unrelated to Clients business, or any resulting legal action
thereof.
9. The provisions of Section 5 hereof shall survive any termination of
this Agreement for a period of two (2) years.
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In WITNESS WHEREOF, the parties have executed this Agreement:
FOR: Xxxxxx L Down FOR: ADVA International Inc
(Client)
Signed: /s/Xxxxxx X. Down Signed: /s/Xxxxx X. Xxxxxxxx
--------------------------------------------- -------------------------------------------
Xxxxxx L Down Xxxxx Xxxxxxxx, CEO and Chairman of the
(Consultant) Board
Date: May 03, 2002 Date: May 03, 2002
--------------------------------------------- -------------------------------------------
WITNESS:
/s/C. Xxxxx Xxxxx
-----------------------------------------
C. Xxxxx Xxxxx, Non-Executive Director
of ADVA International
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EXHIBIT A: SPECIFICATION
This Exhibit, effective as of May 3, 2002 by and between Xxxxxx X. Down
("Consultant") and ADVA International Inc ("Client") relative to an Agreement
between the same dated May 3, 2002 ("Agreement").
The parties agree that:
1. Effect of Exhibit. This Exhibit is a modification of the Agreement only to
the extent specifically provided. If there is any conflict between the
terms of this Exhibit and the terms of the Agreement, the terms of this
Exhibit shall control. Otherwise the terms of the Agreement shall remain in
full force and effect as provided therein. Terms used in this Exhibit that
are defined in the Agreement shall have the meanings given to them in the
Agreement.
2. Definition of the Client's Business. The Client's business is, for the
purposes of the Agreement and exhibits thereto, defined as the development
and marketing of computer software utilized in the production of computer
generated 3D models, animation and rendering as well as the delivery of
services and materials in support thereof. If, within the term of this
Agreement and in the course of Client's future business activities, the
Client wishes to expand said definition, such changes must be agreed by the
Consultant in advance, no reasonable agreement being withheld unless (a)
said expansion shall conflict with current or planned activities of the
Consultant in other venues or (b) said expansion shall be impossible for
Consultant to agree due to work already contracted with other entities.
3. Work Made for Hire. All copyrights in the entire contents of the following
Work(s): said list of Works to be found under Sec. 6 herein, - Scope of
Work; shall be owned by the Client under the work made for hire provisions
of the U.S. Copyright Act, 17 U.S.C.ss.101, et seq. since Work has been
specially ordered or commissioned by the Client as a contribution to a
collective work, as a compilation or as an audiovisual work, and this
Exhibit expressly provides that such Work shall be a work made for hire;
provided, however, that the copyrights in any of the Consultant's Content
that is included in such Work shall, as between the Client and the
Consultant, continue to be owned by the Consultant, and the Consultant
shall continue to own all copyrights and other rights in the Consultant's
Software used to create, and to operate such Work. Any materials,
documents, plans or other information developed by the Consultant for other
clients and/or not specific to the Client's business as described in the
Specification hereto, that may be shared with the Client from time to time
in the normal execution of this Agreement, shall remain the sole property
of the Consultant.
4. Documents. The Consultant agrees to execute and deliver to the Client any
documents, including any transfers or assignments of copyrights and other
rights, that are reasonably requested by the Client in order to confirm or
effectuate the Client's ownership of and the copyright to the Work(s)
listed in Section 6 of this Exhibit subject to the limitations provided for
in such Section.
5. Non-Disclosure. The Consultant shall not, without the express written
consent of the Board of Directors or its designee, either during or after
the termination of this Agreement:
(i) divulge or communicate to any person or persons (except to
officials of ADVA, or its affiliates); or
(ii) use for his own purposes or for any purposes other than those of
ADVA or its affiliates, any knowledge or information which the Consultant,
acting reasonably, believes or should believe to be of a confidential nature
which
(A) relates to the business or affairs of ADVA, or any affiliate
of ADVA or its subsidiaries;
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(B) relates to the workings of any process or invention which is
carried on or used by ADVA, its subsidiaries or any affiliate
of ADVA;
(C) has been obtained from any third party on terms restricting
its disclosure or use; or
(D) relates to the clients or customers of ADVA, its subsidiaries
or any affiliate of ADVA provided however, these restrictions
shall cease to apply to any information or knowledge which may
come into the public domain (otherwise than through
unauthorized disclosure).
6. Scope of Work. The Consultant shall hold the title of President of Global
Information Group USA Inc. ("GIG") a wholly owned subsidiary of ADVA for
the term of this Agreement. This in no way obligates or binds Mr. Down as
an employee of the Client and his relationship with Client shall be
governed solely under the provisions of Section 3 of this Agreement.
The scope of work to be delivered to the Client shall broadly encompass the
following efforts and in all cases shall be specific to the Client's
business as described in the Specification hereto:
Employment Duties.
-----------------
GLOBAL INFORMATION GROUP USA INC. (GIG) PRESIDENT/ DIRECTOR
During the Employment Period, the Consultant agrees to serve as President of
GIG and Secretary of ADVA, except as may be modified by the written
agreement of the parties hereto. In his capacity as President of GIG, the
Consultant shall promote the best interests of GIG, will be responsible for
the day-to-day operations of GIG and shall perform such managerial duties
and responsibilities for GIG, as may from time to time be assigned to him by
the Board of Directors of both ADVA and GIG. The Consultant shall have
supervision and control over and responsibility for all areas of operations;
shall perform such other duties as may from time to time be assigned to him
by the Board of Directors and/or the Chief Executive Officer ("CEO") of
ADVA; and shall report directly to the CEO on a regular basis or as dictated
by events, but in no case less frequently than every week. Reports shall be
in a format to be determined by ADVA. The Consultant shall keep complete and
accurate records which reflect the carrying out of his duties hereunder,
shall keep the Board of Directors fully informed of developments relating to
the carrying out of his duties hereunder and shall report on such at the
request of the CEO.
6. Milestones. The establishment of milestones is not applicable to this
document. However, any future milestones and time-sensitive plans, as such
will be mutually agreed by Client and Consultant, shall be based on a
Retainer of one hundred (100) hours per month and shall only anticipate and
include Retainer Plus hours when specifically requested in writing by the
BOD or its representative so designated. All dates and milestones shall be
based on the timely completion of activities and delivery of any
facilitating materials, documents, information and/or decisions in a timely
manner by the Client.
7. Termination with Cause. Client may terminate this Agreement at any time for
cause. The Consultant shall have no right to receive any future
compensation as defined in attached Exhibit B, Compensation, for any period
after termination for cause, excepting any monies due and owing for prior
work and reimbursement for any approved and unreimbursed expenses. The term
"for cause" shall include and shall be limited to the following events:
(i) The Consultant or its management is convicted of a felony or other
serious crime involving fraud, dishonesty or violence;
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(ii) The Consultant willfully and deliberately fails or refuses in a
material respect to comply with a significant instruction of the Board of
Directors of ADVA, provided the Consultant fails to cure such
non-compliance within thirty (30) days after receiving written notice of
such non-compliance, other than non-compliance due to Force Majeure (as
defined in Sec. 6 - Exhibit C attached herewith), which willful failure
results in, or which in the good faith judgment of the Board of Directors
may result in demonstrable material injury and damage to the Client; or
(iii) The Consultant willfully and deliberately makes material
misrepresentations to the Board of Directors of ADVA.
If Client's Board of Directors determines that Consultant's Retainer under
this Agreement shall be terminated for cause, then the Board of Directors
shall forthwith provide Consultant with a written notice of said
determination. The notice shall contain a detailed statement of the facts,
which constitute the particulars of the cause for termination.
In WITNESS WHEREOF, the parties have executed this Exhibit:
FOR: Xxxxxx L Down FOR: ADVA International Inc
(Client)
Signed: /s/Xxxxxx X. Down Signed: /s/Xxxxx X. Xxxxxxxx
--------------------------------------------- -------------------------------------------
Xxxxxx L Down Xxxxx Xxxxxxxx, CEO and Chairman of the
(Consultant) Board
Date: May 03, 2002 Date: May 03, 2002
--------------------------------------------- -------------------------------------------
WITNESS:
/s/C. Xxxxx Xxxxx
-----------------------------------------
C. Xxxxx Xxxxx, Non-Executive Director
of ADVA International
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EXHIBIT B: COMPENSATION, RATES, PAYMENT DETAILS, AND APPROVED EXPENSE
REIMBURSEMENT
This Exhibit, effective as of May 1, 2002 by and between Xxxxxx X. Down
("Consultant") and ADVA International Inc ("Client") relative to an Agreement
between the same dated April 30, 2002 ("Agreement").
The parties agree that:
1. Effect of Exhibit. This Exhibit is a modification of the Agreement only to
the extent specifically provided. If there is any conflict between the
terms of this Exhibit and the terms of the Agreement, the terms of this
Exhibit shall control. Otherwise the terms of the Agreement shall remain in
full force and effect as provided therein. Terms used in this Exhibit that
are defined in the Agreement shall have the meanings given to them in the
Agreement.
2. Rates. Hourly rate as follows:
i. Retainer. The Retainer fee for one hundred (100) hours per month will
be billed at $62.50 per hour monthly and shall be payable upon
receipt.
ii. Additional Hours. The Retainer Plus (hereinafter defined as hours
worked upon Client request in excess of one hundred (100) hours per
month or, work requested over weekends/national holidays) fee will be
billed at $ 87.50 per hour. If approved, Retainer Plus fees will be
invoiced to the Company monthly post facto and payable upon receipt.
iii. Travel. Time spent traveling on Client business will be billed at 50%
of Retainer Fee for any domestic travel under six hours excepting the
commute from Columbia SC to Rock Hill and return. If Client requests
travel on US national holidays/weekends, the Retainer Plus fee shall
apply in the same percentages herein. Any single travel day shall be
billed at a maximum of six hours total, regardless of actual time
spent by Consultant. All travel shall conform to the ADVA Corporate
Practices Manual (TBA by the BOD).
iv. Payment Details. Payment is on date due via company check two (2)
business days from receipt of invoice. Approved business expenses
shall be reimbursed monthly upon receipt of invoice in like manner.
v. Guarantee - The Company guarantees the Retainer for one hundred (100)
hours per month, regardless of Company usage of Consultant, changes of
control, or other reasons. Any hours not used by Client will not carry
over to following month.
3. Reimbursement. The Client agrees to reimburse the Consultant for any
approved out-of-pocket expenses incurred upon the behalf of the Client upon
presentation of valid documentation/sales receipts. Requests for approved
out-of-pocket expenses shall be submitted monthly and are due upon receipt.
i. In the case of any Client-requested travel, event participation fees
or any expense which is anticipated to be in excess of $250- in toto;
the Consultant reserves the right to request, and the Client agrees to
disburse, said monies in advance of the travel, event or anticipated
expenditure.
ii. The Client agrees to reimburse the Consultant for any third party
assistance, which the Client has instructed the Consultant to retain
in the execution of this Agreement. Charges for third party assistance
shall be submitted monthly and are due upon receipt. All
reimbursements shall be executed by the Client under the same terms as
found in Rates hereto.
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4. Stock Options. The Consultant, or its designee, shall receive, on the
Effective Date hereof, a stock option to purchase 50,000 shares of ADVA
Common Stock, The option shall be granted pursuant to the ADVA 2001 Stock
Option Plan as adopted.
a. The exercise price shall be based on the per share market price on
the date on which the options are granted by the Board of Directors
(the "Grant Date"). Should the stock be non-trading or there is no
price available at the Grant Date, the exercise price shall be set
at the lesser of the last price quoted for ADII.OB on the Nasdaq
OTC: BB or the first price set at the recommencement of trading on
the same or other bourse.
b. All options shall vest completely, regardless of employment status,
90 days from the Grant Date.
c. Should the ADVA's stock be permanently de-listed, ADVA files for
bankruptcy protection or undergoes a "change of control" as defined
in the Securities and Exchange Act of 1933, as amended, all of the
Consultant's granted options shall vest immediately and, upon
exercise, the Consultant shall be entitled to all powers and rights
in the stock thereto.
In WITNESS WHEREOF, the parties have executed this Exhibit:
FOR: Xxxxxx L Down FOR: ADVA International Inc
(Client)
Signed: /s/Xxxxxx X. Down Signed: /s/Xxxxx X. Xxxxxxxx
--------------------------------------------- -------------------------------------------
Xxxxxx L Down Xxxxx Xxxxxxxx, CEO and Chairman of the
(Consultant) Board
Date: May 03, 2002 Date: May 03, 2002
--------------------------------------------- -------------------------------------------
WITNESS:
/s/C. Xxxxx Xxxxx
-----------------------------------------
C. Xxxxx Xxxxx, Non-Executive Director
of ADVA International
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EXHIBIT C: LIMITATION OF LIABILITY AND GENERAL PROVISIONS
This Exhibit, effective as of May 1, 2002 by and between Xxxxxx X. Down
("Consultant") and ADVA International Inc ("Client") relative to an Agreement
between the same dated April 30, 2002 ("Agreement").
The parties agree that:
1. Effect of Exhibit. This Exhibit is a modification of the Agreement only
to the extent specifically provided. If there is any conflict between
the terms of this Exhibit and the terms of the Agreement, the terms of
this Exhibit shall control. Otherwise the terms of the Agreement shall
remain in full force and effect as provided therein. Terms used in this
Exhibit that are defined in the Agreement shall have the meanings given
to them in the Agreement.
2. Limitation of Liability. To the maximum extent permitted by applicable
law, in no event shall the Consultant (excepting in the provisions of
Section 5 hereunder), or its suppliers be liable for any special,
incidental, indirect, or consequential damages whatsoever (including,
without limitation, damages for loss of business profits, business
interruption, loss of business information, or any other pecuniary
loss) arising out of the failure to provide advice, support services or
products, even if the Consultant has been advised of the possibility of
such damages. In any case, the Consultant's entire liability under any
provision of this Agreement shall be limited to the monetary fees
charged for the specific advice, service or product in question as
provided by this Agreement.
3. Limitation of Claims. No claim, regardless of form, which in any way
arises out of this Agreement or the parties' performance of this
Agreement may be made, nor action based upon such a claim brought, by
either party more than one (1) year after the termination of this
agreement or basis for the claim becomes known to the party desiring to
assert it, which ever is shorter.
4. Fiduciary Duty to ADVA. During the period of hire and while Consultant
is receiving payments pursuant to Exhibit B hereof, Consultant shall:
i. Not conduct, engage in, assist or otherwise carry out, directly
or indirectly, any act or action, which the Consultant, acting
reasonably, believes or should believe, would be harmful or
inimical to the interests of the Company, its Parent or its
affiliates. For purposes of this Agreement, "affiliate" shall
have the meaning ascribed thereto in Rule 405 of the Securities
Act of 1933.
ii. Provide, in a timely and true manner to the best of the
Consultant's knowledge and ability, all material information and
documents so requested by the Client or, its attorneys and
auditors, if such, in the opinion of the Board of Directors, are
necessary to the proper performance of ADVA in the reporting of
its activities as may be required by any body or court of
governmental jurisdiction.
Any other provisions herein notwithstanding, the Client reserves the
right to take any legal action, seek injunctive relief and/or monetary
damages against the Consultant in the case that the Board of Directors
discovers, in fact, that such activity as in Sec. 4(i) has been
undertaken and/or upon Consultant's failure to perform as in Sec 4(ii)
during the term of this Agreement.
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5. Force Majeure. Each party's performance of this Agreement is subject to
interruption and delay due to causes beyond its reasonable control such
as acts of God, acts of any government, war or other hostility, the
elements, fire, explosion, power failure, equipment failure, industrial
or labor dispute, inability to obtain necessary supplies, health,
personal emergencies and the like. In the event of such interruption or
delay, the period of performance shall be extended for a period of time
equal to the interruption or delay; provided, however, that, if any
such interruption or delay continues for more than ninety (90) days,
the party whose performance is not affected may terminate this
Agreement immediately upon giving written notice of termination to the
other party.
6. General Provisions.
a. Non-Assignability. This Agreement may not be assigned without the
mutual written consent of both parties hereto.
b. No Attachment. Except as otherwise required by law, no right to
receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such
action shall be null, void and of no effect.
c. Amendment. No amendment or modification of this Agreement shall be
deemed effective unless and until executed in writing by the parties
hereto.
d. Headings and Captions. The headings and captions contained in this
Agreement are inserted for convenience only and shall not constitute
a part hereof.
7. Severability. If for any reason any provision of this Agreement shall
be held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and all other such provisions
shall to the full extent consistent with law continue in full force and
effect. If any such provision shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision not held
so invalid, and the rest of such provision, together with all other
provisions of this Agreement, shall likewise to the full extent
consistent with law continue in full force and effort.
8. Non-Waiver. Failure of either party to enforce any provision of this
Agreement shall not constitute or be construed as a waiver neither of
such provision nor of the right to enforce such provision or any other
terms herein.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall have been duly given if
delivered by hand or mailed, certified or registered mail, return
receipt requested, with postage prepaid, to the following address or to
such other address as either party may designate by like notice:
If to ADVA:
----------
ADVA International Inc.
000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX
Facsimile: 803.327.7006
Attention: Xxxxxx X. Down
With a copy to:
Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: 215.569.5555
Attention: Xxxxx X. Xxxxxx, Esquire
or such other address as Client may designate,
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and if to Consultant:
--------------------
Xxxxxx X. Down
00 Xxxxxxxx Xxxxxx,
Xxxxxxxx XX 00000
Facsimile: 803.738.3559
11. Settlement of Disputes. Except for claims arising under Section 5
hereof, all claims, controversies, demands, disputes or differences
between the parties hereto or any persons bound hereby arising out of,
or by virtue of, or in connection with, or relating to this Agreement
shall be submitted to and determined by arbitration in accordance with
this Section 11.
i. In the event of such a claim, controversy, demand, dispute or
difference, ADVA, on the one hand, and Consultant on the other
hand, shall each select one arbitrator and shall together select
a third arbitrator who is neutral and unbiased, and who shall
serve as the chairman of the panel. If the parties are unable to
agree upon the third arbitrator, or if one of the parties is
unable or fails to select an arbitrator in accordance with this
Section, the American Arbitration Association ("AAA") shall be
designated by either party to appoint such arbitrator(s) to
arbitrate the matter in accordance with this Section.
ii. The matter shall be arbitrated under the commercial arbitration
rules of the AAA then obtaining, such arbitration to be held in
the City of Charlotte, North Carolina. At any time before a
decision of the arbitration panel has been rendered, the parties
may resolve the dispute by settlement. The decision of a
majority of arbitrators shall be the award of the panel of
arbitrators and shall be made in writing setting forth the award
and the reasons for the decision. Such award shall be binding
and conclusive on all parties, shall not be subject to appeal
and may be enforced as such in accordance with the provisions of
the award. This agreement to arbitrate is specifically
enforceable by the parties to this Agreement.
12. Governing Law. This Agreement has been executed and delivered in the
State of South Carolina and its validity, interpretation, performance
and enforcement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to any choice
of law or conflict of laws rules or provisions (whether of the State of
South Carolina or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Delaware.
13. Consent to Jurisdiction. Except as provided in Section 11 hereof,
Consultant and ADVA irrevocably consent to the exclusive jurisdiction
of the state and/or federal courts located in the District of South
Carolina, in any action or proceeding pursuant to this Agreement and
agree to service of process in accordance with Section 10 herein.
14. Entire Understanding. This Agreement sets forth the entire
understanding between the parties with respect to the subject matter
hereof and cancels and supersedes all prior oral and written agreements
between the parties or otherwise applicable to Consultant, with respect
to the subject matter hereof.
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CONSULTANT AFFIRMS THAT THE ONLY CONSIDERATION FOR SIGNING THIS
AGREEMENT ARE THE TERMS STATED HEREIN, THAT NO OTHER PROMISES OR
AGREEMENTS OF ANY KIND HAVE BEEN MADE TO OR WITH HIM BY ANY PERSON OR
ENTITY WHATSOEVER TO CAUSE HIM TO SIGN THIS AGREEMENT, AND THAT HE
FULLY UNDERSTANDS THE MEANING AND INTENT OF THIS DOCUMENT. CONSULTANT
STATES AND REPRESENTS THAT HE HAS BEEN ADVISED, AND HAD AN OPPORTUNITY,
TO DISCUSS FULLY AND REVIEW THE TERMS OF THIS AGREEMENT WITH AN
ATTORNEY. CONSULTANT FURTHER STATES AND REPRESENTS THAT HE HAS
CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE CONDITIONS HEREOF,
FREELY AND VOLUNTARILY ASSENTS TO ALL THE TERMS AND CONDITIONS HEREOF,
AND SIGNS THE SAME AS HIS OWN FREE ACT.
In WITNESS WHEREOF, the parties have executed this Exhibit:
FOR: Xxxxxx L Down FOR: ADVA International Inc
(Client)
Signed: /s/Xxxxxx X. Down Signed: /s/Xxxxx X. Xxxxxxxx
--------------------------------------------- -------------------------------------------
Xxxxxx L Down Xxxxx Xxxxxxxx, CEO and Chairman of the
(Consultant) Board
Date: May 03, 2002 Date: May 03, 2002
--------------------------------------------- -------------------------------------------
WITNESS:
/s/C. Xxxxx Xxxxx
-----------------------------------------
C. Xxxxx Xxxxx, Non-Executive Director
of ADVA International
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