Exhibit 10.8
CONSULTING AGREEMENT
This Consulting Agreement is dated as of August 6, 1999 between
SOLUTIONET, LTD., a corporation organized and existing under the laws of the
State of Delaware and having its executive offices at 185 Xxxxx Xxxxx Lane,
Williston, Vermont (the "Corporation"), and Xxxxx X. Xxxxxxxx, III, an
individual residing in Charlotte, Vermont ("Consultant").
Whereas, the Corporation is engaged in the business of developing
computer and software technology;
Whereas, the Consultant was previously the sole shareholder of the
Corporation but has sold an approximately 55% interest in the Corporation to
xXxxx.Xxx, Inc.
Whereas, the Corporation will continue to need the services of the
Consultant, to serve as acting President of the Corporation, recognizing that
the Consultant is currently employed by xXxxx.Xxx, Inc. ("eNote") as eNote's
Director of Technology;
Now Therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agrees as follows:
1. Engagement. Upon the terms and conditions contained in this
Agreement, the Corporation hereby engages the Consultant, and the Consultant
hereby accepts the engagement, and agrees to be a consultant to the Corporation
as its acting President.
2. Services. During the term of this Agreement, as defined in
Section 4 below (the "Term"), at the request of the Corporation, the Consultant
shall give to the Corporation the benefit of the Consultant's skill in
performing the tasks described herein (the "Consulting Services"). Consulting
Services shall mean preparing and reviewing the Corporation's financial and
business projections, reviewing the Corporation's work in process, providing
assistance to the Corporation with respect to its technological developments and
improvements, performing similar duties commensurate with Consultant's
experience, advising on past or potential projects, advising on past or
potential corporate actions, and tracking the financial progress and condition
of the Corporation as summarized by the financial statements of the Corporation
that are provided to the Consultant. The Consultant shall be given access to all
necessary documents, materials and other information in order to render such
Consulting Services. In no event shall the consultant be required to provide
Consulting Services for more than two hundred (200) hours per year, all of which
services shall be rendered during times that are mutually agreeable to the
Corporation and the Consultant.
The Corporation recognizes that the Consultant is employed by
xXxxx.Xxx, Inc., a shareholder of the Corporation, and that the Consulting
Services to be provided hereunder are not to conflict with any obligations that
Consultant has under any employment agreement that he may have with xXxxx.Xxx,
Inc.
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3. Compensation. The Corporation shall pay the Consultant $2083 per
month in compensation for services rendered as President of the Corporation,
such amount to be payable in advance on the first Friday of every month.
Notwithstanding the foregoing, said compensation shall only be paid to the
extent that the Corporation has funds available from (a) earnings before
Interest, Taxes, Depreciation and Amortization, (b) paid-in capital or surplus,
and/or (c) retained earnings (collectively referred to as "Available Funds"). In
the event that Available Funds are not sufficient to make the monthly payment in
full, the amount not so paid shall continue to accrue (without interest) and be
paid from the next available funds. In the event that there does not exist
Available Funds to make payment, the Consultant may, at his option, agree to not
perform Consulting Services in any month, in which case, the compensation for
such month shall be waived.
4. Term. The term of the Consultant's engagement (the "Term") shall
commence on the date hereof and continue until the date that is two years from
the Closing Date that eNote purchases the stock in the Company from Consultant,
as such date is determined in accordance with that certain Stock Purchase
Agreement dated on or about August 6, 1999 by and among Xxxxx X. Xxxxxxxx, III,
Xxxxxxx Xxxxxxxx, the Company and xXxxx.Xxx, Inc.
5. General Provisions.
A. No Waiver. Waiver of any provision of this Agreement, in whole or
in part, in any one instance shall not constitute a waiver of any other
provision in the same instance, but each provision shall continue in full force
and effect with respect to any other then-existing or subsequent breach.
B. Notice. Any notice required or permitted under this Agreement
shall be given in writing by (A) delivery in hand, or (B) by postage prepaid,
United States first class mail or (C) by facsimile, promptly followed by postage
prepaid, United States first class mail to the parties at their respective
addressees specified above or at such other address for a party as that party
may specify by notice. Notice shall be effective upon receipt if by hand
delivery, or within three days of mailing if sent by mail.
C. Miscellaneous. This Agreement: (i) may be executed in any number
of counterparts, each of which, when executed by both parties to this Agreement
shall be deemed to be an original, and all of which counterparts together shall
constitute one and other same instrument; (ii) shall be governed by and
construed under the laws of The State of Vermont applicable to contracts made,
accepted, and performed wholly within the State, without application of
principles of conflicts of laws; (iii) may be amended, modified, or terminated,
and any right under the Agreement may be waived in whole or in part, only by a
writing signed by both parties; (iv) contains headings only for convenience,
which headings do not form part, and shall not be used in construction, of this
Agreement, and (v) shall bind and inure to the benefit of the parties and their
respective legal representatives, successors and assigns, except that no party
may delegate any of its obligations under this Agreement or assign this
Agreement, without prior written consent of the other party.
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6. Taxes. The Corporation shall not be required to withhold any
amounts for state or federal income tax or for FICA taxes from sums becoming due
to the Consultant under this Agreement. The Consultant shall be responsible for
all state and federal withholdings and FICA taxes due or to become due with
respect to the compensation paid to Consultant under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SOLUTIONET, LTD.
---------------------------------- By:
Witness ----------------------------
Duly Authorized Agent
CONSULTANT
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Witness Xxxxx X. Xxxxxxxx, III
