CONSULTANT AGREEMENT
THIS CONSULTANT SERVICES AGREEMENT ("Agreement") is made this
June 6, 2000, to be effective the 15th day of May, 2000 ("Effective
Date"), by XPEDIAN, INC., a Florida corporation ("XPDN"), and
Xxxxxx X. Xxxxxx ("Consultant"), for consulting services as
designated by the Board of Directors of XPDN, in regards to the
license agreement ("License Agreement") by and between XPDN and
Commerce Capital Group a South Carolina Limited Liability Company
"CCG".
RECITALS:
WHEREAS the Consultant shall be engaged to provide
technological support in the areas of computer programming, systems
development, web site support, internet service provisioning on a
full T1 circuit, and connectivity as they relate to the
implementation and installation of the internet software
applications referenced in the existing License Agreement between
XPDN and CCG.
WHEREAS XPDN wishes to grant the Consultant, and Consultant
wishes to receive, as full compensation for such consulting
services to the XPDN, options to purchase 250,000 shares of the
Common Stock of XPDN (the "Option"), pursuant to the provisions set
forth herein.
NOW, THEREFORE, in consideration of the sum of twenty ($20.00)
Dollars, and other good and valuable consideration, the premises,
mutual promises, covenants, terms and conditions herein, the
receipt and sufficiency of which are hereby acknowledged by both
parties, and the parties do hereby agree as follows:
OPERATIONAL PROVISIONS
1. Services.
1.1 Duties. Consultant has been engaged by XPDN and
Consultant agrees that he will render XPDN business consulting
services as they relate to implementation of the web based
application and related interfaces with XPDN's contract with CCG.
Such services shall include providing:
Exhibit 99.1 - Pg. 1
a) Network connectivity from the Internet to (3) host
machines operating XPDN and CCG websites and mail
servers.
b) Network connectivity among (4) host machines operating
XPDN and CCG websites, mail servers, and database server.
Traffic to and from this network will be restricted by
firewall equipment with filtering rules acceptable to the
XPDN and Consultant.
c) Monitoring service for (4) host machines operating XPDN
and CCG websites, mail servers, and database server. The
monitoring service consists of software and engineering
support to provide the maximum uptime of the host
machines. Should a failure occur that prohibits network
connectivity from the Internet to any of the (4) host
machines, an engineer will respond to the problem within
30 minutes and remain on-site until the problem is
resolved.
d) Engineering time in the amount of three thousand seven
hundred sixty (3760) hours for development and
integration of the XPDN and CCG websites, mail servers,
and database server. Engineers will operate at the
direction of XPDN and CCG.
1.2 Performance. Consultant may engage such entities or
individuals to fulfill the obligations of Consultant hereto as the
Consultant in his sole discretion shall decide. Consultant agrees
that any entity or individual so engaged shall be subject to the
confidentiality provisions set in Section 11.
2. Term. Consultant shall provide the services from the Effective
Date until May 15, 2002 unless XPDN elects the Double Up provision
described below.
3. Compensation.
3.1 Grant of Shares. XPDN hereby grants to the
Consultant an Option for 250,000 shares of "Common Stock" of
Xpedian, Inc. as listed on the NASDAQ OTC-BB symbol "XPDN" and the
receipt of such Options shall constitute full compensation of
Consultant for the services rendered pursuant to this Agreement.
The Options for the Common Stock in XPDN may be exercised at the
price of .0001 per share. The Options will be made available to the
Consultant in units 50,000 shares which may be exercised after May
15, 2000. The Options granted pursuant to this Agreement will
Exhibit 99.1 - Pg. 2
expire the later of one (1) year after the completion of the
contract period, or May 15, 2005.
3.2 Additional Compensation. Upon notification of
Consultant by XPDN to "Double-Up" as referenced in Section 4
herein, XPDN shall increase Option amount by an additional 250,000
shares of Common Stock in XPDN. The term of the engagement shall be
further extended for an additional two (2) years.
3.3 Reimbursement of Business Expenses. XPDN shall
reimburse Consultant for expenses incurred by Consultant as may be
approved from time to time by XPDN or CCG. Consultant shall provide
receipts or other reasonable documentation for such reimbursements.
Any expenses of Consultant that are not pre-approved shall not be
reimbursed.
3.4 Registration or Exemption. Notwithstanding anything
to the contrary contained herein, shares of Common Stock may not be
issued upon exercise of any Option, unless the shares are
registered pursuant to the Securities Act of 1933, as amended
("Act"), or an exemption from such registration is available. XPDN
shall be responsible for such registration, including any costs
thereto upon Consultant's exercise of his Options hereto.
3.5 Independent Contractor Relationship Between Parties.
The parties acknowledge that Consultant is an independent
contractor and not a joint venturer, partner, employee, or agent of
XPDN or CCG by virtue of this Agreement. XPDN or CCG have no
control over the manner or method by which Consultant meets his
obligations under this Agreement; provided, that Consultant's
services shall be performed in a competent and efficient manner.
XPDN or CCG will not withhold for Consultant or CONSULTANT's
personnel any sums for income tax, Social Security, unemployment or
regular insurance, or any other employee withholding nor will XPDN
or CCG offer Consultant or Consultant's personnel any employee
benefits including, without limitation, pension benefits, worker's
compensation coverage, and death and disability insurance.
4. Double-Up. XPDN may wish to increase the time the consultant
provides (a) web server host services, or (b) the number of
engineering hours available for development and integration. XPDN
shall provide notice to the consultant of its desire to "double-up"
its service request by issuing to the Consultant an additional
option to purchase 250,000 shares of the Common Stock of XPDN.
This additional option will have the same terms and conditions as
identified in Paragraph 2, "Share Delivery" above. Upon acceptance
Exhibit 99.1 - Pg. 3
by the Consultant of XPDN's request for double-up, XPDN shall issue
the additional Options and Consultant will provide XPDN with
services until May 15, 2004 and/or an additional 3760 hours of
engineering time.
5. ASN Registration. As part of the consideration hereof,
Consultant agrees that he will make application for One (1) Class
C Block from ARIN, and that such registration shall be assigned to
and be reserved for the exclusive benefit of CCG.
6. Negation Of Warranty. XPDN SHALL BE SOLELY RESPONSIBLE FOR
THE SELECTION, INSTALLATION, USE, EFFICIENCY AND SUITABILITY OF
SOFTWARE SELECTED AND INSTALLED PURSUANT TO THIS AGREEMENT AND ITS
LICENSE AGREEMENT WITH CCG. CONSULTANT MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR ANY
SOFTWARE SELECTED OR INSTALLED PURSUANT TO THIS AGREEMENT OR THE
LICENSE AGREEMENT AND SHALL HAVE NO LIABILITY THEREFOR. WITHOUT
LIMITING THE FOREGOING CONSULTANT MAKES NO WARRANTY THAT THE
SERVICES TO BE PROVIDED BY THE CONSULTANT SHALL ACHIEVE THE DESIRED
RESULTS OF XPDN. OR CCG.
7. Negation of Proprietary Rights Indemnity. CONSULTANT SHALL
HAVE NO LIABILITY TO XPDN OR CCG FOR THE INFRINGEMENT OF ANY
PROPRIETARY RIGHTS BY ANY SOFTWARE INSTALLED OR CREATED PURSUANT TO
THE TERMS OF THIS AGREEMENT OR THE LICENSE AGREEMENT.
8. Damages. In no event shall Consultant be liable for loss
profits, indirect, incidental, special, consequential, or other
similar damages arising or resulting from the performance of this
Agreement.
9. XPDN's Rights. The existence of the shares and/or this Plan
shall not affect in any way the rights of XPDN to conduct its
normal or any legal business of XPDN.
10. Amendments. This Agreement may not be amended unless by the
written consent of the Board of XPDN and Consultant.
11. Good Faith and Fair Dealing. The parties hereto agree they
will use their best efforts to cooperate with each party and shall
use every reasonable precaution to ensure that no material facts,
representations or promises are made without reasonable ability of
any party to comply with such. Consultant shall at all times use
every precaution to ensure that a high level of integrity and
security is maintained in carrying out his duties in connection
Exhibit 99.1 - Pg. 4
herewith, with the understanding that Consultant and XPDN may be
liable to CCG for unwarranted disclosure or loss.
12. Confidentiality. CCG has agreed to make certain "Confidential
Information" available to XPDN's Consultant so as to enable him to
perform his services hereunder. CCG shall provide to Consultant,
his agents and assigns, access to programmers, software, code,
resources and programming theory, etc., as necessary to fulfill
such requirements. Consultant agrees that he shall treat such
information as confidential. Any property or information created
hereto, in its entirety, including any derivatives thereof, shall
be considered the intellectual property of CCG and/or its
licensors, and such shall remain the sole and absolute work
product, property and intellectual property of CCG. In
consideration of the requirements hereto Consultant agrees to
execute a "Confidentiality Agreement" between Consultant and CCG
attached hereto as Exhibit A.
13. Governing Law. This Agreement shall be governed entirely by
the laws of the State of North Carolina. The sole venue for any
action arising hereunder shall be Mecklenburg County, North
Carolina. Consultant hereby consents to and waives jurisdiction in
any other forum.
14. Binding Effect. This Agreement shall be binding upon and for
the benefit of the parties hereto and their respective heirs,
permitted successors, assigns and/or delegates.
15. Captions. The captions herein are for convenience and shall
not control the interpretation of this Agreement.
16. Cooperation. The parties agree to execute such reasonable
necessary documents in order to carry out the intent and purpose of
this Agreement as set forth herein.
17. Gender and Number. Unless the context otherwise requires,
references in this Agreement in any gender shall be construed to
include all other genders, references in the singular shall be
construed to include the plural, and references in the plural shall
be construed to include the singular.
18. Severability. In the event anyone or more of the provisions
of this Agreement shall be deemed unenforceable by any court of
competent jurisdiction for any reason whatsoever, this Agreement
shall be construed as if such unenforceable provision was never
contained herein.
Exhibit 99.1 - Pg. 5
19. Entire Agreement. This Agreement supersedes, circumvents and
replaces any and all other agreements that may have been reached,
and it shall replace such other agreements whether written or oral,
in their entirety, except as otherwise provided herein.
20. Multiple Counterparts. This Agreement may be made and
executed in multiple counterparts each being considered an
Original, the validity of which may not be contested.
21. Assignment. This Agreement may be assigned by either party,
by written waiver of the non-assigning party.
22. Costs of Enforcement. In connection with any litigation out
of this Agreement, the prevailing party shall be entitled to
recover all costs incurred, including reasonable attorneys' fees,
for all trial and appellate levels.
23. Arbitration. It is mutually agreed that any controversy,
dispute or claim arising out of or relating to this Agreement, the
interpretation thereof, or the breach thereof, shall be settled by
arbitration in accordance with the North Carolina Arbitration Code.
The controversy or claim shall be submitted to a single arbitrator
(who must be a certified public accountant licensed in North
Carolina) mutually agreed upon by the parties within thirty days of
notice of an intent to arbitrate any matter hereunder. If the
parties cannot agree upon an arbitrator within such thirty day
period such an arbitrator shall be selected in accordance with the
North Carolina Arbitration Code through a court which has a situs
in Mecklenburg, North Carolina. The arbitration of such dispute
will be held in Mecklenburg, North Carolina within thirty days
after completion of discovery. The award of the arbitrator will be
final and binding on all parties to the arbitration and judgment
may be entered upon it in accordance with law in any court of
competent jurisdiction. In the event of arbitration the parties
hereto specifically agree that discovery shall be allowed in the
form of written interrogatories, depositions of witnesses,
production, inspection and copying of documents to the same extent
as is provided under the North Carolina Rules of Civil Procedure.
Provided, however, the time for responding to requests for written
interrogatories, production and inspection and copying of documents
shall be reduced to ten days. Any disagreements between the parties
to the dispute as to the scope and extent of and compliance with
the discovery will be referred to the arbitrator and his
determination shall be final. The parties further agree that such
discovery procedures shall not be extended beyond two months from
the selection of the arbitrator; provided, however, that for good
cause, the arbitrator shall be permitted in his discretion to
extend said time for discovery. In the event of any arbitration
between parties hereto to enforce any of the provisions of this
Exhibit 99.1 - Pg. 6
Agreement or any right of either party hereunder (including
appellate proceedings), the unsuccessful party to such proceeding
agrees to pay to the successful party all costs and expenses,
including all reasonable attorneys' fees, court costs and all other
costs and expenses incurred therein by the successful party, all of
which shall be included in and as a part of the arbitration award
and/or judgment rendered upon such award. The parties hereby
expressly confer upon the arbitrator the jurisdiction and authority
to determine the issues of entitlement to attorneys' fees and costs
(in accordance with the guidelines for costs set forth in the North
Carolina Rules of Civil Procedure) and the amount to be awarded
therefor, based upon prevailing party status. Thus, after having
determined entitlement based upon who is the prevailing party
(pursuant to applicable principles of law in the regard), the
arbitrator shall determine the amount of attorneys' fees to be
awarded to the prevailing party. Evidence of such attorneys' fees
and costs will be submitted to the arbitrator in accordance with
the following procedure:
23.1 Within seven days after the announcement by the
arbitrator of the prevailing party, counsel for the prevailing
party shall file with the arbitrator (and simultaneously serve upon
opposing counsel) an affidavit of actual attorney's fees, setting
forth the total number of attorney and paralegal hours for which
recovery is sought, the hourly rates applicable thereto, and a
separate affidavit of costs. The fee affidavit shall authenticate
copies of all billing statements submitted by the attorney to the
client, together with any computer printouts or other backup
material from which such billing statements were generated, copies
of all of which shall be attached to such affidavits or made
available for review and copying. There shall be no need to submit
expert testimony (either live or in the form of affidavits) to
substantiate the amount of fees or costs sought.
23.2 Within seven days after the submission of such
attorney fee affidavit to the arbitrator, the non-prevailing party
shall have the right to submit to the arbitrator a written
challenge questioning any of the attorneys' fees sought to be
recovered by the prevailing party.
23.3 Either party may within seven days after the
submission of such written challenge request a hearing before the
arbitrator for the purpose of oral argument.
23.4 Based upon the information so submitted, the
arbitrator shall award attorney's fees and costs in favor of the
Exhibit 99.1 - Pg. 7
prevailing party in an amount determined by the arbitrator to be
reasonable under all of the facts and circumstances.
24. Impossibility of Performance. The Consultant shall not be
responsible or liable for any damages to XPDN or CCG for failing to
provide the services hereto if the omission is due to a labor
dispute, strike, war, riot, insurrection, civil commotion, fire,
flood, accident, storm, or any act of God or any cause beyond the
Consultant's control.
NOW WHEREAS, in consideration of the foregoing, the parties
having read, and understanding the same, or having had the
opportunity to seek advice on same, the parties do hereby sign, and
affix their seals and agree to be bound by the terms, conditions
and provisions hereof, on this the day same bears date.
Xpedian, Inc. Consultant
By:__/s/Xxxx X. Chapman______ By:____/s/Xxxxxx X. Dunkin______
Xxxx X. Xxxxxxx, President, Xxxxxx X. Xxxxxx, Consultant
Xpedian, Inc.
Exhibit 99.1 - Pg. 8
