Exhibit 10.4
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 21st day of July, 2004,
between Glowpoint, Inc. (the "Company") and Xxxxxxxx Consulting Group (the
"Consultant").
In consideration of the mutual promises and covenants contained herein,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Purpose. The Company hereby engages Consultant during the Term (as defined
below) to render Investor Relations services to the Company, upon the
terms and conditions as set forth herein.
2. Term and Termination. This Agreement shall be effective for a twelve-month
period commencing on the date hereof unless earlier terminated pursuant to
the following sentence (such twelve-month or shorter period resulting from
early termination is referred to herein as the "Term"). Either party may
terminate the Term with immediate effect if the other party has failed to
perform or abide by any of such other party's material obligations under
this Agreement and has failed to cure such nonperformance within 10 days
of receiving notice thereof from the first party.
3. Duties of Consultant. During the term of this Agreement, Consultant shall
provide to the Company those services outlined in Exhibit A.
Notwithstanding the foregoing, it is understood and acknowledged by the
parties that Consultant: (a) shall perform its analysis and reach its
conclusions about the Company independently, and that the Company shall
have no involvement therein; and (b) shall not render advice and/or
services to the Company in any manner, directly or indirectly, that is in
connection with the offer or sale of securities in a capital raising
transaction or that could result in market making.
4. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse Consultant for any and all reasonable
out-of-pocket expenses incurred by it in connection with services
requested by the Company, including, but not limited to, all charges for
travel, printing costs and other expenses on the Company's behalf. The
Company shall pay such expenses promptly upon the presentation of
invoices. Consultant shall not incur more than $500 in expenses without
the express consent of the Company.
5. Compensation. For services to be rendered by Consultant hereunder, the
Company shall pay Consultant on or before the 1st day of each month during
the Term, the sum of $8,500.00. In addition, Consultant shall receive from
the Company, promptly following the execution of this Agreement, options
to purchase 100,000 shares of the Company's common stock. One-fourth of
such options will vest on each of October 21, 2004, January 21, 2005,
April 21, 2005 and July 21, 2005. The options will be exercisable at any
time on or prior to July 21, 2014.
6. Glowpoint Circuit. Consultant agrees to order and have installed at its
premises a Glowpoint circuit for the duration of the Term. The Company
agrees to provide such circuit to Consultant at the discounted rate the
Company charges its other strategic partners.
7. Confidentiality. (a) Consultant acknowledges that as a consequence of its
relationship with the Company, it will be given access to confidential
information which may include the following types of information;
financial statements and related financial information with respect to the
Company and its subsidiaries (the "Confidential Financial Information"),
trade secrets, products, product development, product packaging, future
marketing materials, business plans, certain methods of operations,
procedures, improvements, systems, customer lists, supplier lists and
specifications, and other private and confidential materials concerning
the Company's business (collectively, "Confidential Information").
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(b) Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information
solely to perform its duties under this Agreement, and Consultant shall
refrain from allowing such information to be used in any way for its own
private or commercial purposes. Consultant shall also refrain from
disclosing any such Confidential Information to any third parties.
Consultant further agrees that upon termination or expiration of this
Agreement, it will return all Confidential Information and copies thereof
to the Company and will destroy all notes, reports and other materials
prepared by or for it containing Confidential Information. Consultant
understands and agrees that the Company would be irreparably harmed by
violation of this Agreement and that monetary damages may be inadequate to
compensate the Company. Accordingly, Consultant agrees that, in addition
to any other remedies available to it at law or in equity, the Company
shall be entitled to injunctive relief to enforce the terms of this
Agreement.
(c) Notwithstanding the foregoing, nothing herein shall be construed
as prohibiting Consultant from disclosing any Confidential Information (a)
which at the time of disclosure Consultant can demonstrate either was in
the public domain and generally available to the public or thereafter
becomes a part of the public domain and is generally available to the
public by publication or otherwise through no act of Consultant; (b) which
Consultant can establish was independently developed by a third party who
developed it without the use of the Confidential Information and who did
not acquire it directly or indirectly from Consultant under an obligation
of confidence; (c) which Consultant can show was received by it after the
termination of this Agreement from a third party who did not acquire it
directly or indirectly from the Company under an obligation of confidence;
or (d) to the extent that Consultant can demonstrate such disclosure is
required by law or in any legal proceeding, governmental investigation, or
other similar proceeding.
8. Governing Law; Venue; Jurisdiction. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts or choice of law
thereof. Each of the parties consents to the jurisdiction of the U.S.
District Court in the Southern District of New York in connection with any
dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on
forum non conveniens. to the bringing of any such proceeding in such
jurisdictions. Each party to this Agreement irrevocably consents to the
service of process in any such proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to such party at it
address set forth herein. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law. Each party
waives its right to a trial by jury.
9. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, if to the Company, addressed to it at 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 or if to Consultant, addressed to it at Xxxxxxxx
Consulting Group, Maitland City Plaza, 000 X. Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000, or to such address as may hereafter be designated
in writing by one party to the other. Any notice or other communication
hereunder shall be deemed given three days after deposit in the mail if
mailed by certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery, or on the
date delivered by hand or by facsimile with accurate confirmation
generated by the transmitting facsimile machine, at the address or number
designated above (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during
normal business hours where such notice is to be received).
(b) This Agreement embodies the entire Agreement and understanding between the
Company and Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior arrangements and understandings
related to the central subject matter hereof.
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(c) This Agreement has been duly authorized, executed and delivered by and on
behalf of the Company and Consultant.
(d) This Agreement and all rights, liabilities and obligations hereunder shall
be binding upon and inure to the benefit of each party's successors but
may not be assigned without the prior written approval of the other party.
(e) If any provision of this Agreement shall be held or made invalid by a
statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this
extent, the provisions of this Agreement shall be deemed to be severable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
GLOWPOINT, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Executive Vice President & CFO
XXXXXXXX CONSULTING GROUP
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
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EXHIBIT A
1. Company covered in our weekly newsletter.
2. Calls to 200 brokers on each news release. These brokers can buy small-cap
securities in particular.
3. Meetings with small-cap brokerage firms and brokers to develop support for
the company's stock and research coverage.
4. Dedicated investor line to handle call volume.
5. Strategic advice and other customary IR services.
6. Helping the company obtain appearances at small-cap brokerage conferences.
7. Meetings with micro-cap institutional investors.
8. Company featured on the Home Page of our Internet site for one week each
quarter.
9. The writing and distribution of press releases to over 275,000 opt-in
communications investors.
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