CONSULTING AGREEMENT
Exhibit
10.1
This Consulting Agreement (“Agreement”)
is entered into as of February 23, 2010 by and between Hawk Systems, Inc., a Delaware
corporation, with offices located at 0000 XX Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx 00000 (“the Company”) and Xxxxxxx Enterprises LLC, a
Florida Limited Liability Company, with its principal place of business at 000
Xxxx Xxxxxxxxx Xxx Xxxxx 000 Xxxxxx Xxxx Xxxxxxx 00000 and or its affiliates,
successors or assigns hereinafter refereed to as (“Xxxxxxx”) who are hereinafter sometimes
collectively referred to as “the parties.”
WITNESSETH:
WHEREAS XXXXXXX provides corporate
growth development consulting services;
WHEREAS the Company desires to engage
the services of XXXXXXX in accordance with the terms and conditions set forth in
this Agreement which now consolidates and supercedes any agreement now in
effect.
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Services
XXXXXXX shall provide the following
services to the Company:
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(a)
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Provide
consulting and liaison services to the Company as requested in connection
with the establishment and implementation of a corporate development
growth plan to enable the Company to develop and expand its business both
in the private sector as well as the government sector. Such plan may also
encompass other priorities as set forth by both
parties;
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(b)
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Provide
consulting and liaison services to the Company in connection with the
implementation and completion of its corporate development plan (including
subsidiaries and affiliates), it being understood that such services
should not be construed as engaging in broker-dealer
activities;
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(c)
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Assistance
when requested by the Company with and monitoring of the Company’s
activities which may include assistance in the review and creation of
corporate communications, press releases, and presentations;
and
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(d)
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Board
participation if requested by the
Company.
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2. Compensation.
In
consideration of the services provided by XXXXXXX under this Agreement the
Company agrees to pay to XXXXXXX a monthly consulting fee of US Twenty Thousand
Dollars ($20,000) (“Consulting Fee”), which first monthly payment will be due
and payable on or before February 26, 2010. The remaining Consulting
Fee payments will be due and payable on the first day of each month beginning on
April 1, 2010.
3. Expenses
The
Company agrees to reimburse XXXXXXX for all reasonable out-of-pocket expenses
and costs incurred in connection with the performance of its services under this
Agreement (such as travel expenses, outside consultant courier, supplies, etc.).
All such expenses over $200 must be pre-approved by the Company, and will be
billed monthly and will be payable when invoiced. Upon termination or expiration
of this Agreement, any expenses and fees not reimbursed will be immediately due
and payable.
4. Indemnification
The
Company agrees to execute an indemnity agreement, acceptable to both parties,
which shall survive any termination of this Agreement. The Company represents
that it has the authority to enter into this agreement, and has obtained all
necessary consents. It further represents that there are no existing agreements
that would prohibit or prevent the terms of the agreement from being
implemented.
5. Information
(a) The
Company recognizes and confirms that in performing its duties pursuant to this
Agreement, XXXXXXX will be using and relying on data, material, and other
information (the “Information”) furnished by the Company or by its designees. In
connection with XXXXXXX’x activities on the Company’s behalf, the
Company will cooperate with XXXXXXX and will furnish XXXXXXX with all
Information concerning the Company. The Company hereby agrees and represents
that all Information (i) furnished to XXXXXXX pursuant to this Agreement and
(ii) contained in any filing by the Company with any court or governmental or
regulatory agency, commission or agency shall, at all times during the period of
this Agreement be accurate and complete in all material respects and that, if
the Information provided becomes materially inaccurate, incomplete or misleading
during the term of this Agreement, the Company shall so advise XXXXXXX in
writing. All Information that is not publicly available will be treated in
strict confidence, and will not be revealed, or used except in the performance
of XXXXXXX duties under this Agreement. The conveyance of such information will
be limited to public information with non-public information to be provided to
third parties as deemed appropriate by the Company in writing.
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(b) XXXXXXX
hereby covenants and agrees that it will (i) utilize only such written
Information and materials that have been supplied or previously approved in
writing by the Company (“Materials”), (ii) not make any representations or
warranties concerning the Company to third parties inconsistent with the
disclosures contained in the Materials, (iii) at the direction of the Company,
deliver to, and have executed by, any third parties any other notification that
the Company may require from time to time in order for Company to maintain
compliance with applicable securities laws, rules and regulations of any
applicable jurisdiction; (iv) maintain a record of each person or entity that
receives from it any information with regard to the Company, including
Materials, and will provide a copy of each such record to the Company upon
reasonable request; and (v) not use any written material prepared for
distribution, public announcement or press release without the prior review and
written approval of the Company.
6. Term
The Term
of this Agreement shall commence on the date hereof and shall end on May 31,
2010 (“Initial Period”). After the Initial Period this Agreement may be renewed
in a writing signed by both parties (“Renewed Agreement,” together with the
Initial Period, the “Term”)), whereby either party may terminate the Renewed
Agreement by the end of each quarter by giving the other party written notice of
such termination.
7. Independent
Contractor.
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(a)
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It
is expressly understood that XXXXXXX is an independent contractor and that
it is not an agent, employee, or representative of the Company or its
subsidiaries and that XXXXXXX shall make no representations to the
contrary. XXXXXXX shall not be entitled to benefits of any kind
from the Company except for the compensation agreed upon herein. XXXXXXX
acknowledges that it shall be responsible for the collection and payment
of all withholdings, contributions and payroll taxes relating to its
services.
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(b)
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XXXXXXX shall
not hold itself out as, nor shall it take any action from which others
might infer that it is, a partner of, agent of, or a joint venture of the
Company. In addition, XXXXXXX shall take no action which binds, or
purports to bind, the Company.
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(c)
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XXXXXXX
will determine the method, details, and means of performing the services
provided by it under this Agreement. Nothing in this Agreement shall be
construed to interfere with or otherwise affect the rendering of services
by XXXXXXX in accordance with its independent and professional
judgment. Notwithstanding, XXXXXXX shall interface closely with
the other officers of the Company and the Board of Directors of the
Company and follow the directions of the
Board.
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8. Confidential
Information.
XXXXXXX
agrees to keep secret and confidential, and will not (a) disclose or transfer to
any person, corporation, firm or other entity, either during the Term of this
Agreement or at any time after the termination thereof or (b) use in XXXXXXX’x
subsequent or other business or employment, without the express written
authorization of the Company, any proprietary and/or confidential information of
the Company (hereinafter referred to as “Confidential Information”). Such
Confidential Information includes, without limitation, any information, customer
lists, vendor lists, supplier lists, pricing data, software, technique, design,
process, formula, development or experimental work, work in process, business,
trade secret, innovations, inventions, discoveries, improvements, research or
test results, data, formats, marketing plans, business plans, strategies,
forecasts, unpublished financial information, budgets, projections, or any other
secret or confidential matter relating to the products, services, research and
development, customers, employees (including identifying information, salaries,
benefits, responsibilities and relative abilities), suppliers, sales, or
business affairs of the Company, as well as all information that has or could
have commercial value or other utility in the business in which the Company or
its clients are engaged or in which they contemplate engaging and which the
unauthorized disclosure could be detrimental to the interests of the Company or
its clients, whether or not such information is identified as Confidential
Information by the Company or its clients. Confidential Information does not
include, however, information which (a) is or becomes generally available to the
public other than as a result of a disclosure by the Company or its
representatives, (b) was available to XXXXXXX on a non-confidential basis prior
to its disclosure by the Company or its representatives or (c) becomes available
to XXXXXXX on a non-confidential basis from a person other than the Company or
its representatives who is not otherwise bound by a confidentiality agreement
with the Company or any of its representatives, or is not otherwise under an
obligation to the Company or any of its representatives not to transmit the
information to XXXXXXX. In the event of termination (voluntary or otherwise) of
this engagement by the Company or on demand at any time prior thereto, XXXXXXX
agrees to deliver promptly to the Company all Confidential Information of the
Company and its clients, whether prepared by XXXXXXX or otherwise coming into
its possession or control relating to any product, business, work, customer,
supplier, or other aspect of the Company. Because XXXXXXX'x services are
personal and unique and because XXXXXXX may have access to and become acquainted
with the Confidential Information of the Company, XXXXXXX agrees that the breach
by him/her of this Agreement could not reasonably or adequately be compensated
in damages in an action at law and that the Company shall be entitled to
specific performance of the terms and provisions hereof and/or temporary or
permanent injunctive relief (without the need to post any bond unless otherwise
required by applicable law), which may include but shall not be limited to
restraining XXXXXXX from rendering any services that would breach this
Agreement.
9. Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida without regard to the conflict of laws provision
thereof.
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10. Notices
All
notices and other communication hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunications. Unless otherwise instructed in writing, notices
to the Company shall be directed to it at: Hawk Systems, Inc., 000 XX Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxxxxx, Chief
Executive Officer, Fax: (000) 000-0000, with a copy to: Xxxxxxxxx Traurig, P.A.,
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, Attn: Xxxxx X.
Xxxxxxx, Esq., Fax: (000) 000-0000, and to XXXXXXX shall be directed to it at:
Xxxxxxx Enterprises LLC, 000 Xxxx Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxx
00000, Attention: Xxxxxx XxXxxxxx Xxxxxxx, Fax: (000) 000-0000, or to
such other address as any party may specify by notice given to the other party
in accordance with this section.
11. Miscellaneous
This
Agreement constitutes the entire agreement between XXXXXXX and the Company with
respect to the subject matter hereof. This Agreement may not be
amended or modified except in writing by both parties hereto. If any provision
of this Agreement shall be held or made invalid by a statute, rule, 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.
This Agreement has been drafted jointly by the parties and, in the event of any
ambiguities in the language hereof, there shall be no inference drawn in favor
of or against either party. This Agreement shall be binding upon and inure to
the benefit of XXXXXXX, the Company and their respective successors, assigns,
representatives, heirs and estates; provided, that the rights and obligations of
XXXXXXX under this Agreement shall not be assigned without the prior written
consent of the Company. Except as expressly provided herein, this
Agreement shall not confer any rights or remedies upon any person other than the
Company and XXXXXXX, and each of their respective successors and permitted
assigns, personal representatives, heirs and estates, as the case may
be. This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first written
above.
| XXXXXXX: | |||
| Xxxxxxx Enterprises, LLC | |||
| /s/ Xxxxxx Xxxxxxx | 2/24/2010 | ||
| Name: Xxxxxx XxXxxxxx Xxxxxxx | Date | ||
| Title: | |||
| THE COMPANY: | |||
| /s/ Xxxxxxx Xxxxxxx | 2/23/2010 | ||
| Name: Xxxxxxx Xxxxxxx | Date | ||
| Title: Chief Executive Officer |
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