Exhibit 99.5
Consulting Agreement with Xxxx Xxxxxxx Xxxxxxx
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (the "Agreement") is entered into and
is effective as of the 4th day of November 2004 by and between Xxxxx Biometry,
Inc. with principal offices at 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx, Xxxxxx X0X XX0
(the "Company") and Xxxx Xxxxxxx Xxxxxxx with principal offices at 0000 Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (the Consultant).
WHEREAS:
1. Consultant acknowledges and agrees that he has received and reviewed
a copy of the Company's most recent audited financial statements
together with related business plan and related documents.
2. Company seeks Consultant's assistance in connection with its
business plan and business strategy and Consultant is willing to
render all said assistance subject to the terms and conditions of
this Agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.0 DESCRIPTION OF CONSULTING SERVICES. Consultant agrees to provide the
following consulting services:
1.0.1 Review the Company's business plan, with related pro forma financial
projections, exhibits, and addenda;
1.0.2 Conduct a due diligence examination and review of records and
documents of the Company;
1.0.3 Evaluate the Company's financial projections, accounting and control
systems, and management structure; and
1.0.4 Advise the Company regarding the form and structure of management
employment contracts and incentive compensation programs.
2.0 FEE TO BE PAID CONSULTANT. In consideration for the services to be rendered
by Consultant as described in Section 1.0 of this Agreement, the Company shall
issue to Consultant the sum of one hundred thousand (100,000) shares of the
Company's Common Stock (the "Fee" or the Shares). The Shares shall be deemed to
be fully earned after the first four weeks of service under this Agreement. The
Company shall, within fourteen (14) days of the date of this Agreement, deliver
to Consultant, a stock certificate representing the Shares, at Consultants
address stated on the first page of this Agreement.
2.0.1 REGISTRATION STATEMENT. The Company shall, at its sole expense and
liability, file a registration statement with the U.S. Securities and
Exchange Commission (the Commission) to register the Shares on Form S-8
(the Registration Statement) and qualify the issuance of the Shares to
Consultant under the California Corporate Securities Law of 1968 in
connection with the issuance of the Shares to Consultant. All of the
Shares issued to Consultant shall be freely-tradable and free of any
restricted securities legend.
2.0.2 COOPERATION OF CONSULTANT. Consultant shall cooperate with the
Company and provide any information or documents reasonably needed by the
Company to prepare and file the Registration Statement. Consultant shall
not participate in the preparation of the Registration Statement or
otherwise have any responsibility for any costs or liabilities incurred by
the Company in connection with the preparation and filing of the
Registration Statement or compliance with any state or federal securities
laws, rules, or regulations thereunder. All costs and expenses incurred in
connection with the preparation and filing of the Registration Statement
are the sole responsibility of the Company.
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3.0 LIMITATION ON SCOPE OF CONSULTING SERVICES. Both the Company and Consultant
acknowledge and agree that the services rendered by Consultant under this
Agreement shall not: (i) directly or indirectly promote or maintain a market for
the Company's securities; (ii) assist the Company in raising capital; or (iii)
assist the Company in effecting a merger or acquisition.
4.0 OBLIGATIONS OF COMPANY. The Company shall cooperate with Consultant, provide
Consultant with copies of all reports, correspondence, agreements, other
documents and information requested by Consultant in a timely manner. The
parties hereto expressly agree that Consultant's due diligence inquiry and
evaluation of the Company's affairs requires that the information required by
Consultant shall be broadly construed but both parties understand that if the
Company requires any information to remain confidential, Consultant and
Consultant's agents shall, upon written request, not release or disclose any
said information without the written consent of the Company.
5.0 TERM. The term of this Agreement shall be for a period of one year but this
Agreement may be terminated by either party hereto at any time with cause upon
sixty (60) days written notice. Any termination of this Agreement shall not have
any effect on the Shares earned by Consultant or the ability of Consultant to
sell or transfer the Shares.
6.0 DUTIES OF ADVISOR RE: CONFIDENTIAL INFORMATION. In consideration of the
disclosures and transfer of Confidential Information by the Company to Advisor,
Advisor agrees to the following:
6.01 DUTY OF NON-DISCLOSURE. Advisor shall not intentionally disclose or
transfer the Confidential Information to any third party or entity without
the Company's prior consent.
6.02 DUTY OF NON-USE. Advisor shall not unreasonably use or exploit, for
any commercial, business, investment, academic or other purposes, the
Confidential Information except as expressly allowed by Section 5.01 of
this Agreement. The parties hereby deem any such use or exploitation as
detrimental to the Company.
6.03 RETURN OF CONFIDENTIAL INFORMATION. All written Confidential
Information provided to Advisor or which Advisor receives from the
Company, shall remain, at all times, the sole property of the Company and
shall be returned within thirty (30) days to the Company upon the
Company's written request.
6.04 RESPONSIBILITY FOR EMPLOYEES OF ADVISOR. The actions or negligence of
the Advisor's employees shall be deemed the actions of Advisor with
respect to the obligations of Advisor under this Agreement. This provision
shall not be construed as limiting any rights or remedies that the Company
has or may have against any such third parties.
6.05 LIMITATION OF ADVISOR'S OBLIGATIONS. Advisor's obligation under this
Agreement shall not apply to:
6.0.6.0.1 Information which, at the time of its disclosure or
transfer to Advisor, is in the public domain through no act or
failure to act by Advisor.
6.0.6.0.2 Information which Advisor had prior to any disclosure or
transfer by the Company and which was not acquired directly or
indirectly from the Company.
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6.0.6.0.3 Information which is rightly disclosed to Advisor by any
third party who has no obligation of confidentiality to the Company
or who did not acquire such information from the Company.
6.0.6.0.4 Information independently developed by Advisor prior to
disclosure or transfer of the Confidential Information to Advisor
from the Company.
7.0 MISCELLANEOUS.
7.0.1 SUCCESSORS. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors of each of
the parties to this Agreement.
7.0.2 INDEPENDENT COUNSEL. Each of the parties to this Agreement
acknowledges and agrees that it has been represented by independent
counsel of its own choice throughout all negotiations which preceded the
execution of this Agreement and the transactions referred to in this
Agreement, and each has executed this Agreement with the consent and upon
the advice of said independent counsel. Each party represents that he or
it fully understands the provisions of this Agreement, has consulted with
counsel concerning its terms and executes this Agreement of his or its own
free choice without reference to any representations, promises or
expectations not set forth herein.
7.0.3 INTEGRATION. This Agreement, after full execution, acknowledgment
and delivery, memorializes and constitutes the entire agreement and
understanding between the parties and supersedes and replaces all prior
negotiations and agreements of the parties, whether written or unwritten,
or related thereto. Each of the parties to this Agreement acknowledges
that no other party, nor any agent or attorney of any other party has made
any promises, representations, or warranty whatsoever, express or implied,
which is not expressly contained in this Agreement; and each party further
acknowledges that he or it has not executed this Agreement in reliance
upon any belief as to any fact not expressly recited herein above.
7.0.4 ATTORNEYS FEES. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the
prevailing party in such dispute, whether by legal proceedings or
otherwise, shall be reimbursed immediately for the reasonably incurred
attorneys' fees and other costs and expenses by the other parties to the
dispute.
7.0.5 INTERPRETATION. Wherever the context so requires: the singular
number shall include the plural; the plural shall include the singular;
and the masculine gender shall include the feminine and neuter genders.
7.0.6 CAPTIONS. The captions by which the sections and subsections of this
Agreement are identified are for convenience only, and shall have no
effect whatsoever upon its interpretation.
7.0.7 AMENDMENTS. No amendment to this Agreement shall be effective unless
the same shall be in writing executed by the party against whom
enforcement is sought.
7.0.8 SEVERANCE. If any provision of this Agreement is held to be illegal
or invalid by a court of competent jurisdiction, such provision shall be
deemed to be severed and deleted; and neither such provision, nor its
severance and deletion, shall affect the validity of the remaining
provisions.
7.0.9 COUNTERPARTS & CHOICE OF LAW. This Agreement may be executed in any
number of counterparts. This Agreement shall be governed by the laws of
the State of California as if this Agreement were entirely performed and
acts contemplated by this Agreement were rendered solely within the State
of California.
7.0.10 EXPENSES ASSOCIATED WITH THIS AGREEMENT. Each of the parties hereto
agrees to bear its own costs, attorneys fees and related expenses
associated with this Agreement.
7.0.11 EQUITABLE REMEDIES. In the event of any breach of this Agreement,
the provisions of this Agreement may be enforceable in a court of equity
by a decree of specific performance. Any equitable remedy shall not be
exclusive and shall be in addition to any other remedy available.
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7.0.12 ARBITRATION. Any dispute or claim arising to or in any way related
to this Agreement shall be settled by arbitration in San Diego,
California. All arbitration shall be conducted in accordance with the
rules and regulations of the American Arbitration Association ("AAA"). AAA
shall designate an arbitrator from an approved list of arbitrators
following both parties' review and deletion of those arbitrators on the
approved list having a conflict of interest with either party. Each party
shall pay its own expenses associated with such arbitration (except as set
forth in Section 7.0.4 above). A demand for arbitration shall be made
within a reasonable time after the claim, dispute or other matter has
arisen and in no event shall such demand be made after the date when
institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statutes of
limitations. The decision of the arbitrators shall be rendered within 60
days of submission of any claim or dispute, shall be in writing and mailed
to all the parties included in the arbitration. The decision of the
arbitrator shall be binding upon the parties and judgement in accordance
with that decision may be entered in any court having jurisdiction
thereof.
7.0.12 POWER TO BIND. A responsible officer of the Company has read and
understands the contents of this Agreement and is empowered and duly
authorized on behalf of the Company to execute it.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
FOR THE COMPANY:
By:/s/ Xxxxx XxXxxxx
-------------------------------------
Xxxxx XxXxxxx,
President & Chief Executive Officer
FOR CONSULTANT:
By:/s/ Xxxx Xxxxxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx Xxxxxxx
[SIGNATURE PAGE: CONSULTING SERVICES AGREEMENT]
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