CONSULTING AGREEMENT
AGREEMENT, made this 4th day of January 2001 by and between NEXSAN
CORPORATION (the "Company") and Xx. XXXXX XXXXXXX (the "Consultant").
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with the U.S. operations and financial performance of the
Company and its affiliates, and the Consultant desires to provide such services
as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
A. CONSULTATION.
1. Consultant. The Company hereby retains the Consultant to render to
the Company and its affiliates the Services (as defined in Section B hereof),
and the Consultant hereby accepts such assignment upon the terms and conditions
hereinafter set forth.
2. Independent Relationship. The Consultant shall provide the Services
required to be rendered by him hereunder solely as an independent contractor and
nothing contained herein shall be construed as giving rise to an employment or
agency relationship, joint venture, partnership or other form of business
relationship with the Company.
3. No Authority to Obligate the Company. Without the consent of the
Board of Directors or appropriate officer of the Company, the Consultant shall
have no authority to take, nor shall he take, any action committing or
obligating the Company in any manner, and he shall not represent himself to
others as having such authority.
4. Term. The term of the Consultant's engagement hereunder shall
commence as of the date hereof and shall extend for a period of one (1) year
(the "Term"), unless the parties agree in writing to extend the Term for an
additional period. Notwithstanding the foregoing, this Agreement may be
terminated by either party as of June 30, 2001, for any or no reason, by giving
at least thirty (30) days prior written notice. Upon any termination of this
Agreement, the Company shall pay to the Consultant (i) any previously accrued
but unpaid compensation, as contemplated by Section C(1) hereof; and (ii) any
previously incurred but unpaid expenses, as contemplated by Section D hereof.
B. OBLIGATIONS OF THE CONSULTANT.
1. Services. During the term of this Agreement, Consultant will render
consulting service, advice and assistance (collectively, the "Services") to the
Company and its affiliates on business and financial related matters, and in
connection therewith the Consultant shall:
a. oversee and assist in directing the Company's operations and
financial performance in the U.S., and will provide guidance to the
Company's executives in respect thereof, including the furnishing of
written reports upon the request of the Company;
b. advise the Company with regard to compliance with regulations of
the Securities Exchange Commission (the "SEC"), and assist it with all
filings required by the SEC and in all dealings with SEC officials;
c. assist in the negotiation of contracts with suppliers and major
customers when so requested by the Company;
d. render other services to the Company, or its affiliates, as its
Board of Directors may reasonably request; and
e. report periodically to the Company's President, CFO, and the
Company's consultant, Beechtree _________, and confer regularly with
Company's Treasurer, with respect to the foregoing matters.
2. Nonexclusive Engagement; Extent of Services.
a. The parties agree that the Services contemplated by this Agreement
constitute a nonexclusive engagement and that the Consultant now renders
and may continue to render consulting services to other companies which may
or may not conduct activities similar to those of the Company.
b. The Consultant will devote to the affairs of the Company, and its
affiliates, such time and attention as may be required to render the
Services, provided that he shall not be required to devote (i) during the
first six (6) months of the Term, more than twenty five percent (25%) of
his business time and attention, and (ii) thereafter, for the remainder of
the Term, more than fifty percent (50%) of his business time and attention.
3. Confidentiality. The Consultant will not, either during his engagement
by the Company pursuant to this Agreement or at any other time thereafter,
disclose, use or make known for his or another's benefit, any confidential
information, knowledge, or data of the Company or any of its affiliates in any
way acquired or used by the Consultant during his engagement by the Company.
Confidential information, knowledge or data of the Company shall not include any
information which is or becomes generally available to the public other than as
a result of a disclosure by the Consultant.
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C. COMPENSATION.
1. Cash Retainer. The Company will pay throughout the Term, a monthly
cash retainer of (i) Four Thousand US Dollars ($4,000) during the first six (6)
months, and (ii) Eight Thousand US Dollars ($8,000) thereafter.
2. Restricted Stock. Contemporaneously with the signing of this Agreement,
the Company will grant the Consultant the right to purchase 75,000 Shares of
Common Stock of the Company, subject to its 2001 Stock Plan and upon the terms
of a Restricted Stock Purchase Agreement between the Company and the Consultant.
D. REIMBURSEMENT OF EXPENSES.
1. Out-of-Pocket Expenses. The Company shall reimburse the Consultant for
actual out-of-pocket expenses including, but not limited to, facsimile, postage,
printing, photocopying, and entertainment, incurred by the Consultant without
the prior consent of the Company and in connection with the performance by the
Consultant of the Services in amounts up to Five Hundred Dollars ($500) per
month. Prior consent of the Company is required for reimbursement of expenses in
excess of Five Hundred Dollars ($500) per month.
2. Travel and Related Expenses. The Company shall also reimburse the
Consultant for the costs of all travel and related expenses incurred by the
Consultant in connection with the performance of the Services, including,
without limitation, costs and expenses incurred with respect to travel from
California to England and New York; provided that all such costs and expenses
have been authorized, in advance, by the Company. Expenses shall be due and
payable when billed and after they have been incurred.
E. MISCELLANEOUS.
1. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the engagement of Consultant by the Company as a
consultant and supersedes and replaces any and all prior understandings,
agreements or correspondence between the parties relating to the subject matter
hereof.
2. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both the parties
hereto. No waiver of any other provisions hereof (whether or not similar) shall
be binding unless executed in writing by both the parties hereto nor shall such
waiver constitute a continuing waiver.
3. Governing Law. This Agreement has been made in and shall be interpreted
according to the laws of the State of New York without any reference to the
conflicts of laws rules thereof. The parties hereto submit to the jurisdiction
of the courts of the State of New York, and each party
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waives the right to change venue, for the purpose of any actions or proceedings
which may be required to enforce any of the provisions of this agreement.
4. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns and upon the
Consultant and the Consultant's heirs and representatives.
5. Severability. If any provision or provisions of this agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever:
a. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion
of any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
b. to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this
agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
6. Further Assurances. From and after the execution and delivery of this
Agreement, upon request of either party, the other shall do, execute,
acknowledge and deliver all such further acts, assurances and other instruments
and papers as may be required to carry out the transactions contemplated by this
agreement.
7. Headings. The headings of the paragraphs of this agreement are inserted
for convenience only and shall not be deemed to constitute part of this
agreement or to affect the construction hereof.
8. Notices. All notices or other communications required or appropriate
hereunder shall be deemed to have been given, delivered or made if in writing
(including facsimile transmission via telecopier or telegraphic communication)
telegraphed, telecopied (with answer back confirmation), actually personally
delivered, or 72 hours after placed in the U.S. mail (registered or certified,
return receipt requested, postage prepaid) and addressed to the applicable party
at the address stated bellow:
(a) If to the Company,
to it at: Nexsan Corporation
c/o Beechtree Capital, Ltd.
Xxxxx 0000
0 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn.: President
Facsimile No.: (000) 000-0000
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with a copy to: RubinBaum LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to the Consultant: Xxxxx Xxxxxxx
0 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
All such notices shall be deemed given when delivered, if personally delivered
or faxed as aforesaid, or within five business days after mailing, as aforesaid.
9. Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
NEXSAN CORPORATION
By: /s/ Xxxxxx Xxxxx
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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