CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of this 4th day of
October, 2005, by and between Cirilium Holdings, Inc., a Delaware corporation
(the "Company") and Xxxxxxx X. Xxxxxxx ("Consultant").
WHEREAS, Consultant is a party to that certain Termination and Release
Agreement pursuant to which, inter alia, Consultant resigned as an executive
officer and consultant of the Company and officer of the Company's wholly-owned
subsidiaries ("Termination Agreement").
WHEREAS, because of his experience with the Company and as a condition to
and in connection with Consultant's execution and delivery of the Termination
and Release Agreement, the Company desires to retain the Consultant to provide
certain consulting services to the Company as hereinafter set forth.
WHEREAS, the Consultant has agreed to provide certain consulting services
to the Company in accordance with the terms and conditions contained
hereinafter.
NOW THEREFORE, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Consulting Services.
(a) During the term of this Agreement, the Consultant is hereby
retained by the Company to provide consulting services to the Company, as said
services relate to compliance by the Company with its reporting and other filing
obligations under the U.S. securities laws, and such other business advisory
services as the chief executive officer or the Board of Directors of the Company
may direct. From time to time the Company shall advise the Consultant of the
nature and scope of the consulting services and the Consultant shall promptly
provide such consulting services as reasonably requested by the Company during
the term of this Agreement.
(b) Consultant shall maintain accurate written records of contacts
made pursuant to this Consulting Agreement, and agrees to give the Company
copies of such records upon request. This duty to provide such records to the
Company upon request shall survive the termination of this Consulting Agreement.
2. Term; Termination. The initial term of this Agreement shall be for two
(2) months, commencing on the date written above (the "Initial Term"). At the
option of the Company, this Agreement may be extended for an additional
two-month term (the "Extended Term"). This Agreement may be terminated at any
time by the Company, for any reason whatsoever, without prior notice. Upon
termination of this Agreement by the Company, any earned and unpaid fees will be
due and payable within ten (10) business days of such termination.
3. Compensation. As full and complete consideration for the performance of
services hereunder, the Consultant shall be entitled to receive:
(a) Cash Compensation in the amount of Ten Thousand dollars
($10,000.00) per month, payable in equal bi-weekly payments, beginning from the
date of this Agreement;
1
(b) Additional compensation in the form of Three Hundred Fifty
Thousand (350,000) shares of the Company's unregistered, restricted common stock
("Restricted Stock"), which the Company shall deliver to Consultant upon
execution of this Agreement.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants that this Agreement and the transactions contemplated
hereunder have been duly and validly authorized by all requisite corporate
action; that the Company has the full right, power and capacity to execute and
deliver this Agreement and perform its obligations hereunder; that the execution
and delivery of this Agreement by the Company and the performance by it of its
obligations pursuant to this Agreement do not constitute a breach of or a
default under any agreement or instrument to which it is a party or by which it
or any of its assets are bound; and that this Agreement, upon execution and
delivery of the same by it, will represent the valid and binding obligation of
the Company enforceable in accordance with its terms, subject only to the
effect, if any, of bankruptcy laws or similar laws relating to the insolvency of
debtors and to principles of equity. The representations and warranties set
forth herein shall survive the termination of this Agreement.
5. Representations and Warranties of the Consultant.
(a) The Consultant hereby represents and warrants to the Company
that it has the full right, power and capacity to execute and deliver this
Agreement and perform its obligations hereunder; that the execution and delivery
of this Agreement and the performance by the Consultant of its obligations
pursuant to this Agreement do not constitute a breach of or a default under any
agreement or instrument to which the Consultant is a party; and that this
Agreement, upon execution and delivery of the same by the Consultant, will
represent the valid and binding obligation of the Consultant enforceable in
accordance with its terms.
(b) The Consultant hereby acknowledges that the shares of Restricted
Stock issued pursuant to this Agreement will be restricted and have not (and
will not, upon issuance, have) been registered under the Securities Act or any
state securities laws and may be resold only if registered pursuant to the
provisions thereunder or if an exemption from registration is available. The
Consultant does not intend to dispose of all or any part of the shares of
Restricted Stock except in compliance with the provisions of the Securities Act
of 1933, as amended (the "Securities Act") and applicable state securities laws.
The Consultant hereby acknowledges and agrees that the Company may insert the
following or similar legend on the face of the certificates evidencing such
shares, if required in compliance with the Securities Act or state securities
laws:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO COUNSEL TO THE ISSUER
THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE."
6. Confidentiality. The Consultant agrees that all non-public information
pertaining to the prior, current or contemplated business of the Company
constitutes valuable and confidential assets of the Company. Such information
shall include, without limitation, information relating to customer lists,
intellectual property, patents, trademarks and trade secrets as are not
available to the public. Consultant shall hold all such information in trust and
confidence for the Company and shall not use or disclose any such information
for other than the Company's business and shall be liable for damages incurred
by the Company as a result of the use or disclosure of such information by
Consultant or his agents or shareholders for any purpose other than the
Company's business, except (i) where such information is publicly available or
later becomes publicly available other than through a breach of this Agreement,
or (ii) where such information is subsequently lawfully obtained by Consultant
from a third party or parties, or (iii) if such information is known to
Consultant prior to the execution of this Agreement, or (iv) as may be required
by law. The Consultant further acknowledges that the terms of this Agreement
shall be in perpetuity and that any threatened or actual breach by the
Consultant of the representations, warranties and covenants contained herein
would result in continuing and irreparable damage to the Company that monetary
damages would not adequately compensate either corporation for any such breach.
In the event of any actual or threatened breach, the Company shall be entitled
to any and all legal and/or equitable remedies, including preliminary and
permanent injunctive relief, and may, in addition to any or all forms of relief,
recover from the Consultant all costs and attorney's fees should it prevail in a
court of competent jurisdiction in enforcing its rights under this Agreement.
2
7. Independent Consultant Status. It is the understanding of the parties
that this Agreement creates an independent contractor agreement and not an
employment agreement. It is the intention of the parties that Consultant shall
be an independent Consultant and not an employee of the Company for all
purposes, including, but not limited to, the application of any federal or state
law relating to employment or tax liability, including without limitation, any
law requiring the withholding of income, FICA, FUTA, Medicare and any other
pay-roll taxes. Consultant shall not have the authority to bind the Company, or
hold itself out as having the authority to bind the Company, or to make any
representations or to execute any document on behalf of the Company without the
prior consent of the Chief Executive Officer of the Company. The Consultant
reserves the right to determine the manner, method and means by which the
Services shall be performed, subject to adherence to the Company's general
standards and procedures. The Consultant shall not be required to perform the
Services during a fixed hourly or daily schedule. The order and sequence of
performing the Services shall be determined by the Consultant. It is the further
understanding of the Parties that Consultant will not be eligible to participate
in any of the employee benefit plans and programs offered by the Company to its
employees only. The Consultant acknowledges that the compensation specified in
this Agreement constitutes all of the compensation to which the Consultant is
entitled for the rendition of Services to the Company, and that the Consultant
will not be entitled to vacation or sick pay or any benefits under the Company's
pension, profit sharing, health, disability, life insurance, severance, or any
other plan or program of Consultant benefits provided by the Company to its
employees.
8. Amendment or Assignment. No modification, waiver, amendment, discharge
or change of this Agreement shall be valid unless the same is evidenced by a
written instrument, executed by the party against which such modification,
waiver, amendment, discharge, or change is sought. This Agreement is not
assignable by the Consultant without the prior written consent of the Company,
which such consent may not be forthcoming.
9. Notices. All notices, demands or other communications given hereunder
shall be in writing and shall be deemed to have been duly given on the day when
delivered in person or transmitted by confirmed facsimile transmission or on the
third calendar day after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, to the addresses herein above
first mentioned or to such other address as any party hereto shall designate to
the other for such purpose in the manner herein set forth.
3
10. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
11. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
and such legal action results in a final judgment in favor of such party
("Prevailing Party"), then the party or parties against whom said final judgment
is obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred, including, but not limited to, all attorney' fees,
court costs and other expenses incurred throughout all negotiations, trials or
appeals undertaken in order to enforce the Prevailing Party's rights hereunder.
Any suit, action or proceeding with respect to this Agreement shall be brought
in the state or federal courts located in Palm Beach County, in the State of
Florida. The parties hereto hereby accept the exclusive jurisdiction and venue
of those courts for the purpose of any such suit, action or proceeding. The
parties hereto hereby irrevocably waive, to the fullest extent permitted by law,
any objection that any of them may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any judgment entered by any court in respect thereof brought in Palm Beach
County, Florida.
13. Binding Nature, No Third Party Beneficiary. The terms and provisions
of this Agreement shall be binding upon and inure to the benefit of the parties,
and their respective successors and assigns, and is made solely and specifically
for their benefit. No other person shall have any rights, interest or claims
hereunder or be entitled to any benefits under or on account of this Agreement
as a third-party beneficiary or otherwise.
14. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CIRILIUM HOLDINGS, INC. CONSULTANT
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------- -----------------------
Name: Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
Title: Acting Secretary
4
