EXHIBIT 10.4
Consulting Agreement among ADVA, GIG and Xxxxxx X. Xxxxxx
ADVA/GIG CONSULTING AGREEMENT
ADVA/GIG are Delaware Corporations in the business of developing and marketing
software for the LINUX OS marketplace.
PREAMBLE: This is an agreement, effective as of May 1, 2001 between Xxx Xxxxxx
Associates of 0000 Xxxxxx Xxxx, Xxxxxxxxx XX 00000 (Consultant) and ADVA/GIG xx
XXX, Xxxxx 000, Xxxx Xxxx, XX (Client).
PURPOSE: Client wishes to retain the services of Consultant to advise and
consult Client in capacity as Chief Financial advisor relative to Client's
business(es), and Consultant is willing to provide such services.
1. Consultant agrees, subject to Section 7, that for a period of one (1)
year, commencing with the effective date of this Agreement, he will,
consistent with his other obligations, render to Client such financial
consulting services as Client may request relating to the field as set
forth in Exhibit A.
2. Client agrees to reimburse Consultant for such consulting services at
the monthly rates shown in Exhibit B, attached Rates. Consultant shall
invoice Client monthly for services rendered, and such invoices shall
be payable upon receipt. Invoices shall include work provided and a
brief description of the services rendered. Upon adequate
substantiation, Client will reimburse Consultant for all reasonable
travel and related expenses incurred by Consultant in connection with
any requested business travel by Client. Prior written approval (direct
e mail and fax shall suffice) by Client shall be required for all
travel outside the states of North and South Carolina in connection
with this Agreement.
3. Consultant shall act as an independent Consultant and not as an agent
or employee of Client and Consultant shall make no representation as an
agent or employee of Client except as directed by CEO and or President.
4. Consultant shall be responsible for all taxes as an independent
contractor. Consultant shall have no authority to bind Client or incur
other obligations on behalf of Client unless otherwise directed in
writing by CEO and or President.
5. Any and all improvements, inventions, discoveries, formulas, processes
or methods within the scope of the business activities of the Company,
or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act of 1933) which Consultant may conceive or make during
his consultation period with the Company shall be the sole and
exclusive property of the Company or such affiliates. Consultant
agrees, whenever requested to do so by the Company and at its expense,
to execute and sign any and all applications, assignments, or other
instruments, and to do all other things which the Company may deem
necessary or appropriate in order to apply for patent or other
protection in the United States or any foreign country for such
improvements, discoveries, formulas, processes, or methods.
6. Consultant agrees to hold all Client Proprietary Information in
confidence and to treat the Proprietary Information with at least the
same degree of care and safeguards that he takes with his own
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proprietary information. Consultant shall use Proprietary Information
only in connection with services rendered under this Agreement.
Proprietary Information shall not be deemed to include information that
(a) is in or becomes in the public domain without violation of this
Agreement by Consultant, or (b) is already in the possession of
Consultant, as evidenced by written documents, prior to the disclosure
thereof by Client, or (c) is rightfully received from a third entity
having no obligation to Client and without violation oft his Agreement
by Consultant.
7. Consultant warrants that he is under no obligation to any other entity
that in any way conflicts with this Agreement, that he is free to enter
into this Agreement, and is under no obligation to consult for others
in areas covered by this Agreement. Consultant shall not, during the
term of this Agreement, perform consulting services for others in areas
of LINUX software development and sales but shall have the right to
perform consulting services for others outside of this specialty.
8. Client or Consultant may terminate this Agreement at any time on thirty
(30) days advance written notice. Any and all equipment, computers,
services or products provided for the Consultant by the Client are to
be used solely in the commission of the Consultant's services for the
Client and remain the property of the Client. Client shall not be held
liable for any illegal use of said products or services, or use
unrelated to Clients' business, by the Consultant or any resulting
legal action.
9. The secrecy provisions of Section 5 hereof shall survive any
termination of this Agreement for a period of three (3) years after
such termination.
10. This Agreement is not assignable by either party without the consent of
the other.
Signed: /s/Xxxxxx X. Xxxxxx
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For: Xxx Xxxxxx Associates
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Date: 5/3/01
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Signed: /s/X. X. Xxxx Signed: /s/Xxxxxx X. Down
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For: ADVA For: GIG
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Date: 5/3/01 Date: 5/3/01
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EXHIBIT A
Consulting Services
It is anticipated that the services provided by the Consultant to the Client
shall encompass the following tasks and responsibilities. (This list should not
be considered inclusive):
1. Responsibilities
a. Essential Duties
i. As a financial Consultant to the CEO and President, Consultant
will coordinate the creation of business plans and help in overseeing
financial investments and expenditures.
ii. Consultant will help establish and oversee financial systems
and controls to ensure compliance for all lines of business and monitor
financial procedures to meet business objectives.
iii.Consultant will assist in the creation, implementation and
adherence to company financial policies and procedures, government
regulations, sound accounting practices (GAAP) and tax and reporting as
they relate to company financial activities.
iv. Consultant will advise and assist in the coordination of the
Corporation's outside auditing firm and corporate and SEC attorneys
relating to all financial and SEC reporting issues.
v. Consultant will advise regarding potential financial
liabilities faced by the Company on all fronts, and work with the
executive management team to mitigate these liabilities, especially as
situations arise which may influence and effect the investment
community.
b. Additional Duties
i. Assist in raising capital in private and public capital
markets including successive stages of corporate financial
development.
ii. Assist in Investor relations activities.
iii. Advise in the management of the Corporation's insurance,
financing, and investment policies and programs.
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1.2 EXHIBIT B
Compensation Rates & Rules
Consultant Fees / Expenses
1. Payments to the Consultant by the Client will be at the rate of $50.00 per
hr. US ($4,300) per month based on a minimum of 86 hours per month.
Additional hrs. at Client's request exceeding 86 hrs. per month will be
reimbursed at a rate of $75.00 per hr.
2. Consultant will provide a monthly invoice at the end of month worked
outlining efforts undertaken over this period. Invoice shall be payable
upon receipt by Client.
3. Expenses will be billed by Consultant and paid by the Client separately.
4. Monthly status briefs in "bullet point" format shall be provided to the
Client along with invoices.
5. It is agreed that compensation rates will be reviewed with Consultant in
six (6) months.
Stock Options*
25,000 option shares vested in (4) parts:
6,250 shares August 1, 2001
6,250 shares November 1, 2001
6,250 shares February 1, 2001
6,250 shares May 1, 2001
*Consultant will be included in ADVA Incentive Stock Plan.
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