EXHIBIT 10.16
GUARDIAN TECHNOLOGIES, INC.
CONSULTANT AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), is made and entered into
effective as of JULY 1, 2003, by and between GUARDIAN TECHNOLOGIES
INTERNATIONAL, INC., a Delaware corporation (the "CORPORATION") and Xxxxx Xxxxx
Consulting, Inc. (the "CONSULTANT").
WITNESSETH
WHEREAS, the Corporation wishes to utilize the Consultant and the
Consultant wishes to accept such consultancy on the terms and conditions set
forth below;
NOW THEREFORE, in consideration of the promises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS
1.1. The following words and terms shall have the meanings set forth
below for the purposes of this Agreement:
1.1.1 AFFILIATES. "Affiliates" of the Corporation, or a person
"affiliated" with the Corporation, shall mean any persons or entities which,
directly or indirectly, through one or more intermediaries, controls or are
controlled by or are under common control with, the persons or entities
specified.
1.1.2 CONSULTING RATE. "Consulting Rate" shall have the
meaning set forth in SECTION 3.1 hereof.
1.1.3 CAUSE. Termination of the Consultant's consultancy for
"Cause" shall mean termination because the Corporation determines in its sole
discretion that the Consultant has: (a) engaged in conduct which, when proven,
would constitute a crime involving breach of professional ethics or moral
turpitude or a felony of any type; or (b) engaged in conduct which injures the
business or reputation of the Corporation, or which compromises the Consultant's
ability to perform the Consultant's job duties; (c) failed to perform duties
assigned in accordance with this Agreement or to follow reasonable policies of
the Corporation; (d) engaged in negligence, incompetence or willful misconduct
in the performance of the Consultant's duties; or (e) breached this Agreement;
provided that in the case of subparagraphs (b), (c) or (e), the Corporation
shall have given written notice to Consultant setting forth in reasonable detail
the conduct, failure or breach and giving the Consultant thirty (30) days in
which to correct any such conduct, failure or breach.
1.1.4 DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if the Consultant's consultancy is terminated by reason of Consultant's
death, the date of Consultant's death; (ii) if the Consultant's consultancy is
terminated for Cause or Disability, the date specified in the Notice of
Termination, and (iii) if the Consultant's consultancy is terminated for any
other reason, the date on which a Notice of Termination is given or as specified
in such Notice of Termination.
1.1.6 DISABILITY. Termination by the Corporation of the
Consultant's consultancy based on "Disability" shall mean termination because
the Consultant is, in the reasonable opinion of the Corporation as confirmed by
reasonable medical advice, unable to perform the essential functions of the
Consultant's position with or without accommodation due to a disability (as such
term is defined in the Americans with Disabilities Act) for 90 consecutive days
or for 120 days in the aggregate during any 12-month period.
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1.1.7 NOTICE OF TERMINATION. A "Notice of Termination" shall
mean a written, dated notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Consultant's consultancy under the provision so indicated, (iii) specifies a
Date of Termination, which shall be not less than 15 days nor more than 90 days
after such Notice of Termination is given, except in the case of the
Corporation's termination of Consultant's consultancy for Cause or Disability,
for which the Date of Termination may be the date of the notice; and (iv) is
given in the manner specified in SECTION 9.2; PROVIDED THAT NO NOTICE OF
TERMINATION SHALL BE REQUIRED IN THE EVENT THIS AGREEMENT IS TERMINATED BY
REASON OF CONSULTANT'S DEATH.
1.1.8 SUBSIDIARY. "Subsidiary" shall mean any subsidiary of
the Corporation.
2. CONSULTANCY
2.1. AGREEMENT AND TERM. The Corporation hereby retains the Consultant,
and the Consultant hereby accepts said consultancy and agrees to render such
services to the Corporation, on the terms and conditions set forth in this
Agreement. The term of this Agreement shall commence on July 1, 2003, and shall
continue from that date for one (1) year unless terminated prior thereto by
either the Corporation or the Consultant as provided herein, and thereafter
shall automatically renew for successive one-year terms unless terminated prior
thereto by either the Corporation or the Consultant as provided herein. If
either the Corporation or the Consultant does not wish to renew this Agreement
when it expires at the end of the initial or any renewal hereof as provided
herein or if either the Corporation or the Consultant wishes to renew this
Agreement on different terms than those contained herein, the Corporation or the
Consultant shall give written notice in accordance with SECTION 9.2 of such
intent to the other party at least 30 days prior to the expiration date. In the
absence of such notice, this Agreement shall be automatically renewed on the
same terms and conditions contained herein for a term of one year from the date
of expiration. The parties expressly agree that designation of a term and
renewal provisions in this Agreement does not in any way limit the right of the
parties to terminate this Agreement at any time as provided herein. Reference
herein to the term of this Agreement shall refer both to the initial term and
any successive term, as the context requires.
2.2. DUTIES. During the term of this Agreement, the Consultant shall
devote the Consultant's full time, attention and energies and to use the
Consultant's best efforts to further the interests of the Corporation and to
perform such services for the Corporation as is consistent with the Consultant's
position, Article III of the Corporation's By-Laws and as directed, from time to
time, by the Corporation, including, but not limited to, by the Board of
Directors of the Corporation. The Consultant's initial responsibility will be to
penetrate the U. S. Government Agency's in a Sales capacity within the United
States.
3. COMPENSATION AND BENEFITS
3.1. CONSULTANT COMMISSION RATE. For services rendered hereunder by the
Consultant, the Corporation shall compensate and pay Consultant a commission of
8% of the net revenues the consultant has directly sold, ("Consultant Rate")
payable when payment has been received by the Company from the client, or in
such other manner or on such days as the Corporation may prescribe for the
payment of fees to Consultants of the Corporation. The Corporation agrees to
review Consultant's rate annually while this Agreement is in effect and may
adjust the Consultant's rate, as it deems appropriate in its sole discretion.
3.2 COMMISSIONS AND BONUSES.
3.2.1 COMMISSIONS. The Consultant shall be paid a commission
based upon sales of the Corporation's products or services calculated and paid
in accordance with the commission schedule set forth in Schedule 1 attached
hereto. The amount of any such commissions paid during any fiscal year of the
Corporation shall be in addition to the amount of Consultant's Consultant Rate.
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3.3. WITHHOLDING. The Consultant shall be responsible for the
withholding of such amounts, if any, relating to tax and other deductions
pursuant to any applicable law or regulation.
3.4. BENEFITS.
3.4.1 PERSONNEL POLICIES. Except as otherwise provided herein,
Consultant's consultancy shall be subject to the personnel policies which apply
generally to Consultants at the same level as the Consultant, and any code or
codes of ethics adopted by the Corporation or its Affiliates from time to time,
as the same may be interpreted, adopted, revised or deleted from time to time by
the Corporation in its sole discretion, during the term of this Agreement.
3.5 STOCK OPTIONS. The Corporation (or the surviving corporation of a
Business Combination that complies with Section 1.1.4(c), above) will use its
best efforts to develop and adopt a Stock Option Plan for all Consultants.
Consultant shall be entitled to participate in any such Stock Option Plan and to
receive grants of stock options or other awards thereunder as may be authorized
and approved by the Board of Directors of the Corporation (or any compensation
or similar committee thereof). All of such stock options or other awards granted
or issued to Consultant shall automatically and immediately vest upon a Change
in Control of the Corporation (or the surviving corporation of a Business
Combination that complies with Section 1.1.4(c), above).
4. EXPENSES
4.1. EXPENSES. The Corporation shall reimburse Consultant or otherwise
provide for or pay for all reasonable expenses incurred by Consultant in
furtherance of, or in connection with, the business of the Corporation,
including, but not limited to, traveling expenses, communication expenses and
all reasonable entertainment expenses (whether incurred at the Consultant's
residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the policies of the
Corporation and/or the Board from time to time.
5. TERMINATION
5.1. TERMINATION DUE TO DEATH. This Agreement shall automatically
terminate upon the death of Consultant. If the Consultant's consultancy is
terminated by reason of the Consultant's death, the Corporation shall have no
further obligation to pay compensation to the Consultant effective as of the
date of such death. The entitlement of any beneficiary of the Consultant to
benefits under any benefit plan shall be determined in accordance with the
provisions of such plan.
5.2. TERMINATION DUE TO DISABILITY. This Agreement may be terminated by
the Corporation upon the Disability of the Consultant. If the Consultant is
terminated due to Disability, the Corporation shall have no further obligation
to pay compensation to the Consultant effective as of the Date of Termination,
consistent with the provisions of SECTION 1.1. The entitlement of the Consultant
to benefits under a plan described in SECTION 3.4.2 upon such termination shall
be determined in accordance with the provisions of such plan.
5.3. TERMINATION FOR CAUSE. This Agreement may be terminated by the
Corporation for Cause. Upon the termination of the Consultant for Cause, the
Corporation shall have no further obligation to pay any amounts to the
Consultant. The entitlement of the Consultant to benefits under a plan described
in SECTION 3.4.2 upon such termination shall be determined in accordance with
the provisions of such plan.
5.4. TERMINATION BY THE CORPORATION OTHER THAN FOR DEATH, DISABILITY OR
CAUSE. This Agreement may be terminated by the Corporation for any reason and at
any time; provided that if this Agreement is terminated by the Corporation for
reasons other than death, Disability or Cause and other than as provided by
SECTION 5.7, then the Corporation shall pay to the Consultant, in equal monthly
installments (or as a lump sum based upon the present value of the future
payments using the Corporation's incremental borrowing rate), the Base Salary
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for one (1) year following such termination. Thereafter, the Corporation's
obligation to pay compensation of any kind pursuant to this Agreement shall
expire. During such one-year period, as the case may be, the Corporation shall
not be obligated to pay any additional amounts to the Consultant pursuant to
this Agreement, except as described in Section 3.2.1. The entitlement of the
Consultant to benefits under a plan described in SECTION 3.4.2 upon such
termination shall be determined in accordance with the provisions of such plan.
If this Agreement is terminated by the Corporation for reasons other than death,
Disability or Cause and other than as provided by SECTION 5.7, then all of the
stock options, rights or awards issued or granted to Consultant pursuant to any
incentive or stock option plan of the Corporation shall automatically and
immediately vest and become exercisable in full.
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5.5. TERMINATION BY CONSULTANT. The Consultant may terminate this
Agreement at any time by giving 30 days' Notice of Termination to the
Corporation. At the option of the Corporation, up to 30 days' Base Salary may be
given to the Consultant in lieu of requiring the Consultant to work any or all
of the 30 days following the Consultant's Notice of Termination. Provided,
however, that in the event the Consultant fails to give at least 30 days'
advance written notice of termination of this Agreement, the Consultant's
resignation shall be deemed effective, at the option of the Corporation, on any
day designated by the Corporation between the day notice is given and the date
given by the Consultant as the Consultant's last day of consultancy, and the
Consultant shall not be entitled to any notice pay. In the event the Consultant
terminates this Agreement pursuant to this SECTION 5.5, the Consultant shall not
be entitled to severance pay of any kind, and the entitlement of the Consultant
to benefits under a plan described in SECTION 3.4.2 shall be determined in
accordance with the provisions of such plan.
5.6. NOTICE OF TERMINATION. Any purported termination of the
Consultant's consultancy by the Corporation for any reason other than the
Consultant's death, including, but not limited to, for Disability or Cause, or
by the Consultant for any reason, shall be communicated by a written Notice of
Termination to the other party hereto.
5.7. TERMINATION BY MUTUAL CONSENT. Notwithstanding any of the
foregoing provisions of this SECTION 5, if at any time during the course of this
Agreement the parties by mutual consent decide to terminate this Agreement, they
shall do so by separate agreement setting forth the terms and conditions of such
termination.
5.8. COOPERATION WITH CORPORATION AFTER TERMINATION OF CONSULTANCY.
Following termination of the Consultant's consultancy for any reason, the
Consultant shall reasonably cooperate with the Corporation in all reasonably
matters relating to the winding up of the Consultant's pending work on behalf of
the Corporation, including, but not limited to, any litigation in which the
Corporation is involved, and the orderly transfer of any such pending work to
other Consultants of the Corporation as may be designated by the Corporation.
The Corporation agrees to reimburse the Consultant for any reasonable
out-of-pocket expenses the Consultant incurs in providing such cooperation at
the request of the Corporation, subject to reasonable documentation and to pay
the Consultant a pro rata portion of the Consultant Rate for such time.
5.9. MITIGATION. The Consultant shall not be required to mitigate the
amount of any benefits hereunder by seeking other consultancy or otherwise, nor
shall the amount of any such benefits be reduced by any compensation earned by
the Consultant as a result of consultancy by another employer.
5.10. WITHHOLDING. The Consultant shall be responsible for the
withholding of such amounts, if any, relating to tax and other deductions
pursuant to any applicable law or regulation..
6. NON-COMPETITION, CONFIDENTIALITY, PROPRIETARY RIGHTS AND
NON-SOLICITATION AGREEMENT
6.1. The parties hereto have entered into a Non-Competition,
Confidentiality, Proprietary Rights and Non-Solicitation Agreement dated the
date hereof. This agreement is attached hereto as EXHIBIT A. The provisions of
the Non-Competition, Confidentiality, Proprietary Rights and Non-Solicitation
Agreement are intended by the parties to survive and do survive termination or
expiration of this Agreement.
7. CONSULTANT'S REPRESENTATIONS AND WARRANTIES
7.1. NO CONFLICT OF INTEREST. The Consultant represents and warrants to
the Corporation that the Consultant is not, to the best of the Consultant's
knowledge and belief, involved in any situation that might create, or appear to
create, a conflict of interest with the Consultant's loyalty to or duties for
the Corporation.
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7.2. NOTIFICATION OF MATERIALS OR DOCUMENTS FROM OTHER PERSONS OR
ENTITIES. The Consultant further represents and warrants to the Corporation that
the Consultant has not brought and will not bring to the Corporation or use in
the performance of the Consultant's responsibilities at the Corporation any
information, materials or documents of another person or entity that are not
generally available to the public, unless the Consultant has obtained express
written authorization from the other person or entity for their possession and
use.
7.3. PRE-CONSULTANCY OBLIGATIONS. The Consultant understands that, as
part of the Consultant's consultancy with the Corporation, the Consultant is not
to breach any obligation of confidentiality, proprietary rights or
non-competition that the Consultant has to other persons or entities, and the
Consultant agrees to honor all such obligations to such other person or entity
during the Consultant's consultancy with the Corporation or otherwise in dealing
with the Corporation. The Consultant warrants that the Consultant is subject to
no consultancy agreement or restrictive covenant preventing full performance of
the Consultant's duties under this Agreement.
7.4. INDEMNIFICATION FOR BREACH. In addition to other remedies that
either party might have for breach of this Agreement, each party agrees to
indemnify and hold the other harmless from any breach of the provisions of this
SECTION 7.
8. ARBITRATION
8.1. EXCLUSIVE REMEDY. The parties recognize that litigation in federal
or state courts or before federal or state administrative agencies of disputes
arising out of the Consultant's consultancy with the Corporation or out of this
Agreement, with the exception of SECTION 6, may not be in the best interests of
either the Consultant or the Corporation, and may result in unnecessary costs,
delays, complexities, and uncertainty. The parties agree that any dispute
between the parties arising out of or relating to the Consultant's consultancy,
or to the negotiation, execution, performance or termination of this Agreement
or the Consultant's consultancy, including, but not limited to, any Claim
arising out of this Agreement, Claims under Title VII of the Civil Rights Act of
1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in
Consultancy Act of 1967, the Americans With Disabilities Act of 1990, Section
1981 of the Civil Rights Act of 1966, as amended, the Family Medical Leave Act,
the Consultant Retirement Income Security Act, and any similar federal, state or
local law, statute, regulation, or any common law doctrine, whether that dispute
arises during or after consultancy with the exception of any dispute arising out
of or related to SECTION 6 and SECTION 8, shall be resolved by arbitration in
the Washington, D.C. metropolitan area, in accordance with the National
Consultancy Arbitration Rules of the American Arbitration Association, as
modified by the provisions of this SECTION 8. The parties each further agree
that the arbitration provisions of this Agreement shall provide each party with
its exclusive remedy, and each party expressly waives any right it might have to
seek redress in any other forum, except as otherwise expressly provided in this
Agreement. By election of arbitration as the means for final settlement of all
claims, the parties hereby waive their respective rights to, and agree not to,
xxx each other in any action in a Federal, State or local court with respect to
such claims, but may seek to enforce in court an arbitration award rendered
pursuant to this Agreement.
8.2. NOTICE AND SELECTION OF ARBITRATOR. Within 30 days after the
occurrence of an event giving rise to a dispute subject to this provision, the
aggrieved party shall provide the other party with a detailed written statement
of all facts pertaining to the dispute and shall permit the other party 30 days
within which to investigate and consider the facts and to resolve the matter
informally. Thereafter, an aggrieved party who wishes to proceed to arbitration
shall have an additional 90 days within which to so notify the other party in
writing. This notice shall include a clear, concise statement of the facts, the
issues to be resolved by the arbitrator and the desired remedy. Within 10 days
after delivery of a written notice requesting arbitration, the Corporation will
contact the Consultant, or the Consultant's designated representative, to select
an arbitrator. If the parties cannot agree on an arbitrator, they shall select
an arbitrator from a list provided by the American Arbitration Association in
accordance with its rules.
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8.3. WITNESSES AND DOCUMENTS. Fourteen days prior to the arbitration
hearing, the parties shall exchange a list of witnesses to be called and a list
of the documents they intend to introduce into evidence at the hearing. Upon
request, the Corporation will supply to the Consultant a copy of the
Consultant's personnel file, including, but not limited to, any internal,
non-privileged memoranda, which may be relevant to the dispute. All such files
and documents will be maintained in a confidential manner by the Consultant,
shall be used only for preparation of the arbitration case, and shall be
returned to the Corporation at the close of the hearing.
8.4. ARBITRATION PROCEDURE. In the arbitration proceeding, each party
shall be entitled to retain its own counsel, to present evidence and
cross-examine witnesses, to purchase a stenographic record of the proceedings,
and to submit post-hearing briefs. The opinion and award of the arbitrator shall
be requested by the parties within 45 days of the submission of the post-hearing
briefs, which shall be due 30 days from the close of the arbitration.
8.5. THE CONSULTANT'S REMEDIES. If the arbitrator finds that the
Consultant was terminated in violation of law or this Agreement, the parties
agree that the arbitrator acting hereunder shall be empowered to provide the
Consultant with equitable and/or legal remedies, including, but not limited to,
compensatory damages and back pay. "Back pay" shall include all forms of
compensation payable to the Consultant by the Corporation, the cost of all
fringe benefits, and prejudgment interest at the rate of 10% per annum on such
claims.
8.6. ARBITRATOR'S AUTHORITY. In reaching the Consultant's decision, the
arbitrator shall have no authority to add to, detract from, or otherwise modify
any provision of this Agreement. The arbitrator shall submit with the award a
written opinion, which shall include findings of fact and conclusions of law.
Judgment upon the award rendered by the arbitrator may be entered in any court
having competent jurisdiction.
8.7. EFFECT OF ARBITRATOR'S DECISION: ARBITRATOR'S FEES. The decision
of the arbitrator shall be final and binding between the parties as to all
claims, which were or could have been raised in connection with the dispute, to
the full extent permitted by law. In all cases in which applicable federal law
precludes a waiver of judicial remedies, the parties agree that the decision of
the arbitrator shall be a condition precedent to the institution or maintenance
of any legal, equitable, administrative, or other formal proceeding by the
Consultant in connection with the dispute, and that the decision and opinion of
the arbitrator may be presented in any other forum on the merits of the dispute.
The arbitrator's fees and expenses and all administrative fees and expenses
associated with the filing of the arbitration (the "FEES") shall be paid the
Corporation, provided however, that at the Consultant's option, the Consultant
may pay up to 50% of the Fees.
8.8. INDEMNIFICATION. In the event that either party breaches this
arbitration agreement and attempts to resolve in court claims covered by this
agreement, the prevailing party shall be entitled to recover from the other
party all of its legal costs and attorney's fees incurred to defend such action
in court and to enforce the provisions of the arbitration agreement or of this
Agreement.
8.9. CONTINUING NATURE OF AGREEMENT TO ARBITRATE. The parties
acknowledge and agree that their obligations under this arbitration agreement
survive the termination of this Agreement and continue after the termination of
the consultancy relationship between the Consultant and the Corporation.
9. GENERAL PROVISIONS
9.1. ASSIGNMENT. The Corporation may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation
or other entity with or into which the Corporation may hereafter merge or
consolidate or to which the Corporation may transfer all or substantially all of
its assets, if in any such case said corporation or other entity shall by
operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Agreement or its rights and obligations
hereunder. The Consultant may not assign or transfer this Agreement or any
rights or obligations hereunder. The applicability of this Section 9.1 is
subject to the provisions specified in SECTION 5 of this Agreement.
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9.2. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Corporation: Guardian Technologies International, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
To the Consultant: Xxxxx Xxxxx Consulting, Inc.
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--------------------
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9.3. AMENDMENT AND WAIVER. No amendment or modification of this
Agreement shall be valid or binding upon (i) the Corporation unless made in
writing and signed by the President of the Corporation or (ii) the Consultant
unless made in writing and signed by the Consultant. No other documents will be
deemed to amend, alter or supersede the provisions contained within this
agreement without written consent by the Corporation and the Consultant
9.4. NON-WAIVER OF BREACH. No failure by either party to declare a
default due to any breach of any obligation under this Agreement by the other,
nor failure by either party to act quickly with regard thereto, shall be
considered to be a waiver of any such obligation, or of any future breach.
9.5. SEVERABILITY. In the event that any provision or portion of this
Agreement except SECTION 2.1 shall be determined to be invalid or unenforceable
for any reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
9.6. GOVERNING LAW. To the extent not preempted by Federal law, the
validity and effect of this Agreement and the rights and obligations of the
parties hereto shall be construed and determined accordance with the law of the
Commonwealth of Virginia.
9.7. ENTIRE AGREEMENT. This Agreement contains all of the terms agreed
upon by the Corporation and the Consultant with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and communications
between the parties dealing with such subject matter, whether oral or written.
9.8. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the transferees, successors and assigns of the
Corporation, including, but not limited to, any Corporation or corporation with
which the Corporation may merge or consolidate.
9.9. HEADINGS. Numbers and titles to Sections hereof are for
information purposes only and, where inconsistent with the text, are to be
disregarded.
9.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which when taken together,
shall be and constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the date and year first written above.
GUARDIAN TECHNOLOGIES, INC.
By: /S/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: President
CONSULTANT
By: /S/ XXXXX XXXXX
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Name: Xxxxx Xxxxx Consulting, Inc.
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Approved By The Board of Directors
/S/ XXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Secretary
SEAL
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SCHEDULE 1
COMMISSION SCHEDULE:
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Commissions Based Upon Net Sales by Flat 8 Percent
Consultant Less Applicable Sales
Taxes, Charge Backs, Discounts, and
Other Adjustments
---------------------------------------------------- ---------------------
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EXHIBIT A
NON-COMPETITION, CONFIDENTIALITY, PROPRIETARY RIGHTS AND
NON-SOLICITATION AGREEMENT
This Non-Competition, Confidentiality, Proprietary Rights and
Non-Solicitation Agreement is between XXXXX XXXXX (hereafter "YOU", and the
possessive "YOUR") and GUARDIAN TECHNOLOGIES INTERNATIONAL, INC., a Delaware
corporation, its affiliates, successors, assigns, parents and subsidiaries
(hereafter "CORPORATION"), dated JULY 1, 2003. You are entering into this
Agreement based on consideration to You from the Corporation including, but not
limited to, your continued consultancy and other benefits which you acknowledge
to be sufficient consideration for this Agreement.
1. NATURE OF AGREEMENT. You and the Corporation intend this Agreement to be
an Agreement of Non-Competition, Confidentiality, Proprietary Rights and
Non-Solicitation only. This Agreement does not limit in any way the right of
either You or the Corporation to terminate the consultancy relationship at any
time. This Agreement contains obligations which survive termination of the
consultancy relationship between You and the Corporation. If You and the
Corporation enter into or have entered into an Consultancy Agreement, this
Agreement is to be read and applied consistently with that Agreement.
2. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"CONFLICTING SERVICES" shall mean soliciting money sources of the
Corporation for money or soliciting business sources of the Corporation for deal
or other transactions.
"CONFIDENTIAL INFORMATION" shall mean knowledge or information not
generally known to the public or in financial and investment services industry
(including, but not limited to, information conceived, discovered or developed
by You), that You learn of, possess, or to which You have access through your
consultancy by the Corporation, related to the Corporation, its business
partners, or the business of its Customers or Potential Customers. CONFIDENTIAL
INFORMATION shall not include information that is or becomes publicly known
through no breach of this Agreement or other act or omission of or by the You.
The phrase "PUBLICLY KNOWN" shall mean readily accessible to the public in a
written publication, and shall not include information which is only available
by a substantial searching of the published literature, or information the
substance of which must be pieced together from a number of different
publications and sources. The burden of proving that information or skills and
experience are not CONFIDENTIAL INFORMATION shall be on the party asserting such
exclusion.
"CUSTOMER OR POTENTIAL CUSTOMER" means each and every person and/or
entity who or which, at any time during Your consultancy with the Corporation,
any representative of the Corporation or its Subsidiaries (including You)
solicited money or deal or other transactions or otherwise contacted with
respect to financial or other investment services.
"PROPRIETARY RIGHTS" shall mean works of authorship, improvements and
ideas, related to any activities of the Corporation in providing financial or
investment services, that You learn of, possess or have access to through your
consultancy with the Corporation including, without limitation, customer lists,
list of money services or lists of business sources.
3. PROPRIETARY RIGHTS.
3.1. You agree that PROPRIETARY RIGHTS made or conceived by You, either
by yourself or with others shall be the property of the Corporation without
royalty or other consideration to You if they are made or conceived during the
period of your consultancy by the Corporation, during any period after
termination of your consultancy during which You are retained by the Corporation
as a consultant, or with use of The Company's PROPRIETARY RIGHTS or CONFIDENTIAL
INFORMATION.
4. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the
Corporation and/or at termination of your consultancy with the Corporation for
any reason, You will promptly deliver to the Corporation all property and
materials in any form belonging to or relating to the Corporation, its business
and the business of any CUSTOMER OR POTENTIAL CUSTOMER. You agree not to
download or keep copies of company property in any hard or soft format. You
agree that you have no ownership or interest in any such property.
5. RESTRICTIONS.
5.1. You agree that while you are employed by the Corporation, or any
subsidiary thereof, and for one year following termination of such consultancy.
You will not solicit or provide or offer to provide CONFLICTING SERVICES.
5.2. At any time during and after your consultancy with the Corporation
You agree:
5.2.1. You will not disclose CONFIDENTIAL INFORMATION to any
person or entity without first obtaining the Corporation's consent, and will
take all reasonable precautions to prevent inadvertent disclosure of such
CONFIDENTIAL INFORMATION. You agree to make every effort to ensure that persons
working in any capacity for the Corporation, including, but not limited to,
Consultants, officers, directors, sub-contractors, attorneys, and agents,
subsidiary or parent entities (and the Consultants, officers, directors,
attorneys, and agents, thereof) are permitted access to CONFIDENTIAL INFORMATION
on a strictly "need to know" basis. This prohibition against Your disclosure of
CONFIDENTIAL INFORMATION includes, but is not limited to, disclosing the fact
that any similarity exists between CONFIDENTIAL INFORMATION and information
independently developed by another person or entity. You understand that the
existence of such a similarity does not excuse You from honoring Your
obligations under this Agreement.
5.2.2. You will not to use any CONFIDENTIAL INFORMATION for
your personal benefit or for the benefit of any person or entity other than the
Corporation. You will not use, copy or transfer CONFIDENTIAL INFORMATION other
than as necessary in carrying out Your duties on behalf of the Corporation
without first obtaining the Corporation's written consent, and will take all
reasonable precautions to prevent inadvertent use, copying or transfer of
CONFIDENTIAL INFORMATION. This prohibition against Your use, copying, or
transfer of CONFIDENTIAL INFORMATION includes, but is not limited to, selling,
licensing or otherwise exploiting, directly or indirectly, any products or
services (including, but not limited to, software in any form) which embody or
are derived from CONFIDENTIAL INFORMATION, or exercising judgment in performing
analysis based upon knowledge of CONFIDENTIAL INFORMATION. Without in any way
limiting the generality of this SECTION 5.2.2. You agree not to directly or
indirectly circumvent or compete with the Corporation with regard to any
CONFIDENTIAL INFORMATION.
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5.2.3. You will not make any written use of or reference to
the Corporation's name or trademarks (or any name under which the Corporation
does business) for any marketing, public relations, advertising, display or
other business purpose unrelated to the express business purposes and interests
of Corporation or make any use of Corporation's facilities for any activity
unrelated to the express business purposes and interests of the Corporation,
without the prior written consent of the Corporation, which consent may be
withheld or granted in the Corporation's sole and absolute discretion.
5.2.4. In the event that You receive a subpoena or order of a
court, or other body having jurisdiction over a matter, in which you are
compelled to produce any information relevant to the Corporation, whether
confidential or not, You will immediately provide the Corporation with written
notice of this subpoena or order so that the Corporation may timely move to
quash if appropriate.
5.3 For the 12 months immediately following the termination of your
consultancy with the Corporation for any reason You agree:
5.3.1. You will not request, induce, or attempt to induce any
CUSTOMER OR POTENTIAL CUSTOMER to terminate its relationship with the
Corporation; and
5.3.2. You will not attempt to hire, employ or associate in
business with any person employed by the Corporation or who has left the
consultancy of the Corporation within the preceding six months and You will not
discuss any potential consultancy or business association with such person, even
if You did not initiate the discussion or seek out the contact.
6. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.
6.1. You represent and agree that You have read this entire Agreement,
and understand it. You agree that this Agreement does not prevent You from
earning a living or pursuing your career. You agree that the restrictions
contained in this Agreement are reasonable, proper, and necessitated by The
Company's legitimate business interests. You represent and agree that you are
entering into this Agreement freely and with knowledge of its content and with
the intent to be bound by the Agreement and the restrictions contained in it.
6.2. In the event that a court finds this Agreement, or any of its
restrictions, to be ambiguous, unenforceable, or invalid, You and the
Corporation agree that the court shall read the Agreement as a whole and
interpret the restriction(s) at issue to be enforceable and valid to the maximum
extent allowed by law.
6.3. If the Court declines to enforce this Agreement in the manner
provided in SECTION 6.2 of this Agreement, You and the Corporation agree that
this Agreement will be automatically modified to provide the Corporation with
the maximum protection of its business interests allowed by law and You agree to
be bound by this Agreement as modified.
6.4. You and the Corporation agree that the market for The Company's
products and services is global, so that this Agreement applies to your
activities regardless of where they take place. If, however, after applying the
provisions of SECTION 6.2 and/or SECTION 6.3 of this Agreement, a court still
decides that this Agreement or any of its restrictions is unenforceable for lack
of reasonable geographic limitation and the Agreement or restriction(s) cannot
otherwise be enforced, You and the Corporation agree that the 60 miles radius
from any office at which You worked for the Corporation on either a regular or
occasional basis during the two years immediately preceding termination of your
consultancy with the Corporation or its subsidiary shall be the geographic
limitation relevant to the contested restriction.
6.5. If any provision of this Agreement is declared to be ambiguous,
unenforceable or invalid, the remainder of this Agreement shall remain in full
force and effect, and the Agreement shall be read as if the ambiguous,
unenforceable or invalid provision was not contained in the Agreement.
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7. INJUNCTIVE RELIEF AND REMEDIES.
7.1. You acknowledge that it may be impossible to assess the damages
caused by your violation of this Agreement, or any of its terms. You agree that
any threatened or actual violation or breach of this Agreement, or any of its
terms, will constitute immediate and irreparable injury to the Corporation.
7.2. You agree that in addition to any and all other damages and
remedies available to the Corporation if you breach this Agreement, the
Corporation shall be entitled to an injunction to prevent You from violating or
breaching this Agreement or any of its terms.
7.3. In the event that the Corporation enforces this Agreement through
a court order, You agree that the restrictions contained in SECTION 5.1 shall
remain in effect for a period of 12 months from the effective date of the Order
enforcing the Agreement.
7.4. You agree that if the Corporation is successful in whole or part
in any legal or equitable action against You under this Agreement, the
Corporation shall be entitled to payment of all costs, including, but not
limited to, reasonable attorney's fees, from You.
8. PUBLICATION OF THIS AGREEMENT TO YOUR SUBSEQUENT EMPLOYERS OR BUSINESS
ASSOCIATES.
8.1. If You are offered consultancy or the opportunity to enter into
any business venture in the financial or investment services industry or a
related industry as owner, partner, consultant or other capacity while the
restrictions described in SECTION 5.1 or SECTION 5.3 are in effect, You agree to
inform your potential employer, partner, co-owner and/or others involved in
managing the business which You have an opportunity to join of your obligations
under this Agreement and also agree to provide such person or persons with a
copy of this Agreement.
8.2. You also authorize the Corporation to provide copies of this
Agreement to any of the persons or entities described in SECTION 8.1 of this
Agreement and to make such persons aware of your obligations under this
Agreement.
9. MISCELLANEOUS.
9.1. This Agreement and the restrictions and obligations in it survive
the consultancy relationship and are binding regardless of the reason for
termination of consultancy.
9.2. The Agreement is for the benefit of You and of the Corporation,
its successor, assigns, parent corporations, subsidiaries, and/or purchasers.
9.3. This Agreement is governed by the laws of the State of Virginia
without regard to the conflicts of laws or principles thereof. Any suit
involving this Agreement must be brought in a state or federal court sitting in
Virginia.
9.4. No waiver by the Corporation of any breach of any of the
provisions of this Agreement is a waiver of any preceding or succeeding breach
of the same or any other provisions of this Agreement. No waiver shall be
effective unless in writing and then only to the extent expressly set forth in
writing.
9.5. Nothing in this Agreement grants a license or permission to use
any intellectual property of the Corporation, whether owned, pending, or
currently under development.
9.6. This Agreement may be amended by a writing signed by both parties.
9.7. You agree that on the subjects covered in this Agreement, it is
the entire Agreement between You and the Corporation, superseding any previous
oral or written communications, representations, understanding, or agreements
with the Corporation or with any representative of the Corporation.
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BY SIGNING THIS AGREEMENT YOU REPRESENT THAT YOU HAVE READ AND
UNDERSTAND THIS AGREEMENT, YOU HAVE HAD AN OPPORTUNITY TO CONSULT LEGAL COUNSEL
CONCERNING THIS AGREEMENT AND THAT YOU SIGN IT VOLUNTARILY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date and year first written above.
Guardian Technologies International, Inc.
By: /S/ XXXXXX X. XXXXXX
---------------------------------------
ITS: ________________________________
Xxxxx Xxxxx Consulting, Inc.
Signed: /S/ XXXXX XXXXX
----------------------
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