Exhibit 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of __________,
2003, between WARP TECHNOLOGY HOLDINGS, INC., a Nevada Corporation (the
"Company"), and XXXXXX XXXXXX, an individual ("Consultant"), with reference to
the following facts:
A. The Company is engaged in the computer network appliance business.
B. Consultant has substantive experience, relationships and contacts in
the computer Internet, and extranet networking fields;
C. The Company desires to retain Consultant in a consulting capacity
commencing on the date hereof, and Consultant desires to perform such
services, all upon the terms, covenants and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants
and conditions contained herein, the parties agree as follows:
1. Consulting Services.
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1.1 Services. The consulting services to be performed by
Consultant for and on behalf of the Company hereunder shall consist of
advising and counseling the Company with respect to: acquisitions in
its industry, growth and business plans, strategic planning, investor
relations, and consultations regarding private placements, and shall
make himself available for discussions with prospective investors and
others in private placements and any other area that is mutually
agreed upon by Consultant and the Company. Consultant shall provide
counsel as to traditional bank financings, equities in any and all
capital markets and non-traditional borrowings, investment banking and
investor relations firms. Consultant will not be deemed in conflict
with this Agreement by acting as a Consultant, Advisor, Board Member
or investor in other companies in similar industries, including any
such companies that may enter into business relationships, strategic
transactions, joint ventures or other transactions with the Company.
1.2 Time and Effort.
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Consultant shall devote such time and effort to perform the
consulting services provided for herein as shall be agreed upon by
Consultant and the Company from time to time. Subject to the
foregoing, Consultant's daily schedule and hours worked under this
Agreement on a given day shall generally be subject to Consultant's
discretion. Consultant shall render services at the Company's offices
or such other places as he deems appropriate for the performance his
engagement hereunder.
1.3 Term. The term of this Agreement shall commence on the date
hereof and shall continue for one year or until terminated by either
party for any or no reason upon 30 day written notice to other.
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2. Compensation. As a signing bonus in consideration of entering into this
agreement, Consultant shall be granted on a fully vested basis, 5 million shares
of the Company's Common Stock, valued at $0.08 per share, which are deemed fully
earned on the date hereof. The Company agrees to include the 5 million shares of
Common Stock in its registration statements filed with the Securities and
Exchange Commission (other than under Form S-4) under the Securities Act of 1933
and to seek effectiveness of such registration statements as soon as practicable
and to maintain the effectiveness of such registration statements for so long as
necessary until Consultant can sell all the shares within a 90 day period under
Rule 144. Consultant may direct the Company to issue all or any such shares to
his nominee or nominees, from time to time, and may assign his rights to all or
any of such shares to any assignee or assignees and may transfer the shares to
any transferee or transferees, provided such nominees, assignees or transferees
are accredited investors, as that term is used in Regulation D under the
Securities Act of 1933. Any such nominees, assignees or transferees shall
acquire the same registration rights as to the shares as are herein granted to
Consultant.
3. Business Expenses. Consultant shall be reimbursed for all reasonable and
necessary expenses incurred by Consultant in the performance of duties
hereunder; provided, that all individual expenditures over $500 shall be
reimbursed only if the expenditure was pre-approved by the Company's CEO.
4. Confidentiality. Consultant shall regard and preserve as confidential
all trade secrets and other confidential information pertaining to the Company's
business that has been or may be obtained by Consultant by reason of his
engagement. Consultant shall not, without written authority from the Company,
use for his own benefit or purposes, or disclose to others, either during the
period of his engagement or thereafter, except as required in the line of his
engagement by the Company, any trade secrets or other confidential information
connected with the business of the Company; and Consultant shall not take or
retain or copy any of the Company's confidential information and trade secrets.
This provision shall not apply with respect to Company information which has
been voluntarily disclosed by the Company to the public or otherwise enters the
public domain through lawful means. Consultant further agrees that all know how,
documents, reports, plans, proposals and marketing plans and materials made by
him or that come into his possession by reason of his engagement by the Company
are the property of the Company and shall not be used by him in any way adverse
to the Company's interest. Consultant shall not deliver, reproduce or in anyway
allow such documents or things to be deliberately used by any third party
without specific direction or consent by a duly authorized representative of the
Company. The Company and Consultant hereby acknowledge and agree that any breach
of this provision will cause damage to the Company in an amount difficult to
ascertain. Accordingly, in addition to any other relief to which the Company may
be entitled by reason of such a breach, the Company shall be entitled to such
injunctive relief as may be ordered by any court of competent jurisdiction
(including, but not limited to, an injunction restraining any violation of this
provision without proof of actual damage).
5. Independent Contractor. The relationship of Consultant to the Company
shall be that of an independent contractor. The Consultant shall not be deemed
to be an employee of the Company for any purpose, and neither Consultant nor the
Company shall represent or warrant the existence of such an employment agreement
to any third party. Consultant shall not be entitled to nor receive any benefit
normally provided to Company's employees such as, but not limited to, vacation
payment, retirement, health care or sick pay. The Company shall have no
responsibility or liability on account of acts or omissions of
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Consultant, other than those made within the scope of Consultant's authority as
described in this Agreement. Consultant shall not have the authority to bind the
Company and shall not hold himself out as having such authority to any third
party. Consultant agrees to indemnify the Company against all liability and
expense which it may sustain or incur in connection with the failure to withhold
federal or state income taxes from the compensation paid to Consultant and in
connection with the failure to pay any other taxes (e.g., social security and
employment taxes) which may become due because Consultant is working for the
Company. Consultant represents and agrees that he will obtain any and all
business licenses and permits necessary to perform the consulting services
provided for hereunder. Consultant shall be solely responsible and liable for
the withholding, paying, and/or discharging, as required by law or by his
contractual arrangements or otherwise, of all taxes, costs or charges of any
nature.
6. Investment Covenant. Consultant represents and agrees that Consultant is
accepting the securities under this Agreement for Consultant's own account and
not with a view to or for sale in connection with any distribution thereof.
Consultant understands that the securities will not be freely transferable
(except as provided in paragraph 2 above) unless registered with the Securities
and Exchange Commission and represents that he either has a preexisting personal
or business relationship with the Company or any of its officers, directors or
controlling persons or, by reason of his business or financial experience, has
the capacity to protect his own interest in connection with receiving the
securities as compensation hereunder. Consultant further represents that he was
not solicited by publication of any advertisement in connection with the receipt
of the securities.
7. Indemnification. Each party shall defend, indemnify and hold harmless
the other, its officers, directors, agents, representatives, and employees, from
any cost, expense, loss or damage, including attorney's fees, arising out of or
connected with any claim by a third party which is inconsistent with any of the
representations made by either party to the other in this Agreement or in the
good faith performance by either party of its responsibilities, duties and
obligations in this Agreement.
8. Miscellaneous.
8.1 Representations. Consultant represents and warrants that
Consultant is under no restrictions or prohibition, whether contractual or
otherwise, with respect to its rights to execute this Agreement and perform
his obligations hereunder. Company represents and warrants that the
issuance of the shares and this agreement has been duly authorized by its
board of directors, that the shares when issued will be validly issued,
fully paid and non-assessable. that this agreement, including the
registration rights provisions are not in conflict with any other agreement
or its charter or bylaws.
8.2 Assignment. Except as otherwise provided, the rights and
obligations of the Company under this Agreement shall inure to the benefit
of and shall be binding upon its successors and assigns. The rights and
obligations of Consultant hereunder shall be subject to transfer,
assignment or delegation by Consultant as set forth in paragraph 2.
8.3 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof
and supersedes all prior agreements, arrangements and understandings with
respect thereto. No representation, promise, inducement or statement of
intention has been made by any party hereto that is not embodied herein and
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no party shall be bound by or liable for any alleged representation,
promise, inducement or statement not so set forth herein.
8.4 Waiver. No failure on the part of either party hereto to exercise,
and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof or as a waiver of any other right, power or
remedy hereunder or the performance of any obligation of the other party
hereto; and no single or partial exercise by either party hereto of any
right, power or remedy hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or remedy by
such party.
8.5 Notice. All notices, requests and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed
given (a) upon receipt, if given by personal delivery, (b) upon
confirmation of delivery, if given by electronic facsimile, or (c) upon the
third business day following mailing, if deposited in the United States
Mail, certified mail, return receipt requested, postage prepaid, addressed
as follows:
If to Company: WARP TECHNOLOGY HOLDINGS, INC.
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx,
Chairman and CEO
If to Consultant: Xxxxxx Xxxxxx
00000 Xxxxxxxxxx Xxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Either party may change its address or fax number by providing notice of such
change to the other party in accordance herewith.
8.6 Controlling Law. This Agreement shall be interpreted and enforced
under the internal laws of the State of California, as if made and to be
fully performed therein. Any suit hereunder shall be brought in the courts
of California.
8.7 Construction. In construing this Agreement, none of the parties
hereto shall have any term or provision construed against such party solely
by reason of such party having drafted the same.
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8.8 Severability. If any sentence, paragraph, clause or combination of
the same in this Agreement is held by a court or arbitration panel of
competent jurisdiction to be unenforceable in any jurisdiction, such
sentence, paragraph, clause or combination shall be unenforceable in the
jurisdiction where it is invalid and the remainder of this Agreement shall
remain binding on the parties in such jurisdiction as if such unenforceable
provision had not been contained herein. The enforceability of such
sentence, paragraph, clause or combination of the same in this Agreement
shall be otherwise unaffected and shall remain enforceable in all other
jurisdictions.
8.9 Modification. This Agreement may be modified, amended, superseded
or canceled, and any part of the terms, covenants, representations,
warranties or conditions of the Agreement may be waived, only by a written
document executed by the party or parties to be bound by any such
modification, amendment, cancellation or waiver.
8.10 Counterparts. This Agreement may be signed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
8.11 Effect of Headings. The headings used in this Agreement are
included for convenience only and are not to be used in construing or
interpreting this Agreement.
8.12 Cumulative Remedies. Each and all of the rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative,
and none of them shall be exclusive of any other right or remedy; and the
exercise of any one of such rights or remedies shall not be deemed a waiver
or an election not to exercise any other such right or remedy.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"Company"
WARP TECHNOLOGY HOLDINGS, INC.
By:
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"Consultant"
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Xxxxxx Xxxxxx
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