EXHIBIT 4.9
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "AGREEMENT") dated as of March 24th , 2003,
between Xxxxxxxx Technology, Inc. (including, as the context may require, its
subsidiaries, the "COMPANY"), a Florida corporation, and Commonwealth
Acquisitions, Ltd., a Delaware corporation, the "CONSULTANT."
WHEREAS, the Company wishes to employ the Consultant to render services
for the Company on the terms and conditions set forth in this Agreement, and the
Consultant wishes to be retained and employed by the Company on such terms and
conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT - The Company hereby employs the Consultant, and the
Consultant accepts such employment and agrees to perform services for the
Company, for the period and upon the other terms and conditions set forth in
this Agreement.
2. TERM - Unless terminated at an earlier date in accordance with
Section 9 of this Agreement or otherwise extended by agreement of the parties,
the term of the Consultant's employment hereunder shall be for a period of 1
Year, commencing on April 1, 2003. The period of employment may be extended by
written agreement or e-mail between the parties, provided that certain
provisions relating to compensation shall change upon commencement of any
extension hereto.
3. POSITION AND DUTIES/SERVICE WITH COMPANY - During the term of the
Consultant's employment, the Consultant agrees to perform such reasonable
employment duties as the Board of Directors or Chief Executive Officer of the
Company shall assign to him from time to time. Currently, the Consultant's
employment shall commence as business development and technical advisory
services.
(b) PERFORMANCE OF DUTIES
The Consultant agrees to serve the Company faithfully and to the best
of his ability and to devote a reasonable amount of time, attention and efforts
to the business and affairs of the Company during his employment by the Company.
The Consultant hereby confirms that he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement and that during
the term of this Agreement, he will not render or perform services for any other
corporation, firm, entity or person which are inconsistent with the provisions
of this Agreement. While he remains employed by the Company, the Consultant may
participate in reasonable professional, charitable, and/or personal investment
activities so long as such activities do not interfere with the performance of
his obligations under this Agreement.
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4. COMPENSATION
(a) GRANT OF STOCK. The company agrees to grant to Consultant, as of
March 24th, 2003, 1,000,000 shares of restricted stock in the
Company. Such stock shall be restricted, common stock of the
Company. In the event of a registration of stock, following
ninety (90) days after the date of this Agreement, Consultant
shall have rights to participate in such registration at
Company's expense. All such stock amounts referred to in the
following paragraphs of this section shall be based on
300,000,000 shares outstanding, and adjusted according for any
stock splits.
(b) INCENTIVE COMPENSATION. In addition to the Grant of Stock above,
the Consultant shall be awarded an additional 1,000,000 shares
in Xxxxxxxx as well as 5% of the gross contract proceeds based
upon the following milestones and when appropriate: upon the
government issuance of a purchase order, or the equivalent,
requesting Xxxxxxxx to provide goods and services in excess of
$3 million.
(c) OTHER INCENTIVE COMPENSATION. In addition to the Grant of Stock
and Incentive Compensation above, the Consultant shall be
eligible to participate in any bonus or incentive compensation
plans that may be established by the Board of Directors of the
Company from time to time applicable to the Consultant.
Additionally, for a period of five years from the date of this
Agreement, Consultant shall have preemption rights in the event of any
potentially dilutive event, such that Consultant may, within a reasonable time,
elect to participate in such dilutive event to maintain his then current
percentage interest in the Company.
5. CONFIDENTIAL INFORMATION - Except as permitted or directed by the
Company's Board of Directors or Chief Executive Officer, during the term of his
employment or at any time thereafter, the Consultant shall not divulge, furnish
or make accessible to anyone or use in any way (other than in the ordinary
course of the business of the Company) any confidential or secret knowledge or
information of the Company that the Consultant has acquired or become acquainted
with or will acquire or become acquainted with prior to the termination of the
period of his employment by the Company (including employment by the Company or
any affiliated companies prior to the date of this Agreement) whether developed
by himself/herself or by others, concerning any trade secrets, confidential or
secret designs, processes, formulae, plans, devices or material (whether or not
patented or patentable) directly or indirectly useful in any aspect of the
business of the Company, any customer or supplier lists of the Company, any
confidential or secret development or research work of the Company, or any other
confidential information or secret aspects of the business of the Company. The
Consultant acknowledges that the above-described knowledge or information
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constitutes a unique and valuable asset of the Company and represents a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. Both during and after the term of his employment, the Consultant will
refrain from any acts or omissions that would reduce the value of such knowledge
or information to the Company. The foregoing obligations of confidentiality
shall not apply to any knowledge or information that is now published or which
subsequently becomes generally publicly known in the form in which it was
obtained from the Company, other than as a direct or indirect result of the
breach of this Agreement by the Consultant.
6. VENTURES - If, during the term of his employment the Consultant is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in such project, program or venture shall belong to the Company. Except
as approved by the Company's Board of Directors or Chief Executive Officer, the
Consultant shall not be entitled to any interest in such project, program or
venture or to any commission, finder's fee or other compensation in connection
therewith other than the compensation to be paid to the Consultant as provided
in this Agreement. The Consultant shall not enter into any interest, direct or
indirect, in any vendor or customer of the Company.
7. PATENT AND RELATED MATTERS(a) DISCLOSURE AND ASSIGNMENT - The
Consultant will promptly disclose in writing to the Company complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to practice by
the Consultant, either solely or in collaboration with others, during the term
of this Agreement, whether or not during regular working hours, relating either
directly or significantly and indirectly to the business, products, practices or
techniques of the Company ("DEVELOPMENTS"). The Consultant, to the extent that
he has the legal right to do so, hereby acknowledges that any and all of the
Developments are the property of the Company and hereby assigns and agrees to
assign to the Company any and all of the Consultant's right, title and interest
in and to any and all of the Developments. At the request of the Company, the
Consultant will confer with the Company and its representatives for the purpose
of disclosing all Developments to the Company as the Company shall reasonably
request during the period ending one year after termination of the Consultant's
employment with the Company, provided such conference is at Company's expense
and Consultant is compensated at no less that a rate of $250 per hour for his
time for conference following termination or expiration of this Agreement.
(b) LIMITATION ON SECTION 7(a)
The provisions of Section 7(a) shall not apply to any Development
meeting the following conditions:
(i) such Development was developed entirely on the Consultant's
own time without the use of any Company equipment, supplies, facility or
trade secret information; and
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(ii) such Development does not relate directly to the business
of the Company to the Company's actual or demonstrably anticipated
research or development; or result from any work performed by the
Consultant for the Company.
(c) COPYRIGHTABLE MATERIAL All right, title and interest in all
copyrightable material that the Consultant shall conceive or originate, either
individually or jointly with others, and which arise out of the performance of
this Agreement, will be the property of the Company and are by this Agreement
assigned to the Company along with ownership of any and all copyrights in the
copyrightable material. Upon request and without further compensation therefor,
but at no expense to the Consultant, the Consultant shall execute all papers and
perform all other acts necessary to assist the Company to obtain and register
copyrights on such materials in any and all countries, except that Consultant
shall be compensated at no less that a rate of $250 per hour for his time for
compliance with this provision following termination or expiration of this
Agreement. Where applicable, works of authorship created by the Consultant for
the Company in performing his responsibilities under this Agreement shall be
considered "WORKS MADE FOR HIRE," as defined in the U.S. Copyright Act.
(d) KNOW-HOW AND TRADE SECRETS - All know-how and trade secret
information conceived or originated by the Consultant that arises out of the
performance of his obligations or responsibilities under this Agreement or any
related material or information shall be the property of the Company, and all
rights therein are by this Agreement assigned to the Company.
8. TERMINATION OF EMPLOYMENT ; GROUNDS FOR TERMINATION - The
Consultant's employment shall terminate prior to the expiration of the initial
term set forth in Section 2 or any extension thereof in the event that at any
time:
(i) The Consultant dies,
(ii) The Board of Directors of the Company elects to terminate
this Agreement for "cause" and notifies the Consultant in writing of
such election,
(iii) The Consultant becomes "disabled," so that he cannot
perform the essential functions of his position with or without
reasonable accommodation,
(iv) The Board of Directors of the Company elects to terminate
this Agreement without "cause" and notifies the Consultant in writing of
such election, or
(v) The Consultant elects to terminate this Agreement and
notifies the Company in writing of such election.
If this Agreement is terminated pursuant to clause (i) or (ii) of this
Section 9(a), such termination shall be effective immediately. If this Agreement
is terminated pursuant to clause (iii), (iv) or (v) of this Section 9(a), such
termination shall be effective 30 days after delivery of the notice of
termination.
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(b) "CAUSE" DEFINED "Cause" means:
(i) The Consultant has breached the provisions of Section 5, 7
or 8 of this Agreement in any material respect,
(ii) The Consultant has engaged in willful and material
misconduct, including willful and material failure to perform the
Consultant's duties as an officer or Consultant of the Company and has
failed to cure such default within 30 days after receipt of written
notice of default from the Company,
(iii) The Consultant has committed fraud, misappropriation or
embezzlement in connection with the Company's business, or
(iv) The Consultant has been convicted or has pleaded NOLO
CONTENDERE to criminal misconduct (except for parking violations,
occasional minor traffic violations and other similar minor violations).
(c) EFFECT OF TERMINATION - Notwithstanding any termination of this
Agreement, the Consultant, in consideration of his employment hereunder to the
date of such termination, shall remain bound by the provisions of this Agreement
which specifically relate to periods, activities or obligations upon or
subsequent to the termination of the Consultant's employment.
(d) "DISABLED" DEFINED - "DISABLED" means any mental or physical
condition that renders the Consultant unable to perform the essential functions
of his position, with or without reasonable accommodation, for a period in
excess of 3 months.
(e) SURRENDER OF RECORDS AND PROPERTY - Upon termination of his
employment with the Company, the Consultant shall deliver promptly to the
Company all records, manuals, books, blank forms, documents, letters, memoranda,
notes, notebooks, reports, data, tables, calculations or copies thereof that
relate in any way to the business, products, practices or techniques of the
Company, and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents that in whole or in
part contain any trade secrets or confidential information of the Company, which
in any of these cases are in his possession or under his control.
Termination by Consultant for "Good Reason" shall mean:
(i) the assignment to the Consultant of any duties inconsistent in any
respect with the Consultant's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 3(a) or any other action by the Company which results in a diminution
in such position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt of notice thereof
given by the Consultant;
(ii) any termination or reduction of a material benefit under any
benefits plan in which the Consultant participates unless (i) there is
substituted a comparable benefit that is economically substantially equivalent
to the terminated or reduced benefit prior to such termination or reduction or
(ii) benefits under such plan are terminated or reduced with respect to all
Consultants previously granted benefits thereunder;
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(iii) without limiting the generality of the foregoing, any material
breach of this Agreement by the Company or any successor thereto.
9. INDEMNIFICATION
In the event that Consultant is made, or threatened to be made, a party
to any action or proceeding, whether civil or criminal, by reason of the fact
that he is or was a director, officer, or member of a committee of the Board of
Directors of the Company or serves or served any other corporation, partnership,
joint venture, trust, Consultant benefit plan or other enterprise in any
capacity at the request of the Company, he shall be indemnified by the Company
and the Company shall advance his related expenses to the fullest extent
permitted by law (including without limitation, damages, costs and reasonable
attorney fees), as may otherwise be provided in the Company's Certificate of
Incorporation and ByLaws.
10. MISCELLANEOUS
(a) COUNTERPARTS - This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken together
shall constitute one and the same agreement, and any party hereto may execute
this Agreement by signing any such counterpart.
(b) SEVERABILITY - Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provisions of this Agreement will not
be affected or impaired thereby. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered.
(c) SUCCESSORS AND ASSIGNS - This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns.
(d) ASSIGNABILITY - Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Consultant, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which 50% or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. Provided such
assignee explicitly assumes such responsibilities, after any such assignment by
the Company, the Company shall be discharged from all further liability
hereunder and such assignee shall thereafter be deemed to be the Company for the
purposes of all provisions of this Agreement including this Section 10.
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(e) MODIFICATION, AMENDMENT, WAIVER OR TERMINATION - No provision of
this Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No course of
dealing between the parties will modify, amend, waive or terminate any provision
of this Agreement or any rights or obligations of any party under or by reason
of this Agreement. No delay on the part of the Company or Consultant in
exercising any right hereunder shall operate as a waiver of such right. No
waiver, express or implied, by the Company of any right or any breach by the
Consultant shall constitute a waiver of any other right or breach by the
Consultant.
(f) NOTICES - All notices, consents, requests, instructions, approvals
or other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
If to the Company:
Xxx Xxxxx, Xx.
#000
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: CFO
If to the Consultant:
Xxxxxxxxxxx X. Xxxxxxx
Commonwealth Acquisitions, Ltd.
Xxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Any party may change the address set forth above by notice to each other party
given as provided herein.
(g) HEADINGS. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(h) GOVERNING LAW. ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW PROVISIONS THEREOF.
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(i) VENUE; FEES AND EXPENSES. Any action at law, suit in equity or
judicial proceeding arising directly, indirectly, or otherwise in connection
with, out of, related to or from this Agreement, or any provision hereof, shall
be litigated only in the state courts located in the State of Connecticut,
County of Fairfield or the federal courts in the district which covers such
county. The Consultant and the Company consent to the jurisdiction of such
courts. The prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs in any such action.
(j) WAIVER OF RIGHT TO JURY TRIAL. Each party hereto hereby waives,
except to the extent otherwise required by applicable law, the right to trial by
jury in any legal action or proceeding between the parties hereto arising out of
or in connection with this Agreement.
(k) THIRD-PARTY BENEFIT - Nothing in this Agreement, express or implied,
is intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(l) WITHHOLDING TAXES - The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THIS AGREEMENT AND ANY EXHIBITS HERETO ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR ALL
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
ACCEPTED AND AGREED:
XXXXXXXX TECHNOLOGY, INC. COMMONWEALTH ACQUISITIONS, LTD.
By: /S/ Xxx Xxxxx, Xx. /S/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------- -------------------------------
Xxx Xxxxx, Xx. Xxxxxxxxxxx X. Xxxxxxx, Partner
Title: President
Date: 3/24/03 Date: _________________________
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