Exhibit 10.1
AMENDED AND RESTATED CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AGREEMENT (the "Agreement") is entered
into as of this 28th day of September 2001 by and between XXXXXXXX.XXX CORP., a
Delaware corporation ("Company"), and R. XXXXXXX XXXXX, an individual
("Consultant").
R E C I T A L
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The Company and Consultant have previously entered into that certain
Consulting Agreement dated July 2, 2001 that they now find desirable to amend
and to restate, as so amended, by way of this Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Duties; Consultant Representation. During the term of this Agreement,
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Consultant shall provide consultation on behalf of the Company in connection
with the (i) evaluation and structuring of potential merger and acquisition
opportunities for the Company; and (ii) other business strategies. In
performance of these duties, Consultant shall provide the Company with the
benefits of Consultant's best judgment and efforts. Nothing herein contained
shall be construed to limit or restrict Consultant in rendering services of a
similar nature to others, provided, however, that during the term of this
Agreement, Consultant covenants not to provide consulting services to, or to
engage in, directly or indirectly, any business competitive with that of the
Company without the consent of the Company. The duties to be performed by
Consultant pursuant to this Agreement may be performed at a location determined
by Consultant and at such times as may be agreed to by Consultant and the
Company.
2. Term and Termination.
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(a) Term. This Agreement shall commence on July 2, 2001, and shall
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remain in effect until December 31, 2002, unless and until the Agreement is
earlier terminated by the Consultant or the Company. Either party may terminate
this Agreement effective on five (5) days prior written notice.
(b) Obligations Upon Expiration or Termination. Upon expiration or
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termination of this Agreement, Consultant shall promptly return to the Company
all material owned by the Company. Expiration or termination of this Agreement
shall not relieve either party of its obligations regarding Confidential
Information under Section 4 below.
3. Consideration. As consideration for Consultant entering into this
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Agreement and Consultant's services hereunder, the Consultant has previously
received 500,000 shares of the Company's common stock at a value of $125,000 and
shall be entitled to receive an additional 500,000 shares of the Company's
common stock valued at $0.25 per share, all of such shares
having been earned by Consultants. All shares shall be issued pursuant to a Form
S-8 registration statement pursuant to Section 5 of the Securities Act of 1933
("Act").
4. Disclosure or Use of Confidential Information.
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(a) As used herein, the term "Confidential Information" means any and
all trade secrets or other confidential information of any kind, nature or
description concerning any matters affecting or relating to the business of the
Company that derives economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use and which is the subject of efforts by the Company
that are reasonable under the circumstances to maintain its secrecy.
Confidential Information includes, but is not limited to, operations and
financial information concerning the Company's business; customer names,
addresses, buying habits, needs and the methods of fulfilling those needs;
supplier names, addresses and pricing policies; and the Company's pricing
policies. The term "Confidential Information" does not include information which
(i) is already in Consultant's possession, provided that such information is not
known by Consultant to be subject to another confidentiality agreement with or
other obligation of secrecy to the Company or another party, or (ii) becomes
generally available to the public other than as a result of a disclosure by
Consultant or his agents or advisors, or (iii) becomes available to Consultant
on a non-confidential basis from a source other than the Company or its
advisors, provided that such source is not known by Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the Company or
another party.
(b) Consultant will keep confidential and will not directly or
indirectly divulge to anyone (except as required by applicable law or in
connection with the performance of his duties and responsibilities as a
consultant hereunder), to the extent practicable, or use or otherwise
appropriate for his own benefit, or on behalf of any other person, firm,
partnership or corporation by whom he might subsequently be hired as a
consultant or otherwise associated or affiliated with, any Confidential
Information.
(c) All documents, memoranda, reports, notebooks, correspondence,
files, lists and other records, and the like, specifications, computer software
and computer equipment, computer printouts, computer disks, and all photocopies
or other reproductions thereof, affecting or relating to the business of the
Company, which Consultant shall prepare, use, construct, observe, possess or
control (the "Company Materials"), shall be and remain the sole property of the
Company. Upon termination of this Agreement, Consultant shall deliver promptly
to the Company all such Company Materials.
5. Independent Contractor. The relationship between Consultant and the
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Company is that of an independent contractor. The Company shall have no right or
authority to control or direct the manner in which Consultant renders his
services hereunder. In furtherance of this independent contractor relationship,
the only compensation owed by the Company hereunder is that contemplated by
Section 3, and the Company shall have no liability or obligation with respect to
any federal, state or local taxation or withholdings with respect to Consultant,
all of which liability and obligation shall be borne solely by Consultant and
Consultant shall indemnify the Company and hold it harmless against any such
liability.
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6. Xxxxxxx Xxxxxxx. Consultant acknowledges that he may receive from time
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to time material nonpublic information concerning the Company and other parties
involved with the Company. Consultant, on behalf of itself and its affiliates,
acknowledges that he is familiar with the Federal securities laws and
regulations outlawing xxxxxxx xxxxxxx and represents and covenants that it shall
act in strict accordance with such laws and regulations at all times.
7. Entire Agreement and Waiver. This Agreement contains the entire
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agreement between the parties hereto with respect to the consulting services to
be rendered to the Company by Consultant, and supersedes all prior and
contemporaneous agreements, arrangements, negotiations and understandings
between the parties relating to the subject matter hereof. No waiver of any
term, provision, or condition of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or shall
constitute, a waiver of any other provision hereof, whether or not similar, nor
shall such waiver constitute a continuing waiver, and no waiver shall be binding
unless executed in writing by the party making the waiver.
8. Enforcement; Severability. If in any proceeding, a court shall refuse
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to enforce any provisions of this Agreement, whether because the restrictions
contained herein are more extensive than is necessary to protect the business of
the Company or for any other reason, it is expressly understood and agreed
between the parties hereto that this Agreement is deemed modified to the extent
necessary to permit this Agreement to be enforced in any such proceedings. The
validity and enforceability of the remaining provisions or portions of this
Agreement shall not be affected thereby and shall remain valid and enforceable
to the fullest extent permitted under applicable laws.
9. Amendments. No supplement, modification or amendment of any term,
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provision or condition of this Agreement shall be binding or enforceable unless
executed in writing by the parties hereto.
10. Applicable Law. This Agreement and the performance hereunder and all
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suits and special proceedings hereunder shall be construed in accordance with
the laws of the State of California.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first above written.
"Company"
XXXXXXXX.XXX CORP.,
a Delaware corporation
By:_______________________________________________
Xxxxx X. Xxxxxx, Chief Executive Officer
"Consultant"
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R. Xxxxxxx Xxxxx
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