EXHIBIT 10.28
September 27, 1999
PRIVATE AND CONFIDENTIAL
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Xx. Xxxxx Xxxxxxxx
President and Chief Executive Officer
Cyber Management, Inc.
0000 Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxxx
X0X 0X) Xxxxxx
Dear Mr. Mougayar:
This letter (the "Agreement") will confirm the agreement between Cyber
Management, Inc., a Canadian corporation, with a business address of 0000
Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxx, X0X 0X0, Xxxxxx ("CMI") and PartMiner, Inc., a
New York corporation, with a business address of 000 Xxxx Xxxxxx Xxxxx, 00/xx/
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("PartMiner") for consulting services to be
provided by CMI to PartMiner. For purposes of this Agreement, CMI shall include
Xxxxx Xxxxxxxx. The parties hereto agree as follows:
1. Services.
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1.1 Scope of Services. CMI shall perform consulting services for
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PartMiner, including without limitation, the following:
(i) advising PartMiner with respect to its marketing plans and
business development activities; its external marketing campaigns and
advertising programs; and the preparation and presentation of material to
investors, the media, industry, and customers;
(ii) drafting and finalizing a comprehensive "white paper" describing
PartMiner's business and its associated business opportunities in relation to
the marketplace, including without limitation, a detailed discussion of market
positioning; and preparing presentation material to accompany the white paper;
and
(iii) identifying for PartMiner key business metrics that depict,
demonstrate or otherwise describe PartMiner's business advantage, and possible
market segments or verticals for entry by PartMiner; potential media and
industry relationships, including without limitation, assisting PartMiner in
developing such relationships, and selecting and introducing PartMiner to
suitable media and industry contacts. Such contact must be an officer,
principal or decision maker of such media and industry entities. CMI will be
present during at least one introductory meeting; provided, however, that
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PartMiner has the right to meet or not meet with any potential contact selected
by CMI within PartMiner's sole discretion.
1.2 Nature of Services. CMI shall devote such time, attention and
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energies to the performance of this Agreement as may be reasonably requested by
PartMiner in order that CMI fulfills its obligations under this Agreement. CMI
agrees that the services to be provided to PartMiner shall be carried out in a
diligent, prompt and professional manner, consistent with the highest
professional standards in the industry. The services performed by CMI for
PartMiner are non-exclusive and PartMiner remains free to engage others to
perform similar services for PartMiner.
2. Term and Termination. The term of this Agreement shall commence as of
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August 31, 1999 and shall terminate six (6) months thereafter (the "Term"),
unless terminated earlier as set forth below. This Agreement may be terminated
by either party for any reason upon thirty (30) days written notice. In the
event of termination by PartMiner, PartMiner's only obligation to CMI shall be a
pro-rata grant of options to CMI for services rendered pursuant to this
Agreement prior to the effective date of termination. Either party may
terminate this Agreement upon a material breach of this Agreement by the other
party, which breach is not remedied within ten (10) days after written notice of
such breach by the non-breaching party. Upon termination, CMI shall deliver to
PartMiner all written and other materials, including records, notes, data,
memoranda, models, flow charts, etc., which PartMiner has provided to CMI or
which CMI has prepared in connection with this Agreement in whatever form, which
materials shall be owned exclusively by PartMiner.
3. Compensation. PartMiner shall compensate CMI for the consulting
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services as follows:
3.1 Options. Provided that neither party has terminated this
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Agreement prior to the end of the Term pursuant to paragraph 2 above, PartMiner
will grant to Xxxxx Xxxxxxxx options to acquire common stock of PartMiner
pursuant to a nonqualified stock option agreement, such grant to be effective on
the date you execute such nonqualified stock option agreement. The options
shall vest, if at all, commencing on the effective date of PartMiner's initial
public offering of its common stock. The options shall be exercisable at a
price equal to such public offering price per share (the "Option Price"). The
number of shares subject to the options shall be an amount equal to $75,000
divided by the Option Price. In the event PartMiner's initial public offering
consists of units, the Option Price shall be based upon the portion of the unit
price allocable to PartMiner's common stock, as determined by the underwriters
of the initial public offering at that time.
3.2 Expenses. CMI may be expected to travel on behalf of PartMiner,
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or to work on the premises of one or more of PartMiner's clients. CMI shall use
reasonable efforts to provide CMI as much notice as possible in advance of any
travel requirement. PartMiner shall be responsible for reimbursement of all
authorized business-related expenses associated with such travel.
4. Independent Contractor. The relationship established by this Agreement
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is that of independent contractor and nothing in this Agreement shall be
construed as creating a relationship of joint venture, partnership, employer-
employee, or agent. CMI does not have
authority to create any obligations for PartMiner, nor may CMI create or enter
into any obligations for PartMiner. CMI remains free to provide consulting
services for entities other than PartMiner; provided that, CMI's work for such
other entities does not impair CMI's ability to fulfill its commitments to
PartMiner under this Agreement and does not violate any term or condition of
this Agreement. Because CMI is an independent contractor, CMI is not eligible to
participate in any employee fringe benefit of PartMiner, including health
insurance, dental insurance, paid vacation or any other benefit plan of
PartMiner.
5. Restrictive Covenants.
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5.1 Confidentiality. In the course of our business relationship, CMI
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may have access to information that PartMiner considers proprietary and
confidential. This information includes, without limitation, copyrightable
works of original authorship, inventions (whether patentable, patented or not),
trademarks and other intellectual property, technical know-how, technical
specifications, software object code and source code, protocols, strategic
business plans, results of testing, financial information, product information,
methods of operation, concepts, compilations of data, and customer, vendor and
third party information ("Confidential Information"). CMI agrees that
Confidential Information will be used by CMI only to perform the services
pursuant to this Agreement, will not be disclosed to any other company or person
without the prior written permission from an officer of PartMiner, and will not
be used for any other purpose other than that for which it was disclosed.
Confidential Information does not include any information which (i) at the time
of disclosure or thereafter is generally available to and known to the public
(other than as a result of disclosure directly or indirectly by CMI), (ii) was
available to CMI on a non-confidential basis from a source other than PartMiner
or our representatives and advisors; provided that such source is not in breach
of any obligations of confidentiality to PartMiner, or (iii) has been
independently acquired or developed by CMI without violating any of its
obligations pursuant to this Agreement.
5.2 No Solicitation. PartMiner has made and continues to make a
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substantial investment in the development of its business. During the term of
this Agreement, and for a period of one year thereafter, CMI agrees not to
solicit any employee or business associate of PartMiner to terminate or
materially alter their relationship with PartMiner, or to solicit any business
associate of PartMiner for services which compete with those provided by
PartMiner.
5.3 Other Agreement. CMI will sign a Technical Information and
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Invention Agreement, a copy of which is attached hereto as Exhibit A.
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6. Notices. All notices to be given hereunder shall be in writing to the
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parties at the addresses first above written, in the case of CMI directed to the
attention of Xxxxx Xxxxxxxx, and in the case of PartMiner directed to the
attention of its General Counsel, by personal delivery or sent by certified or
registered United States mail, postage prepaid, return receipt requested, or by
reputable overnight courier. Either party may change its notice address by a
notice given to the other in a manner provided for in this Paragraph 6. Notices
shall be deemed to have been given (and received) (a) when personally delivered,
(b) five (5) business days after posting when sent by certified or registered
United States mail, or (c) on the business day after the date on which deposited
with a reputable overnight courier.
7. Miscellaneous. This Agreement shall be construed in accordance with
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the laws of the State of New York, without regard to its conflicts of laws
rules. Any dispute between the parties shall be litigated in the federal and
state courts located in New York County, State of New York. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous oral or written agreements between the
parties with respect to the subject matter hereof, and may not be modified
except by a writing signed by an authorized signatory of each party. If any
provision of this Agreement is held to be unenforceable, invalid or illegal by
any court of competent jurisdiction, such unenforceable, invalid or illegal
provision shall not affect the remainder of this Agreement. CMI may not assign
this Agreement or any of its rights hereunder without the prior written consent
of PartMiner. This Agreement shall be binding on and inure to the benefit of
the parties hereto and their successors and permitted assigns. No waiver by a
party of any breach or default hereunder shall be deemed to be a waiver of any
preceding or subsequent breach or default. The paragraph headings used herein
are for convenience only. This Agreement shall be deemed to have been jointly
and equally drafted by the parties and the provisions of this Agreement
therefore should not be construed against a party on the grounds that such party
drafted or was more responsible for drafting the provisions. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original, and all of which together shall constitute a single instrument.
Please indicate your agreement to and acceptance of the foregoing by
signing in the appropriate space below.
We look forward to a productive relationship with you.
Very truly yours,
PARTMINER, INC.
/s/ Xxxxxx Xxxxxxxxx
By:______________________
Xxxxxx Xxxxxxxxx
President and Chief Executive Officer
AGREED AND ACCEPTED:
CYBER MANAGEMENT, INC.
/s/ Xxxxx Xxxxxxxx
By:________________________
Xxxxx Xxxxxxxx
President and Chief Executive Officer
/s/ Xxxxx Xxxxxxxx
___________________________
Xxxxx Xxxxxxxx, individually
