EXHIBIT 10.67
December 6, 1999
Xx. Xxxxxx X. Xxxxx
00000 Xxxx Xx.
Xxxxx Xxxxx, XX 00000
Dear Xxxxxx:
This Agreement summarizes a consulting arrangement between you, ("Colin"), and
Applied Data Communications, Inc. a Delaware corporation ("ADC"), covering the
period from January 1, 2001 through December 31, 2001. Pursuant to the terms of
this Agreement, you are to advise ADC in its financial planning, corporate
business focus, personnel requirements and market penetrations. ADC will
compensate you at the rate of 12,500 shares per month for services rendered
during the term of this Agreement. All shares earned under this Agreement shall
be issued as registered common stock, and shall be issued prior to April 15,
2001.
This Agreement shall commence effective January 1, 2000 and, unless earlier
terminated in accordance with the provisions of this Agreement, shall continue
in full force and effect herein after for a period ending December 31, 2000. In
the event of any material breach of any term or provision of this Agreement by
either party, the other party may cancel this Agreement by giving thirty (30)
day prior written notice thereof; provided, however, that this Agreement shall
not terminate at the end of said thirty (30) days notice period if the party in
breach has cured said breach to the satisfaction of the other party prior to the
expiration of said thirty (30) day period.
You hereby warrant and represent that neither the execution and delivery of this
Agreement nor the performance by you of your obligations thereunder will (I)
contravene any provision contained in its Articles of Incorporation or By-laws
or (ii) violate or result in a breach of or constitute a default under (A) any
contract, agreement, commitment, indenture, mortgage, lien, pledge, note,
license, permit or other instrument or obligation or (B) any judgment, order,
law, rule or regulation or other restriction of any governmental authority, in
each case to which you are a party or by which you are bound or to which any of
your assets or properties are subject.
Under the terms of this Agreement, you shall be deemed to have the status of an
independent contractor, and nothing in this Agreement shall be deemed to place
the parties in the relationship of employer-employee, principal-agent, partners,
or joint venturers. you shall provide under this Agreement the services of only
those personnel who are employees of yours. Personnel supplied by you hereunder
are not ADC's employees or agents and you assumes full responsibility for their
acts. You shall be solely responsible for the payment of compensation of your
employees assigned to perform services hereunder and such employees shall be
informed that they are not entitled to the provision of any ADC employee
benefits. ADC shall not be
responsible for the payment of worker's compensation, disability benefits or
unemployment insurance or for withholding or paying employment related taxes for
any of your employees, which responsibility shall be solely that of you. In the
event that any government agency, any court or any other applicable entity
determines that the personnel provided by you or any permitted subcontractor or
assignee of you hereunder are employees of ADC for any purpose, you agree to
indemnify and hold ADC harmless from liabilities, costs and expenses (including,
but not limited to, attorneys' fees) associated with the determination.
Notwithstanding any other provisions of the Agreement, you may not contract or
subcontract any work to be performed hereunder without the express written
consent of ADC, any such subcontract or assignment shall include the terms
specified by ADC and the assurances and indemnities required to be provided by
you pursuant to this Agreement.
Your main contacts at ADC will be Xxxxxx X. ("Xxx") Xxxx, President and Xxxxx X.
Xxxxxx, Xx., Chief Financial Officer.
Please sign below to indicate your acceptance of this Consulting Agreement.
APPLIED DATA COMMUNICATIONS, INC.,
a Delaware corporation
Date: 12/6/1999 /s/ Xxxxxx X. Xxxx
Water J. ("Xxx") Xxxx, President
AGREED AND ACCEPTED: Xxxxxx X. Xxxxx
Date: 12/6/99 /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
AGREEMENT
WHEREAS, Applied Data Communications, Inc. ("ADC" or the "Company") requires
additional financing to capitalize on business opportunities, presently
available to it, and Xxxxxx X. Xxxxx ("Xxxxx") is willing to provide assistance
in facilitating contacts through whom such financing could be made available to
ADC,
NOW THEREFORE, ADC and Colin (collectively "Parties"), in exchange for the
foregoing and other good and valuable consideration, do hereby agree and
covenant as follows:
1. Duties of Colin.
Colin agrees to arrange introductions to sources of potential financing for ADC,
through his personal contacts and such other parties ("Business Associates") as
he deems appropriate for the purposes indicated herein, and to facilitate
negotiations regarding potential financing arrangements, either equity or debt
in nature. Parties shall agree, prior to introduction by Colin to ADC of
potential financing sources, whether such sources are previously known to ADC,
and would be excluded from the terms of this Agreement, for purposes of
compensating Colin.
2. Duties of ADC.
ADC agrees to make available 1) information and documentation regarding Company
activities, and 2) access to members of its management to discuss Company
affairs and plans with potential financing sources arranged by Colin. Such
information, documentation and/or meetings with management will be arranged as
is mutually convenient to the parties.
3. Compensation.
ADC agrees that should Colin, his Business Associates ("Lenders") or family
members elect to provide such financing, as either debt or equity in form, ADC
will provide Colin options ("Options") to purchase registered common stock
("Shares") of ADC, at the rate of one Share for every dollar in financing
provided by financing sources introduced to ADC by Colin. Such Options to
acquire Shares shall carry an exercise price of $.80 per share, and shall have a
life of twenty-four months from March 31, 2001. Options granted hereunder, shall
be subject to a maximum total of 1.5 million options, regardless of total
financing provided.
4. Financing Acceptance.
Acceptance or rejection of financing proposals, whether debt or equity in
nature, arising from contacts introduced by Colin to ADC, shall be at the sole
discretion of ADC.
5. Non Circumvention.
ADC agrees that it will not circumvent Colin regarding negotiations for
financing with parties introduced by Colin to ADC. ADC agrees that it will
advise Colin of all discussions held between the Company and sources introduced
by Colin, and will notify him promptly of any financial transactions effected.
ADC further agrees, that for a period of two years, any subsequent financings it
concludes with parties introduced by Colin, will be subject to provisions
herein.
6. Legal and Collection Fees.
ADC agrees to compensate Colin for reasonable legal and collection fees, in the
event that legal action is taken by Colin to effect collection of fees and
compensation as provided herein, and claims asserted by Colin for such
compensation are upheld as provided herein.
7. Modification.
Thee terms of this Agreement shall not be varied, altered or modified except in
writing signed by authorized representatives of by ADC and Colin.
8. Jurisdiction, Arbitration.
The provisions of this Agreement are to be construed according to, and are to be
governed by the laws of the State of California.
IN WITNESS WHEREOF, Parties acknowledge their agreement with the aforementioned
terms and conditions, by their signatures, as indicated below.
Applied Data Communications, Inc.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxx J. "Xxx" Xxxx Xxxxxx X. Xxxxx
Its: Chief Executive Officer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Date: 3/31/01 Date: 3/31/2001
