EX-10.4 CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Consulting Agreement, dated as of December 19, 2003, is made
by and between XXXXXX X. XXXXX, with business address of 0000 Xxxxx
Xxxxx Xxxxxx, Xxxx, Xxxxxxx 00000 ("CONSULTANT"), and XXXXX SPORTS
TURF, INC., with business address of 0000 00xx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("CLIENT"), a Delaware corporation.
RECITALS
A. CLIENT desires to retain CONSULTANT to render consulting and
advisory services for CLIENT on the terms and conditions set forth in
this Agreement and CONSULTANT desires to be retained by CLIENT on such
terms and conditions.
NOW, THEREFORE, CLIENT and CONSULTANT agree as follows:
1. Retention of Consultant; Services to be Performed. CLIENT
hereby retains CONSULTANT for the term of this Agreement to perform
the following consulting services for CLIENT ("Services"):
In rendering Services hereunder, CONSULTANT shall be acting as an
independent contractor and not as an employee or agent of CLIENT. As
independent contractors, neither CONSULTANT nor CLIENT shall have any
authority, express or implied, to commit or obligate the other in any
manner whatsoever, except as specifically authorized from time to time
in writing by an authorized representative of CONSULTANT or CLIENT, as
the case may be, which authorization may be general or specific.
Nothing contained in this Agreement shall be construed or applied to
create a partnership. CONSULTANT shall be responsible for the payment
of all federal, state or local taxes payable with respect to all
amounts paid to CONSULTANT under this Agreement.
2. Compensation for Consulting Services. For Services hereunder,
CLIENT shall pay to CONSULTANT a fee of $6,000 per month (prorated for
any partial months) and shall issue CONSULTANT a total of two million
(2,000,000) of CLIENT's common shares, registered under an effective
S-8 registration statement.
3. Expenses. CLIENT shall reimburse CONSULTANT for all reasonable
travel and other out-of-pocket expenses incurred by CONSULTANT in
rendering Services hereunder, provided that such expenses have been
approved in advance by CLIENT. Travel expenses shall include the cost
of any travel by personal vehicle to a location more than 100 miles
from CONSULTANT's primary work location, the costs of any travel
requiring public transportation, the costs of meals, and the costs of
necessary lodging. CLIENT shall pay such reimbursement within 30 days
after receipt of appropriate receipts or documentation of the expenses.
4. Billing. CONSULTANT shall invoice CLIENT monthly, providing a
listing of labor terms and expenses. Payment on invoices so provided
shall be due within ten (10) days of the invoice date.
5. Confidential Information. Confidential information of any
nature that either party acquires regarding any aspect of the other
party's business shall be treated in strict confidence. Information so
obtained shall not be divulged, furnished or made accessible to third
parties without the written permission of the other party to this
Agreement. Both parties retain the right to do business with third
parties in matters that may be competitive with the interests of the
other party to this Agreement. However, the confidentiality
constraints above shall be binding and have precedence over these
business matters. Upon termination of this Agreement, the terms of
this paragraph shall remain in effect for five (5) years.
6. Ownership of Intellectual Property. Intellectual property
rights of each party shall be governed by the following:
(a) CONSULTANT grants and assigns to CLIENT all rights to use any
work product and to develop, manufacture, market or otherwise
commercialize any product based on, directly related to or directly
making use of the Services;
(b) CONSULTANT agrees to promptly disclose to CLIENT all ideas,
designs, practices, processes, apparatus, improvements, inventions and
discoveries ("Inventions") by CONSULTANT made or first reduced to
practice in the course of performing Services to CLIENT;
(c) CONSULTANT agrees to assign, and does hereby assign to
CLIENT, all right, title and interest in and to all such Inventions.
CONSULTANT agrees to cooperate with CLIENT and to execute all proper
documents, at the expense (including time at the then current
compensation rate), of CLIENT, to enable CLIENT to obtain intellectual
property protection in the United States and foreign countries in the
Inventions;
(d) The foregoing subparagraph (c) shall not apply to any
Invention meeting the following conditions:
(1) Such Invention was developed entirely on CONSULTANT's
own time;
(2) Such Invention does not relate (i) directly to the business of CLIENT, or
(ii) to CLIENT's actual or demonstrably anticipated research or development;
and
(3) Such Invention does not result from any work performed by CONSULTANT
for CLIENT;
(e) CONSULTANT retains the royalty-free right to use an Invention
and incorporate it into any product in a field unrelated and
non-competitive with CLIENT. CLIENT retains the right to sell or
otherwise dispose of the rights, title and interests granted by this
Agreement as CLIENT sees fit; provided that this Agreement does not
limit the rights of CONSULTANT authorized under the foregoing
provision. CLIENT is obligated to notify CONSULTANT, in writing thirty
(30) days prior to such transfer.
(f) All right, title and interest in all copyrightable material
which CONSULTANT shall conceive or originate, either individually or
jointly with others, and which arise out of the performance of
Services under this Agreement shall be the property of CLIENT and are
by this Agreement assigned to CLIENT. CONSULTANT agrees to cooperate
with CLIENT and to execute all necessary documents at the expense
(including time at the then current compensation rate) of CLIENT to
assist CLIENT in obtaining and registering copyrights on such
materials in any and all countries. Where applicable, works of
authorship created by CONSULTANT for CLIENT in performing Services
under this Agreement shall be considered "works made for hire" as
defined in the U.S. Copyright Act;
(g) If, within 180 days after written disclosure of an Invention
by CONSULTANT to CLIENT, CLIENT does not file appropriate documents
with the United States Patent and Trademark Office ("USPTO") or any
other national or international agency for pursuing intellectual
property rights, including, but not limited to, patents or database
protection, CONSULTANT shall be free to independently file with the
USPTO after notifying CLIENT of CONSULTANT'S intended action. CLIENT
retains the right to use the patent, if issued, upon payment of a
negotiated royalty. However, CONSULTANT shall be free to sell rights
to third parties for use of the Invention; and
(h) CLIENT shall retain ownership of all notebooks, notes,
drawings and similar materials, including computer generated documents
generated by CONSULTANT in the performance of Services under this
Agreement. Intellectual property rights to all documents, drawings and
instruments of service, whether or not delivered to CLIENT under the
terms of this Agreement, shall remain CLIENT's property until all
terms of this Agreement are satisfied. Upon CLIENT's request, copies
of these items shall be delivered to CLIENT at CONSULTANT's expense.
All conditions of confidentiality of these documents shall be in
effect as defined elsewhere in this Agreement.
7. Term and Termination. Unless terminated at an earlier date,
this Agreement shall commence as of the date first written above and
shall continue until the fifth anniversary of this Agreement. Upon
any such early termination, CONSULTANT shall be entitled to receive
from CLIENT all fees and expenses incurred up to the date of
termination in accordance with the billing procedures set forth in
Section 4.
8. Indemnification. CLIENT agrees to indemnify, defend and hold
harmless CONSULTANT against any and all loss, liability, expenses and
costs (including attorneys' fees, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by CONSULTANT in
connection with any threatened, pending, completed or future action
suit or proceeding to which CONSULTANT is, or is threatened to be,
made a party arising from or related to Services that have been
provided hereunder. The terms of this Section 8 are non revocable and
shall survive the termination of this Agreement.
9. Disputes. Any action based on this Agreement, including
disagreement, disputes regarding the terms and conditions, alleged
breaches of contract, and remedies under contract, shall be governed
by the laws of the State of Georgia and shall be adjudicated
exclusively by a court of competent jurisdiction in Xxxxx County,
Georgia; provided however that any such disagreement or dispute will
be resolved by mediation, arbitration or another alternative dispute
resolution procedure if so requested in writing by either party to
this Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
hereof. This Agreement supersedes any and all prior agreements, oral
or written, between the parties with respect to the subject matter hereof.
(b) Severability. If any provision of this Agreement is for any
reason declared to be invalid or unenforceable, the validity and
enforceability of the remaining provisions shall not be affected
thereby. Such invalid or unenforceable provision shall be deemed
modified to the extent necessary to render it valid and enforceable,
and if no modification shall render it valid and enforceable, this
Agreement shall be construed as if not containing such provision and
the rights and obligations of the parties shall be construed and
enforced accordingly.
(c) Amendment, Waiver, Modification or Termination. No amendment,
waiver or termination or modification of this Agreement shall be
binding unless it is in writing and signed by both CONSULTANT and
CLIENT and dated subsequent to the date hereof.
(d) Assignment. This Agreement and the rights and obligations of
the parties hereunder shall not be assignable by either party without
prior written consent of the other party.
(e) 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 (d), successors and assigns of the parties hereto.
IN WITNESS WHEREOF, CLIENT and CONSULTANT have executed this Agreement
as of the date set forth in the first paragraph.
"CONSULTANT "
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
"CLIENT "
Xxxxx Sports Turf, Inc., a Delaware Corporation
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, President
