EXHBIT 4.1.2
CONSULTANTS AND ADVISORS COMPENSATION PLAN
CONFIDENTIALITY AGREEMENT AND GRANT OF OPTIONS AND SHARES
THIS AGREEMENT is executed as of this 2nd day of January,
2001, by and between DIGITAL DESCRIPTOR SYSTEMS, INC., a Delaware corporation
(the "Company"), and The Advocacy Groupl ("the Consultant", which shall include
"Advisors").
RECITALS
The Company desires to retain the Consultant, and the
Consultant desires to offer services to the Company, on the terms and conditions
set forth herein.
The parties believe it is in their best interests to make
provision for certain aspects of their relationship during and after the period
in which the Consultant offers services to the Company.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Company and the Consultant,
IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE I
ENGAGEMENT
1.1 Term of Engagement. The Consultant shall perform advisory
and consulting services for the Company, for the period commencing on the date
hereof and ending on January 2, 2002 subject to earlier termination as
hereinafter set forth in Article III (the "Engagement").
1.2 Consulting Duties. The Consultant shall furnish consulting
and advisory services concerning government and political matters and such
matters related to the business of the Company as may from time-to-time be
requested by the Company, including, without limitation, administration,
marketing, sales and new product and service development.
1.3 Independent Contractor Status.
(a) Each party shall remain solely responsible and
liable for compliance with all local, state and federal laws and regulations
including, without limitation, federal and state securities laws.
(b) Neither party shall have any liability or
obligation of any kind for claims brought upon the other as a result of either
party carrying out the terms of this Agreement. Furthermore, the Consultant
agrees and acknowledges that he or she shall have no right to unemployment
compensation by virtue of the independent contractor relationship created
hereunder.
(c) The parties hereto acknowledge that their
relationship shall be that of an independent contractor rather than that of
employee, agent, partnership, or a joint venture. Each party shall report
payments hereunder to all governmental agencies as that of an independent
contractor with the Company reporting amounts paid to Consultant on Form
1099-MISC (or successor form thereto) and in no event shall Company treat or
report amounts paid to Consultant as amounts paid to an employee. Neither the
Company nor the Consultant shall in any way become obligated for the debts or
expenses of the other, unless otherwise agreed in writing. The Consultant shall
not have authority to bind the Company or otherwise execute any document on
behalf of the Company, nor shall the Consultant hold itself out to the public or
any third party as possessing such authority.
ARTICLE II
COMPENSATION
2.1 Fee. The Company shall pay the Consultant compensation
shares of the Company's common stock or options totaling 300,000 shares. The
Consultant shall not receive any further compensation, nor shall the Consultant
be eligible to participate in any employee benefit or welfare plans adopted or
sponsored by the Company. The Consultant shall submit to the Company itemized
monthly invoices which shall be due at net within 30 days of invoice date. The
Company shall reimburse the Consultant for documented expenses paid by the
Consultant which were preapproved in writing.
ARTICLE III
TERMINATION
3.1 Right to Terminate. The Company and the Consultants may
terminate the Engagement and all of the Company's obligations under this
Agreement at any time and for any reason.
3.2 Rights Upon Termination. If the Engagement is terminated
the Consultant shall have no further rights against the Company hereunder,
except for the right to receive (i) any unpaid Fee with respect to the period
prior to the effective date of termination, and (ii) reimbursement of expenses
to which the Consultant is entitled.
3.3 Continuing Obligation. The Consultant shall continue,
after termination, to be bound by the terms of Article IV below and State and
Federal Trading regulations on non-public information.
ARTICLE IV
CONFIDENTIALITY
4.1 Confidential and Non-Public Information; Intellectual
Property.
(a) Confidential Information. The Consultant will
acquire information of a confidential nature relating to the operation,
finances, business relationships and trade secrets of the Company, including,
but not limited to non-public information concerning the Company's financial and
business prospects. During Engagement and for a period of two years following
termination thereof, within the geographical area in which such use, publication
or disclosure could harm the Company's existing or potential business interests,
the Consultant will not use (except for use in the course of the Consultant's
authorized Engagement with the Company), publish, disclose or authorize anyone
else to use, publish or disclose, without the prior written consent of the
Company, any confidential and non-public information pertaining to the Company
or its affiliated entities, including, without limitation, any information
relating to existing or potential business, customers, trade or industrial
practices, plans, costs, processes, technical or engineering data, or trade
secrets, and financial information; provided, however, that following
termination of the Engagement, the Consultant shall be prohibited from ever
using, publishing, disclosing or authorizing anyone else to use, publish or
disclose, any confidential information which constitutes a trade secret under
applicable law. The Consultant shall not remove or retain any figures,
calculations, formulae, letters, papers, software, abstracts, summaries,
drawings, blueprints, diskettes or any other material, or copies thereof, which
contain or embody any confidential information of the Company, except for use in
the course of the Consultant's regular authorized duties on behalf of the
Company. The foregoing notwithstanding, the Consultant has no obligation to
refrain from using, publishing or disclosing any such confidential information
which is or hereafter shall become available to the public otherwise than by
use, publication or disclosure by the Consultant. This prohibition also does not
prohibit the Consultant's use of general skills and know-how acquired during and
prior to the Engagement, as long as such use does not involve the use,
publication or disclosure of the Company's confidential information.
4.2 Return of Documents. Immediately upon termination of the
Engagement, the Consultant will return to the Company, and so certify in writing
to the Company, all the Company's papers, documents and things, including
information stored for use in or with computers and software applicable to the
Company's business (and all copies thereof), which are in the Consultant's
possession or under the Consultant's control, regardless whether such papers,
documents or things contain confidential information or trade secrets.
4.3 Equitable Relief. The Consultant acknowledges that any
breach of this Agreement will cause substantial and irreparable harm to the
Company for which money damages would be an inadequate remedy. Accordingly, the
Company shall in any such event be entitled to obtain injunctive and other forms
of equitable relief to prevent such breach and to recover from the Consultant
the Company's costs (including without limitation reasonable attorneys' fees)
incurred in connection with enforcing this Agreement, in addition to any other
rights or remedies available at law, in equity or by statute.
ARTICLE V
GENERAL PROVISIONS
5.1 Notices. Any and all notices, consents, documents or
communications provided for in this Agreement shall be given in writing and
shall be personally delivered, mailed by registered or certified mail (return
receipt requested) or sent by courier, confirmed by receipt, and addressed as
follows (or to such other address as the addressed party may have substituted by
notice pursuant to this Section 5.1):
(a) If to the Company:
Digital Descriptors Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, President
(b) If to the Consultant:
The Advocacy Group ______
0000 "X" Xxxxxx
Xxxxx 000___________
Xxxxxxxxxx, XX 20005____
Such notice, consent, document or communication shall be deemed given upon
personal delivery or receipt at the address of the party stated above or at any
other address specified by such party to the other party in writing, except that
if delivery is refused or cannot be made for any reason, then such notice shall
be deemed given on the third day after it is sent.
5.2 Entire Agreement. This Agreement contains the entire
understanding and the full and complete agreement of the parties and supersedes
and replaces any prior understandings and agreements among the parties, with
respect to the subject matter hereof.
5.3 Amendment. This Agreement may be altered, amended or
modified only in a writing, signed by both of the parties hereto. Headings
included in this Agreement are for convenience only and are not intended to
limit or expand the rights of the parties hereto. References to Sections herein
shall mean sections of the text of this Agreement, unless otherwise indicated.
5.4 Assignability. This Agreement and the rights and duties
set forth herein may not be assigned by the Consultant, but may be assigned by
the Company, in whole or in part. This Agreement shall be binding on and inure
to the benefit of each party and such party's respective heirs, legal
representatives, successors and assigns.
5.5 Severability. If any court of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
then such invalidity or unenforceability shall have no effect on the other
provisions hereof, which shall remain valid, binding and enforceable and in full
force and effect, and such invalid or unenforceable provision shall be construed
in a manner so as to give the maximum valid and enforceable effect to the intent
of the parties expressed therein.
5.6 Waiver of Breach. The waiver by either party of the breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach by either party.
5.7 Governing Law; Construction. This Agreement shall be
governed by the internal laws of the Commonwealth of Pennsylvania, without
regard to any rules of construction concerning the draftsman hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year written above.
COMPANY:
DIGITAL DESCRIPTOR SYSTEMS, INC.
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By:
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Xxxxxxx X. Xxxx, President
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CONSULTANT:
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Xxxxx Xxxxx
