CONSULTING AGREEMENT
Exhibit
10.26
August
02, 2006
AGREEMENT
dated as of August 02, 2006 by and between INTERACTIVE SYSTEMS WORLDWIDE INC.,
a
Delaware corporation with its principal place of business at 0 Xxxxxxx Xxxxx,
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 (the “Company”) TECHMATICS (“Consultant”) having
a business address at 000 Xxx Xxxxxxxx Xx, Xxxx XX0, Xxxx Xxx, Xxx Xxxxxx
00000.
In
consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Retention.
Upon
the terms and conditions hereinafter set forth, Company hereby retains
Consultant as an independent consultant on a non-exclusive basis, to perform
the
following design, development and consulting services herein described (the
“Services”) when and if requested by Company. Consultant, as an independent
contractor, shall at Company’s request:
(a) Consulting
services in connection with the patent infringement suit with Progressive
Gaming, Inc. concerning the Company’s intellectual property. Specific activities
can include meetings with Company on strategy, meetings with Company’s legal
counsel(s), assistance in selecting alternate counsel on a more cost effective
basis, appearances for depositions or a witness, preparation in conjunction
with
these activities, and other services which may be appropriate with this legal
proceeding.
(b) A
design
study on an extension to Company’s current in-running methodology that turn it
into an odds compiler, betting line provider, and automated betting imbalance
layoff service for use by bookmakers who may or may not use Company’s services
for obtaining betting odds and opening lines.
(c) Design
studies on extensions of Company’s basic technology into other uses in gaming,
competitions and other appropriate activities.
(d) Assistance
identifying potential merger and acquisition candidates for the Company and
in
facilitating the accomplishment of such corporate combinations.
(e) Assistance
in identifying the sources of additional corporate and in effectuating the
raising such funds.
(f) Such
other consulting services as might be requested and are appropriate for the
personnel that are provided by Consultant.
Services
will be provided on a mutually agreeable schedule and with such prior notice
as
is reasonable. Services will be generally provided in the New York Metropolitan
area, although travel out of the designated area is possible, availability
permitting.
2. Consultant
agrees to use his best efforts, skills and abilities in the performance of
the
Services hereunder and to promote the best interests of Company.
3. Term.
The
term of this Agreement shall be a period commencing on July
1,
2006 and ending on June 30, 2007 (the “Term”). This Agreement may be terminated
by the Company at any time with or without cause upon two days prior written
notice to the Consultant.
4. Consultant’s
Employee.
Consultant agrees to cause Xxxxx Xxxxxx, an employee of Consultant, to perform
all of Services on behalf of Consultant.
5. Fee.
(a) For
all
Services hereunder, Consultant shall be paid as follows: (i) an upfront
non-refundable fee of $29,000 (“Retainer”) payable within 10 business days after
the date hereof. Consultant shall be paid at the hourly rate of $360 per hour
for Services performed by Xxxxx Xxxxxx, which hourly rate shall be set of
against the Retainer until the aggregate amount of the Retainer has been offset
at such hourly rate. Consultant shall not perform any Services for Company
after
the Retainer has been fully offset without the prior written consent of
Company.
(b) The
Company shall provide to Consultant the Company’s existing Toshiba portable
computer and the Canon i9900 printer previously used by Xxxxx Xxxxxx for use
in
performing the Services. Consultant at its option may purchase the portable
computer and Canon i9900 printer in AS-IS condition at the end of the one-year
term of this Agreement for $300, failing which Consultant shall promptly return
same to the Company.
(c) Company
shall also pay any actual out-of-pocket expenses paid or incurred by Consultant
in connection with the performance by Consultant of the Services, including
but
not limited to travel and entertainment expenses (but excluding any expenses
relating to travel by automobile other than for parking) provided that the
incurrence of such expenses are approved in advance by Company.
(d) Consultant
shall submit monthly invoices to the Company specifying the number of hours
worked and out of pocket expenses incurred together with appropriate
substantiation for the hours worked and expenses incurred. Each such invoice
shall be paid to the extent it relates to expenses, or used as an offset against
the Retainer to the extent that it relates to hours worked, as provided above,
unless such invoice disputed within 30 days after receipt.
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(e) Consultant
shall pay all Federal, state and local income, social security, medicare, and
any other taxes payable with respect to all compensation or fees paid to
Consultant hereunder.
(f) Upon
expiration or termination of this Agreement, the Consultant shall not be
entitled to any further payment of the Retainer or any other compensation for
the Services.
6. Releases.
(a) In
consideration of the execution of this Agreement and the payments described
above, Consultant and Xxxxx Xxxxxx, on their own behalf and on behalf of its,
his or their successors, heirs, executors, administrators and assigns, and
each
of them, hereby release the Company (including each of its subsidiaries and
affiliates, as well as its and their managers, directors, officers, agents,
attorneys, employees, members, stockholders, representatives, assigns, and
successors, past and present and each of them (collectively, the “Company
Releasees”), from and with respect to any and all complaints, claims, rights,
contracts, agreements and actions, known or unknown, which Consultant or Xxxxx
Xxxxxx ever had, now have or may have against the Company and/or any of the
Company Releasees, including but not limited to any claim for vacation pay
while
Xxxxx Xxxxxx was employed by the Company, and Consultant and Xxxxx Xxxxxx
further release and waive any other claim or cause of action recognized in
law
or equity which it, he or they had or now have against the Company or any
Company Releasees arising out of conduct, acts or omissions of the Company
or
any Company Releasees occurring prior to the execution date of this Agreement
(collectively the “Released Claims”), except for claims for enforcement of their
rights under this Agreement and for any rights, obligations or claims Xxxxx
Xxxxxx has against the Company for enforcement of the terms of the Employment
Agreement between the Company and Xxxxx Xxxxxx dated December 30, 2003 (the
“Employment Agreement”) and the Proprietary Information, Invention and
Non-Solicitation Agreement dated May 22, 1995 (the “Proprietary Information
Agreement”).
(b) In
consideration of the execution of this Agreement, the Company on its own behalf
and on behalf of each of the Company Releasees, hereby releases Consultant
and
Xxxxx Xxxxxx and their heirs, executors, administrators, successors and assigns
(“Employee Releasees”) from and with respect to any and all complaints, claims,
rights, contracts, agreements and actions, known or unknown, which the Company
ever had, now has or may have against the Employee Releasees, and further
releases and waives any other claim or cause of action recognized in law or
equity which the Company had or now has against the Employee Releasees, arising
out of conduct, acts or omissions of Xxxxx Xxxxxx or any Employee Releasee
occurring prior to the execution date of this Agreement except for claims for
enforcement of the Company’s rights under this Agreement and for any rights,
obligations or claims the Company has against the Employee for enforcement
of
the terms of the Employment Agreement and the Proprietary Information
Agreement.
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7. Confidentiality;
Non-Disparagement; Non-Solicitation.
(a) Consultant
and Xxxxxx agree (i) that the information contained in this Agreement is
confidential and, except as required by law, neither Consultant nor Xxxxxx
will
disclose the terms hereof to anyone, except that Consultant and Xxxxxx may
disclose the terms of this Agreement to their spouse, attorney or accountant,
and as necessary to enforce their rights under this Agreement, the Employment
Agreement and Proprietary Information Agreement, and (ii) that Consultant
and Xxxxxx will not do or say anything that could reasonably be expected to
impact negatively on the name or reputation in the market place of the Company
or any of the Company Releasees, nor will Consultant and Xxxxxx make any
disparaging comments or statements to anyone about the Company or any Company
Releasee; provided that nothing herein shall preclude Consultant or Xxxxxx
from
responding truthfully to legal process or testifying truthfully in any legal
or
regulatory proceeding provided you promptly inform the Company of any such
obligation prior to participating in any such proceedings. Consultant and Xxxxx
Xxxxxx shall return to the Company immediately all property of the Company,
including without limitation, all Company files, client lists, studies,
memoranda, correspondence, and other documents prepared, received or used by
you
in connection with your employment by the Company and all copies thereof,
whether in written or electronic form.
(b) The
Company agrees (i) that the information contained in this Agreement is
confidential and, except as required by law, the Company will not disclose
the
terms hereof to anyone, except that it may disclose the terms of this Agreement
to its directors, attorneys, accountants, and any employees with a need to
know
of the terms hereof, and as necessary to enforce its rights under this
Agreement, the Employment Agreement and Proprietary Information Agreement,
and
(ii) that the Company will not do or say anything that could reasonably be
expected to impact negatively on the reputation in the market place of
Consultant or Xxxxx Xxxxxx, nor will the Company make any disparaging comments
or statements to anyone about Consultant or Xxxxx Xxxxxx; provided that nothing
herein shall preclude the Company from responding truthfully to legal process
or
testifying truthfully in any legal or regulatory proceeding provided the Company
promptly inform you of any such obligation prior to participating in any such
proceedings.
8. Unenforceable
Provisions.
If, at
any time after the date of this Agreement, any provision of this Agreement
shall
be held by any court of competent jurisdiction to be illegal, void, or
unenforceable, such provision shall be of no force and effect. The illegality
or
unenforceability of such provision, however, shall have no effect upon, and
shall not impair the enforceability of, any other provision of this
Agreement.
9. Choice
of Law.
This
Agreement shall be governed by the internal laws of the State of New Jersey
without regard to any principles of conflicts of laws.
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10. Entire
Agreement.
This
Agreement represents the entire agreement of the parties with respect to the
subject matter hereof and supercedes all prior and/or contemporaneous
agreements, understandings and discussions, written or oral, between the parties
with respect to the subject matter hereof, except as specifically provided
herein. This Agreement may be amended or modified only by a written amendment
signed by the parties hereto.
11. No
Admission.
Nothing
contained in this Agreement shall be deemed to be an admission by Consultant
or
Xxxxxx or the Company of any wrongdoing or liability to the other.
12. Counterparts.
This
Agreement may be signed in counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same
instrument.
To
accept
this Agreement, please sign the enclosed copy of this letter and return it
to
us. This Agreement may be executed in counterparts.
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Sincerely
yours,
Interactive
Systems Worldwide Inc.
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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Name: Xxxxxxx Xxxxxxxx |
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| Title: Chief Executive Officer | ||
Agreed
to
and Accepted:
Techmatics
Inc.
By: /s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman
_____________________________________
Xxxxx
Xxxxxx
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