Exhibit 10.5
Xxx Xxxxxx Associates Page 1
ADVA INTERNATIONAL INC CONSULTING AGREEMENT
ADVA is a Delaware Corporations in the business of developing and marketing
software for the LINUX OS marketplace.
PREAMBLE: This is an agreement, effective as of April 1, 2002 between Xxx Xxxxxx
Associates of 0000 Xxxxxx Xx., Xxxxxxxxx XX 00000 ("Consultant"), and ADVA / GIG
of BTC, Suite 214 Rock Hill, SC ("Client").
PURPOSE: Client wishes to retain the services of Consultant to advise and
consult Client in capacity as a financial advisor relative to Client's
businesses(s), and Consultant is willing to provide such services.
1. Consultant agrees, subject to Section 7, that for a period of six (6) months,
commencing with the effective date of this Agreement, he will, consistent with
his other obligations, render to Client such financial consulting services as
Client may request relating to the field as set forth in Exhibit A.
2. Client agrees to reimburse Consultant for such consulting services at the
monthly rates shown In Exhibit B, attached Rates. Consultant shall invoice
Client monthly for services rendered, and such invoices shall be payable upon
receipt. Invoices shall include work provided and a brief description of the
services rendered. Upon adequate substantiation, Client will reimburse
Consultant for all reasonable travel and related expenses incurred by Consultant
in connection with any requested business travel by Client. Prior written
approval (direct e mail and fax shall suffice) by Client shall be required for
all travel outside the states of North and South Carolina in connection with
this Agreement.
3. Consultant shall act as an independent Consultant and not as an agent or
employee of Client and Consultant shall make no representation as an agent or
employee of Client except as directed by the CEO and or President and agreed to
in writing by Consultant. See Exhibit C Limitation of Liability.
4. Consultant shall be responsible for all taxes as an independent contractor.
Consultant shall have no authority to bind Client or incur other obligations on
behalf of Client unless otherwise directed in writing by the CEO and or
President.
5. Any and all improvements, inventions, discoveries, formulas, processes, or
methods within the scope of the business activities of the Company, or any of
its affiliates (as such term is defined in Rule 405 under the Securities Act of
1933) which Consultant may conceive or make during his consultation period with
the Company shall be the sole and exclusive property of the Company or such
affiliates. Consultant agrees, whenever requested to do so by the Company and at
its expense, to execute and sign any and all applications, assignments, or other
instruments, and to do all other things which the Company may deem necessary or
appropriate in order to apply for patent or other protection in the United
States or any foreign country for such improvements, discoveries, formulas,
processes, or methods.
6. Consultant agrees to hold all Client Proprietary Information in confidence
and to treat the Proprietary Information with at least the same degree of care
and safeguards that he takes with his own proprietary information. Consultant
shall use proprietary Information only in connection with services rendered
under this Agreement. Proprietary Information shall not be deemed to include
information that (a) is in or becomes in the public domain without violation of
this Agreement by Consultant, or (b) is already in the possession of Consultant,
as evidenced by written documents, prior to the disclosure thereof by Client, or
(c) is rightfully received from a third entity having no obligation to Client
and without violation of this Agreement by Consultant.
7. Consultant warrants that he is under no obligation to any other entity that
in any way conflicts with this Agreement, that he is free to enter into this
Agreement, and is under no obligation to consult for others in areas covered by
this Agreement. Consultant shall not, during the term of this Agreement, perform
consulting services for others in areas of LINUX software development and sales
but shall have the right to perform consulting services for others outside of
this specialty.
8. Client or consultant may terminate this Agreement at any time on thirty (30)
days advance written notice. Any and all equipment, computers, services or
products provided for the Consultant by the Client are to be used solely in the
commission of the Consultant's services for the Client and remain the property
of the Client. Client shall not be held liable for any illegal use of said
products or services, or use unrelated to Clients business, by the Consultant or
any resulting legal action.
9. The secrecy provisions of Section 5 hereof shall survive any termination of
this Agreement for a period of three (3) years after such termination.
10. This Agreement is not assignable by either party without the consent of the
other.
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Signed: Signed:
/s/ Xxxxxx X Xxxxxx /s/ Xxxxx X. Xxxxxxxx
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For: Xxx Xxxxxx Associates (Consultant) ADVA INTERNATIONAL INC (Client)
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Date: 5/3/02 Date: 5/3/02
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I.I EXHIBIT A
Consulting Services
It is anticipated that the services provided by the Consultant to the Client
shall encompass the following tasks and responsibilities. (This list should not
be considered inclusive):
1. Responsibilities
a. Essential Duties
i. As a financial Consultant to the CEO and President, Consultant will
coordinate the creation of business plans and help in overseeing financial
investments and expenditures and perform controller duties.
ii. Consultant will help establish and oversee financial systems and controls to
ensure compliance for all lines of business and monitor financial procedures to
meet business objectives.
iii. Consultant will assist in the creation, implementation and adherence to
company financial policies and procedures, government regulations, sound
accounting practices (GAAP) and tax and reporting as they relate to company
financial activities.
iv. Consultant will advise and assist in the coordination of the Corporation's
outside auditing firm and corporate and SEC attorneys relating to all financial
and SEC reporting issues.
v. Consultant will advise regarding potential financial liabilities faced by the
Company on all fronts, and work with the executive management team to mitigate
these liabilities, especially as situations arise which may influence and effect
the investment community.
b. Additional Duties
i. Assist in raising capital in private and public capital markets including
successive stages of corporate financial development.
ii. Assist in Investor relation's activities.
iii. Advise in the management of the Corporation's insurance, financing, and
investment policies and programs.
I.2 EXHIBIT B
Compensation Rates & Rules
Consultant Fees & Expenses
1. Payments to the Consultant by the Client will be at the rate of $50.00 per
hr. US ($4,300) per month based on a minimum of 86 hours per month. Additional
hrs. at Client's request exceeding 86 hrs per month will be reimbursed at a rate
of $75.00 per hr.
2. Consultant will provide a monthly invoice at the end of month worked
outlining efforts undertaken over this period, Invoice shall be payable upon
receipt by Client.
3. Expenses will be billed by Consultant and paid by the Client separately.
4. Monthly status briefs in "bullet point" format shall be provided to the
Client along with invoices.
Stock Options*
22,917 option shares vested in (4) parts:
6,250 shares February 1, 2002 (reinstated from prior contract dated 1 May,2001)
6,250 shares May 1, 2002 (reinstated from prior contract dated 1 May, 2001)
6.250 shares August 1,2002
6,250 shares October 1, 2002
*Consultant will be included in ADVA Incentive Stock Plan.
Exhibit C: Limitation of Liability
This Exhibit, effective as of May 1, 2002, by and between ADVA International
Inc. and Xxx Xxxxxx Associates relative to an Agreement between the same dated
May 1, 2002 ("Consulting Agreement");
The parties agree that:
1. Effect of Exhibit. This Exhibit is a modification of the Agreement only to
the extent specifically provided. If there is any conflict between the terms of
this Exhibit and the terms of the Agreement, the terms of this Exhibit shall
control. Otherwise the terms of the Agreement shall remain in full force and
effect as provided therein. Terms used in this Exhibit that are defined in the
Agreement shall have the meanings given to them in the Agreement.
2. Limitation of Liability. To the maximum extent permitted by applicable law,
in no event shall the Consultant or his suppliers be liable for any special,
incidental, indirect, or consequential damages whatsoever (including, without
limitation, damages for loss of business profits, business interruption, loss of
business information, or any other pecuniary loss) arising out of the failure to
provide advice, support services or products, even if the Consultant has been
advised of the possibility of such damages. In any case, the Consultant's entire
liability under any provision of this Agreement shall be limited to the monetary
fees charged for the specific advice, service or product in question as provided
by this Agreement.
3. Limitation of Claims. No claim, regardless of form, which in any way arises
out of this Agreement or the parties' performance of this Agreement may be made,
nor action based upon such a claim brought, by either party more than one (1)
year after the termination of this agreement or basis for the claim becomes
known to the party desiring to assert it, which ever is shorter.
4. Force Majeure. Each party's performance of this Agreement is subject to
interruption and delay due to causes beyond its reasonable control such as acts
of God, acts of any government, war or other hostility, the elements, fire,
explosion, power failure, equipment failure, industrial or labor dispute,
inability to obtain necessary supplies, health, personal emergencies and the
like. In the event of such interruption or delay, the period of performance
shall be extended for a period of time equal to the interruption or delay;
provided, however, that, if any such interruption or delay continues for more
than ninety (90) days, the party whose performance is not affected may terminate
this Agreement immediately upon giving written notice of termination to the
other party.
5. Assignment. Neither this Agreement nor any part or portion hereof shall be
assigned, sublicensed or otherwise transferred by either party without the other
party's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
6. Severability. Should any provision of this Agreement be held to be void,
invalid, unenforceable or illegal by a court, the validity and enforceability of
the other provisions shall not be affected thereby.
7. Non-Waiver. Failure of either party to enforce any provision of this
Agreement shall not constitute or be construed as a waiver neither of such
provision nor of the right to enforce such provision.
8. Notices. All notices required to be given under this Agreement shall be given
in writing by personal delivery or by certified or registered mail to ADVA
International Inc. 000 X Xxxxxxxx Xx. Xxxxx 000 Xxxx Xxxx, XX 00000, or such
other address as (Client) may designate and to Xxx Xxxxxx Associates 0000 Xxxxxx
Xx. Xxxxxxxxx,XX 00000, or such other address as Consultant may designate.
9. Choice of Law. This Agreement shall be governed by and interpreted under the
laws of the state of North Carolina.
10. Headings and Captions. The headings and captions contained in this Agreement
are inserted for convenience only and shall not constitute a part hereof
In WITNESSOF, the parties have executed this Exhibit:
Signed: /s/ Xxxxxx X Xxxxxx Signed: /s/ Xxxxx X. Xxxxxxxx
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Xxxxxx X Xxxxxx ADVA International Inc.
Date: 5/3/2002 Date: 5/3/2002
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