EXHIBIT 10.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (this "Agreement") is dated as of the
17th day of February 2003 as amended as of August 1, 2003 and February 1, 2004
between Xxxxx Capital Ventures LLC ("Xxxxx", "we", or "us") and Magnadata, Inc.
(the "Company" or "you").
In consideration of the following mutual covenants, and intending to be
legally bound, the parties agree as follows:
1. Services. (a) During the term of this Agreement, we will provide the Company
with executive and financial management services. These services may include
industry research, strategic analysis, business planning, negotiation and
closing of acquisitions, strategic relationships, and financing transactions,
budgeting and financial planning, and operations management. The exact services
to be provided will be periodically determined by the Company and us. None of
our services will be deemed to constitute legal representation, auditing, or tax
services, and you agree that the Company will consult appropriately licensed
attorneys or certified public accountants, respectively, on all material legal,
auditing, and tax matters involving the Company. We will assist you in a private
placement of securities, but we will not sell securities in any public offering.
(b) For us to provide our services, you must promptly provide us with
information that we request, as well as allow us access to the Company's
officers, auditors, and legal counsel.
(c) Our services will generally be performed at our offices, although we expect
to meet with your officers, directors, employees, auditors, and legal counsel at
their respective offices and to provide other services at your offices or other
locations from time to time.
2. Personnel. Our services will be performed by our employees or by other
persons engaged and paid by us. We reserve the right to determine and change the
personnel assigned to this engagement at any time.
3. Nature of Engagement. In the performance of our services under this
Agreement, both Xxxxx and our employees and representatives will be independent
contractors. This Agreement does not give Xxxxx or any of our employees or
representatives any authority to bind the Company to any contractual
arrangement.
4. Consulting Fees. (a) You will pay us a retainer in the amount of $3,750.00
for each calendar month during the term of this Agreement until you pay us a
total of $15,000 in the aggregate. Xxxxx agrees that the $15,000 has been paid
by the Company. If the Company raises at least $2,250,000 from sales of
securities after the date of this Agreement, the Company will again begin paying
Xxxxx $3,750.00 per month for each month remaining during the term of this
Agreement commencing the month in which the total raised since February 1, 2004
is $2,250,000 or greater. Of that amount, $2,750 per month shall be for services
and $1,000 shall be for us allowing the Company to share our office space. If
the term of this Agreement commences after the 15th of the month or ends before
the 15th of the month, then the monthly retainer for the first or last month
will be reduced by 50%.
(b) The retainer for the first calendar month of this engagement is due and
payable upon the execution of this Agreement. The monthly retainer for
subsequent months must be paid to and received by us on or before the 15th day
of the calendar month to which it relates.
5. Expenses. (a) In addition to our retainer under Section 4, you will reimburse
us for direct out-of-pocket expenses related to the consulting services,
including travel, long distance and cell phone charges, shipping, and third
party printing and document production costs. You will not be charged a fee for
general office overhead. We will work with you to control these expenses in
accordance with reasonable business practices.
(b) You will provide us with Company letterhead and business cards (as
appropriate) for use in performing the services.
(c) We will periodically submit to you reasonable documentation for expenses
subject to reimbursement. You will pay us the amount of the expense
reimbursement within three business days of your receipt of this documentation.
If you believe that any individual item is not subject to reimbursement, you
must pay us the amount not in dispute and notify us of your objection within
three business days of your receipt of the documentation. Failure to object
within the three business day period will be deemed your acceptance of our claim
for reimbursement.
(d) We reserve the right to require you to pay any out of pocket costs directly
or to require you to pay us an advance against expenses.
6. Late Payments. (a) Any payments due under Section 4 or Section 5 that are not
paid when due will bear interest from the due date until paid in an amount equal
to the lesser of 1 1/2% per month, compounded monthly, or the maximum rate
permitted under applicable law. If we engage attorneys or commence legal action
to collect any overdue payment, you must pay to us all legal fees and court
costs that we incur in collecting the overdue amounts. All payments will be
applied first to pay costs of collection, then to accrued and unpaid interest,
and then to pay any outstanding amounts due.
(b) In addition to any other remedy available under this Agreement, at law, or
in equity, if you fail to pay us any amount when due, we may suspend performance
of our services until all overdue fees have been paid in full. Suspension of our
services under this section does not suspend or reduce your obligation to pay
our retainer.
7. Confidentiality. (a) We will maintain the confidentiality of your
Confidential Information during the term of this Agreement and for a period of
one year thereafter. We may disclose Confidential Information to our employees
and representatives as necessary to provide the services, provided that they
have agreed to protect your Confidential Information in accordance with this
Agreement. We may also disclose Confidential Information if required by a court
or governmental agency, but we will use commercially reasonable efforts to
inform you prior to disclosure.
(b) "Confidential Information" means information concerning the Company and your
business that is (i) disclosed in a writing marked "confidential" or (ii)
disclosed orally and identified as "confidential" in writing prior to or within
two days following disclosure. Confidential Information does not include
information (i) that is or becomes publicly available or generally known to
persons in your industry without breach of our obligations under this section,
(ii) in our possession as of the date of this Agreement, (iii) received by us
after the term of this Agreement, (iv) received from persons having no
obligation of confidentiality to you, or (v) that we independently develop
without reference to any Confidential Information.
(c) We will use reasonable precautions to protect the Confidential Information,
but we have no obligation to employ any measures not regularly employed by the
Company in protecting your Confidential Information.
8. Liability and Indemnification. (a) None of Xxxxx nor our officers, directors,
employees, agents, counsel, representatives, nor any person performing the
services (each, an "Indemnitee") will be liable to you for any liability, loss,
claim, action, cause of action, settlement, or other cost or expense
(collectively, "Liabilities") for any acts or omissions that are taken or
omitted in connection with the performance of this Agreement.
(b) You must indemnify each Indemnitee from and against all Liabilities arising
out of or relating to our services. You will also indemnify each Indemnitee for
all costs and expenses (including fees of counsel selected by the Indemnitee)
incurred in defending any claim for which the Indemnitee is entitled to
indemnification. You must advance all costs to the Indemnitee on demand so long
as the Indemnitee has agreed to reimburse you if a court finally determines that
the Indemnitee was not entitled to indemnification.
(c) The provisions of Sections 8(a) and 8(b) will not apply if, but only to the
extent that, a court determines that the Indemnitee did not act in good faith
and (i) the Indemnitee received a financial benefit to which he was not entitled
or (ii) with intent to cause harm to the Company or your business.
9. Term. (a) The term of this Agreement will begin on the date first set forth
above and will continue until March 31, 2005, unless terminated sooner in
accordance with this section.
(b) Either party may terminate this Agreement without cause upon 30 days prior
written notice to the other.
(c) Either party may terminate this Agreement upon ten days prior written notice
to the other upon if the other party defaults with respect to any obligation
under this Agreement, provided that this Agreement will not terminate if the
default is cured in full within that ten day period.
(d) The termination of this Agreement will not affect your obligation to pay us
any amount due under this Agreement or our respective rights and obligations
under Section 7 and Section 8.
10. Entire Agreement; Amendment. This Agreement and the option agreement for the
options (if any) to be issued pursuant to this Agreement represent the entire
agreement and understanding between us concerning our services and supersede all
prior and contemporaneous agreements, understandings, representations and
warranties. This Agreement may not be amended, changed or modified except by a
written instrument executed by or on behalf of both you and us.
11. Assignment. You may not assign this Agreement to any other party without our
prior written consent, except that you may assign this Agreement to any party
that acquires substantially all of the assets and the goodwill of the Company.
12. Binding Effect; No Third Party Beneficiaries. This Agreement is binding upon
and inure to the benefit of the parties and our respective heirs, legatees,
executors, administrators, legal representatives, successors, transferees and
assigns. No person other than the parties to this Agreement and the Indemnitees
has any legal or equitable right, remedy or claim under this Agreement.
13. Waivers and Consents. No waiver of any breach of any of the terms of this
Agreement, nor any consent required or permitted to be given hereunder, will be
effective unless in writing and executed by or on behalf of the party or parties
against whom the waiver or consent is to be enforced. No waiver of any breach
nor consent to any transaction will be deemed a waiver of or consent to any
other or subsequent breach or transaction.
14. Notices. Any notice required or permitted under this Agreement must be in
writing and will be deemed given if (i) personally delivered, (ii) sent by
facsimile transmission to the party for whom such notice is intended at the fax
number set forth below, or (iii) sent by registered or certified U.S. Mail, or
by nationally recognized delivery service, postage prepaid, to the party for
whom such notice is intended at the address set forth below. Either party may
change the address or fax number by giving notice of to the other party in the
manner provided in this Section.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of North Carolina applicable to agreements
made by residents of that state and wholly performed in that state.
16. Arbitration. Any dispute or claim under this Agreement or otherwise relating
to our services must be resolved by arbitration in Orange County, North Carolina
under the rules of the American Arbitration Association then in effect. A
judgment on any arbitration may be entered in any court in North Carolina or any
other state or country having appropriate jurisdiction.
17. Construction and Interpretation. (a) Each party has had the opportunity to
consult with legal counsel regarding the provisions of this Agreement. Every
covenant, term and provision of this Agreement will be construed according to
its fair meaning and not strictly for or against any party or parties.
(b) When used in this Agreement, the term "including" means "including, but not
limited to".
(c) All pronouns and any variations thereof refer to masculine, feminine or
neuter, singular or plural, as the identity of the person or persons may
require.
(d) Captions of the several sections of this Agreement are for reference
purposes only, are not intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof, and will not
control or alter the meaning of this Agreement as set forth in the text.
18. Counterparts. This Agreement may be executed in any number of counterparts
and all executed counterparts will constitute one agreement binding on all
parties to this Agreement, notwithstanding that all parties have not signed the
same counterpart.
IN WITNESS WHEREOF, this Agreement is executed and effective as of the date
first above noted.
XXXXX CAPITAL VENTURES LLC MAGNADATA, INC.
By: /S/ Xxxxx Xxxxx By: /S/ Xxxxx Xxxxxxx
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Xxxxx Xxxxx Xxxxx Xxxxxxx
000 Xxxxxx Xxxxx ____________________________
Xxxxx 000 XXXXXXX
Xxxxxx Xxxx, XX 00000 ____________________________
Fax: (000) 000-0000
___________________________
FAX NO.
