CHARTWELL INTERNATIONAL, INC. CONSULTING AGREEMENT
Exhibit 10.1
This Consulting Agreement (“Agreement”) is made and entered into as of March 12, 2007 by and
between Chartwell International, Inc., a Nevada corporation (the “Company”), and Entitlement
Solutions, Inc., a California corp., with an address of 0 Xxx Xxxxxxxxxxx, Xxxx Xx Xxxx, Xxxxxxxxxx
(“Consultant”).
RECITALS
WHEREAS, the Company previously engaged the Consultant as an independent contractor to perform
the services described in Exhibit A, attached hereto (the “Services”), and agreed to pay Consultant
the monthly cash compensation further set forth therein;
WHEREAS, the Company desires to continue retaining Consultant to perform the Services and
Consultant is willing to perform such Services, on terms set forth more fully hereunder;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained
herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to exclusively designate Mr. Xxxxxxx Xxxxxxx to perform for the Company
the services (“Services”) described in Exhibit A, attached hereto.
(b) The Company agrees to pay Consultant the compensation set forth in Exhibit A for
the performance of the Services.
(c) The scope of the Services and the compensation may be amended by upon mutual written
agreement by both parties.
2. CONFIDENTIALITY
(a) “Confidential Information” means any Company proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research, product plans, products,
services, customers, customer lists, markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration information,
marketing, financial or other business information disclosed by the Company either directly or
indirectly in writing, orally or by drawings or inspection of parts or equipment.
(b) Consultant will not, during or subsequent to the term of this Agreement, use the Company’s
Confidential Information for any purpose whatsoever other than the performance of the Services on
behalf of the Company or disclose the Company’s Confidential Information to any third party. It is
understood that said Confidential Information shall remain the sole property of the
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Company. Consultant further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information including, but not limited to, having each
employee of Consultant, if any, with access to any Confidential Information, execute a
nondisclosure agreement containing provisions in the Company’s favor identical to Sections 2, 3 and
5 of this Agreement. Confidential Information does not include information which (i) is known to
Consultant at the time of disclosure to Consultant by the Company as evidenced by written records
of Consultant, (ii) has become publicly known and made generally available through no wrongful act
of Consultant, (iii) has been rightfully received by Consultant from a third party who is
authorized to make such disclosure, or (iv) is independently developed by Consultant. Without the
Company’s prior written approval, Consultant will not directly or indirectly disclose to anyone the
contents of this Agreement.
(c) Consultant agrees that Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any former or current employer or
other person or entity with which Consultant has an agreement or duty to keep in confidence
information acquired by Consultant, if any, and that Consultant will not bring onto the premises of
the Company any unpublished document or proprietary information belonging to such employer, person
or entity unless consented to in writing by such employer, person or entity. Consultant will
indemnify the Company and hold it harmless from and against all claims, liabilities, damages and
expenses, including reasonable attorneys fees and costs of suit, arising out of or in connection
with any violation or claimed violation of a third party’s rights resulting in whole or in part
from the Company’s use of the work product of Consultant under this Agreement.
(d) Consultant recognizes that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on the Company’s part
to maintain the confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that Consultant owes the Company and such third parties, during the
term of this Agreement and thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person, firm or corporation
or to use it except as necessary in carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
(e) Upon the termination of this Agreement, or upon Company’s earlier request, Consultant will
deliver to the Company all of the Company’s property or Confidential Information that Consultant
may have in Consultant’s possession or control.
OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes, records, drawings, designs,
inventions, improvements, developments, discoveries and trade secrets conceived, made or discovered
by Consultant, solely or in collaboration with others, during the period of this Agreement which
relate in any manner to the business of the Company that Consultant may be directed to undertake,
investigate or experiment with, or which Consultant may become associated with in work,
investigation or experimentation in the line of business of Company in performing the Services
hereunder (collectively, “Inventions”), are the sole property of the Company. In addition, any
Inventions which constitute copyrightable subject matter shall be considered “works made for hire”
as that term is defined in the United States Copyright Act. Consultant further agrees to assign (or
cause to be assigned) and does hereby assign fully to the Company all Inventions and any
copyrights, patents,
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mask work rights or other intellectual property rights relating thereto. Attached as
Exhibit B hereto is a list describing all inventions, original works of authorship,
developments, improvements and trade secrets which were made by Consultant prior to the date of
this Agreement, which belong to Consultant, and which are not assigned to the Company (“Prior
Inventions”). Consultant represents and warranties that no patent applications relating to
Inventions or Prior Inventions are pending under his name and no Inventions or designs provided to
the Company have been used by prior customers of Consultant or patented by such customers.
(b) Consultant agrees to assist Company, or its designee, at the Company’s expense, in every
proper way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto in any and all countries, including
the disclosure to the Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other instruments which
the Company shall deem necessary in order to apply for and obtain such rights and in order to
assign and convey to the Company, its successors, assigns and nominees the sole and exclusive
right, title and interest in and to such Inventions, and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto. Consultant further agrees that Consultant’s
obligation to execute or cause to be executed, when it is in Consultant’s power to do so, any such
instrument or papers shall continue after the termination of this Agreement.
(c) Consultant agrees that if in the course of performing the Services, Consultant
incorporates into any Invention developed hereunder any invention, improvement, development,
concept, discovery or other proprietary information owned by Consultant or in which Consultant has
an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, perpetual,
irrevocable, worldwide license to make, have made, modify, use and sell such item as part of or in
connection with such Invention.
(d) Consultant agrees that if the Company is unable because of Consultant’s unavailability,
dissolution, mental or physical incapacity, or for any other reason, to secure Consultant’s
signature to apply for or to pursue any application for any United States or foreign patents or
mask work or copyright registrations covering the Inventions assigned to the Company above, then
Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers
and agents as Consultant’s agent and attorney in fact, to act for and in Consultant’s behalf and
stead to execute and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and mask work registrations thereon with
the same legal force and effect as if executed by Consultant.
4. REPORTS
Except as otherwise stated on Exhibit A attached hereto, Consultant agrees that it
will from time to time during the term of this Agreement or any extension thereof keep the Company
advised as to Consultant’s progress in performing the Services hereunder and that Consultant will,
as requested by the Company, prepare written reports with respect thereto. It is understood that
the time required in the preparation of such written reports shall be considered time devoted to
the performance of Consultant’s Services.
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5. CONFLICTING OBLIGATIONS
Except as disclosed to the Company, Consultant certifies that Consultant has no outstanding
agreement or obligation that is in conflict with any of the provisions of this Agreement, or that
would preclude Consultant from complying with the provisions hereof, and further certifies that
Consultant will not enter into any such conflicting Agreement during the term of this Agreement.
6. TERM AND TERMINATION
(a) This Agreement will commence on the date first written above and will continue for two (2)
years from the date first set forth above or until termination as provided below. This Agreement
will automatically renew for additional one (1) year terms unless terminated by either party upon
thirty (30) days written notice prior to the end of the then current term.
(b) Either party may terminate this Agreement for material breach by the other party which is
not cured after thirty (30) days written notice to the Company.
(c) Notwithstanding anything herein to the contrary, the Company may terminate this Agreement
immediately and without prior notice if Consultant refuses to or is unable to perform the Services
or fails to provide the personal services of Mr. Xxxxxxx Xxxxxxx.
(d) Upon such termination all rights and duties of the parties toward each other shall cease
except:
(i) that the Company shall be obliged to pay, within thirty (30) days of the effective date of
termination, all undisputed amounts owing to Consultant for Services completed and accepted by the
Company prior to the termination date and related expenses, if any, in accordance with the
provisions of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 8 (Independent Contractor) shall survive
termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be assigned or
transferred by Consultant without the express written consent of the Company.
8. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to constitute Consultant as an agent,
employee or representative of the Company, but Consultant shall perform the Services hereunder as
an independent contractor. Consultant agrees to furnish (or reimburse the Company for) all tools
and materials necessary to accomplish this contract, and shall incur all expenses associated with
performance, except as expressly provided on Exhibit A of this Agreement. Consultant acknowledges
and agrees that Consultant is obligated to report as income all compensation received by Consultant
pursuant to this Agreement, and Consultant agrees to and acknowledges the obligation to pay all
self-employment and other taxes thereon. Consultant further agrees to indemnify the Company and
hold it harmless to the extent of any obligation imposed on Company (i) to pay in withholding taxes
or similar
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items or (ii) resulting from Consultant’s being determined not to be an independent
contractor.
9. EQUITABLE RELIEF
Consultant agrees that it would be impossible or inadequate to measure and calculate the
Company’s damages from any breach of the covenants set forth in Sections 2 or 3 herein.
Accordingly, Consultant agrees that if Consultant breaches Sections 2 or 3, the Company will have
available, in addition to any other right or remedy available, the right to obtain from any court
of competent jurisdiction an injunction restraining such breach or threatened breach and specific
performance of any such provision. Consultant further agrees that no bond or other security shall
be required in obtaining such equitable relief and Consultant hereby consents to the issuances of
such injunction and to the ordering of such specific performance.
10. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed and enforced in accordance with the internal,
substantive laws of the State of California, without giving effect to the conflict of law rules
thereof, and shall be deemed to be executed in Los Angeles, California. Any legal action or
proceeding relating to this Agreement shall be instituted in a state or federal court in
California. The parties agree to submit to the jurisdiction of, and agree that venue is proper in,
these courts in any such legal action or proceeding.
11. ENTIRE AGREEMENT AND AMENDMENTS
This Agreement is the entire agreement of the parties and supersedes any prior or
contemporaneous agreements whether oral or written between them with respect to the subject matter
hereof. This Agreement may be changed only if agreed to in writing by both parties.
12. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same instrument.
13. SEVERABILITY
If any provision of this Agreement is held to be unenforceable for any reason, such provision
shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to
the maximum extent possible. In any event, all other provisions of this Agreement shall be deemed
valid and enforceable to the full extent possible.
14. WAIVER
The waiver of any term or condition contained in this Agreement by any party to this Agreement
shall not be construed as a waiver of a subsequent breach or failure of the same term or condition
or a waiver of any other term or condition contained in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| COMPANY: CHARTWELL INTERNATIONAL, INC. a Nevada corporation |
||||
| By: | ||||
| Name: | Xxxx Biberkraut | |||
| Title: | Chief Financial Officer | |||
| Address: |
000 Xxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
|||
| CONSULTANT: Name: Entitlement Solutions, Inc. |
||||
| By: | ||||
| Title: | Name: Xxxxxxx Xxxxxxx | |||
| Title: | President | |||
| Address: | 0 Xxx Xxxxxxxxxxx Xxxx Xx Xxxx, Xxxxxxxxxx |
|||
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EXHIBIT A
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EXHIBIT B
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APPENDIX I
Restricted Stock Issuance Agreement
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APPENDIX II
Stock Option Agreement
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