Magnitude Information Systems, Inc. Branchburg, New Jersey 08876 August 17, 2008
Exhibit
10.35
Magnitude
Information Systems, Inc.
0000
Xxxxx 00, Xxxxx 000
Xxxxxxxxxx,
Xxx Xxxxxx 00000
August
17, 2008
Xx.
Xxxx
Xxxxxxx
______________
______________
Dear
Xx.
Xxxxxxx:
This
letter shall serve as an Engagement Agreement (the “Agreement”) pursuant to
which Magnitude Information Systems, Inc. (the '"Company", “we” or “us”) engages
Xxxx Xxxxxxx (''Consultant") to render specified consulting services to the
Company.
1.
Engagement: The Company hereby engages Consultant, and Consultant agrees to
assist the Company on the following subjects: (A) the Company’s software and
hardware assets; (B) the Company’s operations, both historical and prospective;
(C) the Company’s business and expansion plans, and; (D) the Company’s potential
strategic partners, acquisition opportunities and joint venture partners for
the
Company’s social teen networking website business. Consultant shall report
directly to the President and Chief Executive Officer of the Company and with
certain members of management, pre-approved by the President and Chief Executive
Officer. Consultant will provide such assistance and to such extent as
specifically requested in writing by the Company.
2.
Term:
This Agreement shall commence on the date hereof, and shall continue for a
six
(6) month period (the "Term"). The Company can terminate this Agreement, under
certain circumstances for Cause, with 30-days written notice. Termination for
"Cause" shall mean termination of this Agreement because Consultant (a) has
engaged in fraudulent or criminal conduct in connection with the performance
of
his duties hereunder which conduct materially and adversely affects the Company,
(b) admits to or has been convicted of a crime punishable by imprisonment for
more than one year, (c) has been disloyal to the Company by assisting
competitors of the Company or their associates to the disadvantage of the
Company by a breach of Section 7 or by otherwise actively assisting competitors
to the disadvantage of the Company.
3.
Compensation: In consideration of the Consultant’s agreement to render the
services set forth herein and his commitment to provide such services, the
Company shall pay Consultant a monthly consulting fee of $12,500 for each month
of the Term, payable at the end of each such month. Consultant need not issue
any invoice or other demand for payment, it being an affirmative obligation
of
the Company to pay Consultant in a timely manner.
4.
Assignment: Consultant may not assign any of its rights, duties or obligations
under this Agreement without the prior written consent of the
Company.
5.
Consultant Representations: Consultant agrees and represents: (a) that he is
an
independent contractor and not an employee or agent of the Company and that
in
acting pursuant to this engagement he will not legally bind or obligate the
Company in any manner whatsoever; and (b) that the execution and delivery of
its
performance under this Agreement shall not violate or breech any agreement,
contract or obligation currently in existence between the Consultant and any
third party.
6.
Reimbursement of Expenses. The Company will reimburse Consultant for all
pre-approved, reasonable, ordinary and necessary business expenses incurred
by
him in the fulfillment of his duties hereunder upon presentation of an itemized
account of such expenditures, in accordance with Company practices and pertinent
IRS regulations.
7.
Confidentiality and Non-Compete: Except as contemplated by the terms hereof
or
as required by applicable law, Consultant shall keep confidential during the
Term and thereafter all non-public information provided to Consultant by the
Company, and shall not disclose such information to any third party, and shall
not use any such information for any purpose other than the purpose of
performing Consultant’s services for the Company as herein contemplated. In
addition, Consultant hereby agrees that during the Term of this Agreement and
for a period of twenty-four months thereafter, he shall
not
engage in any activates that are competitive with the business of the Company,
including without limitation, (a)engaging directly or indirectly in any social
networking website or online website magazine, with a teen-targeted
demographic;
(b)
soliciting or taking away any executive, employee, agent, representative,
contractor, supplier, vendor, customer, franchisee, lender or investor of the
Company, or attempting to so solicit or take away; (c) interfering with any
contractual or other relationship between the Company and any executive,
employee, agent, representative, contractor, supplier, vendor, customer,
franchisee, lender or investor; or (d) using, for the benefit of any person
or
entity other than the Company any Confidential Information of the Company.
The
items and projects set forth in Exhibit A of Ivan’s Employment Agreement are
expressly and specifically excluded from this limitation.
8.
Agreement: This Agreement may not be amended or modified except in writing
and
shall be deemed to have been made and delivered in the State of New York, and
this letter and the transactions contemplated hereby shall be governed as to
validity, interpretation, construction, effect, and in all other respects by
the
internal laws of the State of New York. Any legal action or proceeding arising
out of or relating to this Agreement and/or the transactions contemplated hereby
shall be instituted exclusively in either the Supreme Court, New York County,
State of New York or in the United States District Court for the Southern
District of New York, and the parties hereby expressly submit to the personal
jurisdiction of said courts. Consultant acknowledges that a material part of
the
consideration upon which the Company is relying to enter into this Agreement
is
the Consultant’s promises made in Paragraph 7 and that if Consultant breached
such promise or promises the Company would suffer immediate and irreparable
harm
of a unique nature that could not be determined in liquidated damages.
Accordingly, Consultant agrees that in the event he breaches or threatens to
breach any of these promises the Company may obtain an injunction against any
such breach or threat of breach in any one of the above identified New York
courts.
9.
Complete Agreement; Survival: This Agreement supercedes and replaces any and
all
prior consulting agreements, oral or written, between the parties, except,
however, that certain Resignation Agreement, dated the date hereof.
The
parties hereby agree that their promises made in Paragraphs 7, 8 and 10 shall
survive any termination of this Agreement.
10.
Indemnification. The Consultant and the Company hereby agree to defend one
another and to indemnify each other from and against any liability of any nature
whatsoever that may arise out of or as a result of any material
misrepresentations or omissions made in connection with the services rendered
under the terms of this Agreement made by either the Consultant or the Company,
as the case may be (the “Indemnifying Party”). By this indemnification, the
Indemnifying Party shall pay, on demand, to the other party (the “Indemnified
Party”) any and all costs, expenses, judgments, fines, including reasonable
attorney’s fees, incurred during any administrative proceeding or legal process
instituted against either the Company or the Consultant whose material
allegations include a claim or claims that the Indemnifying Party made a
material misrepresentation or omission in connection with the conduct of the
services rendered under this Agreement.
If
the
foregoing correctly sets forth the understanding and agreements between the
Company and Consultant, Consultant shall indicate so by signing in the space
provided for that purpose below, whereupon this letter shall constitute a
binding agreement as of the date first above written.
This
agreement is subject to approval by the Company's Board of Directors.
Magnitude
Information Systems, Inc.
| By: /s/ Xxxxxx Xxxx | |||
|
Xxxxxx Xxxxx, President and CEO |
|
Agreed
to:
Consultant:
|
||
| |
|
|
| /s/ Xxxx Xxxxxxx | ||
|
Xxxx Xxxxxxx |
||
