BUSINESS CONSULTANT AND MANAGEMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective as of June 13, 2000, by
and between Oryx Ventures, LLC a California limited liability company
("Consultant"), and Lots Technology, a California corporation (the
"Corporation").
R E C I T A L S :
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A. The Corporation is presently in the process of reorganizing and
improving its operations;
B. It is the desire of the Corporation to engage the services of Consultant
in connection with certain strategic advisory services;
C. It is the desire of Consultant to consult with the Board of Directors
and the officers of the Corporation and to undertake for the Corporation certain
strategic consulting activities with respect to the direction of the Company's
operations and financial affairs.
NOW, THEREFORE, for good and valuable consideration and intending to be
legally bound, the parties hereto agree as follows:
1. Term of Agreement. The respective duties and obligations of the parties
hereto shall commence effective May 1, 2000 and shall continue for a period of
two (2) years thereafter. At least thirty (30) days prior to the expiration of
the term of this Agreement (or of any renewal term) the parties shall negotiate
in good faith to extend the term of this engagement, if further consulting
services are needed.
2. Consultation. Consultant shall make its designated employees and agents
available to consult with the Board of Directors, the officers of the
Corporation, and other Corporation employees, at reasonable times, concerning
certain strategic business matters, including, but not limited to: (i) executive
recruiting, (ii) business development and strategic marketing, (iii) debt and/or
equity financing strategies.
3. Consultant an Independent Contractor. The Corporation agrees that in
performing Consultant's duties and obligations under this Agreement, Consultant
and all employees and other agents of Consultant shall be deemed to be
independent contractors and not employees of the Corporation. The Corporation
and Consultant agree that, in all cases, Consultant and its employees and other
agents are, with respect to the Corporation, free to choose the manner, means
and timing of their performance, and are not employees of the Corporation within
the meaning of Section 3401(c) of the Internal Revenue Code of 1986, as amended,
and Treasury Regulations Section 31.3401(c)-1 The Corporation shall not withhold
any taxes or other payroll deductions from any compensation payable to
Consultant under this Agreement and shall indemnify Consultant and hold it
harmless from any losses, penalties, taxes, interest, attorneys' fees, costs and
other expenses resulting from any claims for the amount of any payroll and
income withholding taxes with respect to compensation paid to Consultant and the
failure to account for, withhold and pay over any such taxes. Consultant
warrants that amounts paid by it
to its employees in connection with services rendered under this Agreement will
have appropriate payroll and income taxes withheld from them.
4. Employment of Certified Public Accountants. It is understood and agreed
by the parties hereto that the services to be performed by Consultant do not
include the auditing of the books of the Corporation, the preparing of any
financial statements, the preparing of any tax returns or other documents
required to be prepared by any governmental body having jurisdiction to tax, or
any other acts or services normally performed by certified public accountants.
Consultant may, at the request of the Corporation, engage, hire, retain, and
employ, in the name and for the account of the Corporation, one or more, or a
firm of, certified public accountants to perform for the Corporation the
services denoted above in this paragraph.
5. Employment of Assistants. If it is reasonably necessary for Consultant
to have the aid of assistants or the services of other persons, companies, or
firms in order to properly perform the duties and obligations required of
Consultant under this Agreement, Consultant may, upon approval of the
Corporation, which approval will not be unreasonably withheld, from time to
time, employ, engage, or retain the same. The cost to Consultant for said
services shall be chargeable to the Corporation, and the Corporation shall
reimburse and pay over to Consultant said costs on demand.
6. Limited Liability. With regard to the services to be performed by
Consultant pursuant to the terms of this agreement, Consultant shall not be
liable to the Corporation, or to anyone who may claim any right due to
Consultant's relationship with the Corporation, for any acts or omissions in the
performance of said services on the part of Consultant or on the part of the
agents or employees of Consultant; except when said acts or omissions of
Consultant are due to willful misconduct and under circumstances in which
indemnity is expressly prohibited by applicable law. The Corporation shall
indemnify Consultant and hold it free and harmless from any and all obligations,
liabilities, costs, claims, actions, judgments, attorneys' fees, and attachments
arising from or growing out of any matter or transaction occurring prior to the
date of this Agreement and arising from or growing out of the services rendered
by Consultant to the Corporation pursuant to the terms of this Agreement or in
any way connected with the rendering of said services, except when the same
shall arise due to the willful misconduct of Consultant, and under circumstances
in which indemnity is expressly prohibited by applicable law.
7. Compensation. Upon execution of this Agreement, and subject to
compliance with applicable federal and state securities laws, the Corporation
shall issue Consultant a option, substantially in the form of Exhibit A,
attached hereto, to purchase a number of shares of the Corporation's Common
Stock equal to 333,000 shares of its Common Stock outstanding at a purchase
price of one dollar and fifty ($1.50) per share. Such option shall vest monthly
over a one-year period beginning at the commencement of this Agreement and shall
be exercisable for a term of five years. The term and vesting of such option
shall not be affected by any termination of this Agreement, except termination
of this Agreement by the Corporation for "good cause," as defined in Section 8
would affect vesting.
8. Termination; Suspension of Performance. Consultant may suspend its
performance under this Agreement at any time if the Corporation has not provided
compensation
in accordance with the terms of Paragraph 7 hereof. Either party may terminate
this Agreement following a material breach by the other party and fifteen (15)
days written notice, if the breach remains uncured after the expiration of said
15-day period. Upon thirty (30) days written notice the Corporation may
terminate this Agreement for "good cause," which, for purposes of this
Agreement, shall be defined as willful misconduct or gross negligence in the
performance of Consultant's duties under this Agreement.
9. Term of Service. Consultant shall devote up to 100 man-days of work,
over the two-year term of this Agreement, to the affairs of the Corporation,
principally through the services of Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxx and/or other
executives of Oryx Ventures. Anything contained in this Agreement to the
contrary notwithstanding, Consultant shall devote only so much time, in excess
of four (4) man-days per month, to the affairs of the Corporation as it, in its
sole judgment, deems necessary; and Consultant may represent, perform services
for, and be employed by, any additional clients, persons, or companies as
Consultant, in its sole discretion, sees fit.
10. Expenses. In addition to the compensation specified in Section 7 the
Corporation will pay reasonable out-of-pocket expenses incurred by Consultant in
the furtherance of or in connection with the performance of the consulting
services hereunder.
11. Confidential Information.
(a) For purposes of this Section 11, the term "Confidential Information"
shall mean all information developed by or disclosed or made available to
Consultant, its employees or representatives, in connection with the performance
by Consultant of the consulting services hereunder which the Company protects
against unrestricted disclosure to others and which: (i) if in written or other
tangible form, is clearly designated as "Confidential"; and (ii) if disclosed
orally, is reduced to a writing designating such information as "Confidential"
which is delivered to Consultant promptly following such oral disclosure. By way
of illustration, but not limitation, Confidential Information may include
inventions, concepts, designs, structures, formulas, techniques, processes,
circuits, market data, customer lists, call lists and suppliers.
(b) Consultant agrees, with respect to any Confidential Information
developed by or disclosed to it hereunder: (i) to use such Confidential
Information only for the purposes of performing the consulting services
hereunder; (ii) to use the same methods and degree of care to prevent disclosure
of such Confidential Information as it uses to prevent disclosure of its own
proprietary and confidential information; (iii) to disclose the Confidential
Information to its employees only on a need-to-know basis and not to disclose
any Confidential Information to any third party without the prior written
consent of the Company; and (iv) to return any Confidential Information in any
tangible form to the Company at the request of the Company and to retain no
copies or reproductions thereof.
(c) Consultant shall not be obligated to treat information as Confidential
Information if such information: (i) was rightfully in Consultant's possession
or was rightfully known to Consultant prior to receipt from the Company; (ii) is
or becomes publicly known without the fault of Consultant; (iii) is or becomes
rightfully available to Consultant without confidential
restriction from a source not bound by a confidentiality obligation to the
Company; (iv) is independently developed by Consultant without use of the
Confidential Information disclosed hereunder; provided, however, that the burden
of proof of such independent development shall be upon Consultant; or (v) is
required to be disclosed pursuant to court or government action; provided,
however, that Consultant gives the Company reasonable prior notice of disclosure
pursuant to such court or government action and, upon the request of the
Company, the Consultant shall cooperate in contesting such disclosure.
12. Miscellaneous.
(a) Relationship of Parties. Consultant shall at all times during the
performance of its services hereunder be an independent contractor, maintaining
sole and exclusive control over its business and operations. At no time will
either party hold itself out to be the agent, employee, lessee, sublessee,
partner, or joint venturer of the other party. Neither party hereto shall have
the express or implied right or authority to assume or create any obligation on
behalf of or in the name of the other party, or to bind the other party in
regard to any contract, agreement or undertaking with any third party.
(b) Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement between the parties relating to the
subject matter hereof and supersedes all prior, written or oral negotiations,
representations or agreements. No modification of this Agreement shall be
binding on either party unless it is in writing and signed by both parties.
(c) Severability. The provisions of this Agreement are severable, and if
one or more provisions are judicially determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions or portions of this
Agreement shall nevertheless be binding on and enforceable by and between the
parties hereto.
(d) Assignment. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto; provided, however, that
Consultant shall not transfer or assign this Agreement without prior written
consent of the Corporation.
(e) Governing Law. The rights and obligations of the parties to this
Agreement shall be governed by and construed in accordance with the laws of the
State of California.
(f) Headings. Section headings are for convenience of reference only and
shall not be considered in the interpretation of this Agreement.
(g) Unavoidable Delays. Either party shall be excused for any delays or
defaults in the performance of this Agreement (except the payment of amounts due
and payable hereunder) unavoidably caused by the act of the other, the act of
any agent of the other, the act of any governmental authority, acts of God, the
elements, war, litigation, strikes, walkouts, or any other cause beyond its
reasonable control. Each party shall use all reasonable diligence to avoid
any such delay or default and to resume performance under this Agreement as soon
as practicable after such delay or default.
(h) Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery or on the day sent by facsimile transmission if a true and
correct copy is sent the same day by first class mail, postage prepaid, or by
dispatch by an internationally recognized express courier service, and in each
case addressed as follows:
To Consultant: ORYX Ventures, LLC
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
To the Corporation: LOTS Technology, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: X.X. Xxxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement at Fremont,
California on the day and year first above mentioned.
THE CORPORATION:
LOTS Technology, Inc.
By: /s/ X.X. Xxxxxx
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Its: President
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CONSULTANT:
ORYX Ventures, LLC
By: /s/ Xxxxxxxx X Xxxx
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Its: Partner
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