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EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of May 7,
2001 by and between E-Sync Networks, Inc., a Delaware corporation (the
"Company"), and Xxxxxxxx Xxxxxxxxx & Co., Inc., a New York corporation (the
"Consultant").
RECITALS
1. Consultant has expertise in the area of the Company's business and is
willing to provide consulting services to the Company.
2. The Company is willing to engage Consultant as an independent
contractor, and not as an employee, on the terms and conditions set forth
herein.
AGREEMENT
In consideration of the foregoing and of the mutual promises set forth
herein, and intending to be legally bound, the parties hereto agree as follows:
1. ENGAGEMENT.
(a) The Company hereby engages Consultant to render, as an
independent contractor, the consulting services described in Exhibit A hereto
and such other services as may be agreed to in writing by the Company and
Consultant from time to time. For purposes of this Agreement, references to
"Consultant" shall also include all representatives, agents, employees, and
affiliates of Consultant.
(b) Consultant hereby accepts the engagement to provide consulting
services to the Company on the terms and conditions set forth herein.
(c) The persons listed under the heading "Representatives of
Consultant" on Exhibit A hereto shall be the representatives of Consultant
principally responsible for providing the services hereunder to the Company and
biographies of such individuals have been delivered by the Consultant to the
Company for review and consideration prior to the date hereof.
2. TERM. This Agreement will commence on the date first written above,
and unless modified by the mutual written agreement of the parties or terminated
as provided for below, shall continue until the satisfactory completion of the
services set forth in Exhibit A. The Company may terminate this Agreement upon
10 days written notice to Consultant.
3. COMPENSATION.
(a) In consideration of the services to be performed by Consultant,
the Company agrees to pay Consultant in the manner and at the rates set forth in
Exhibit A.
(b) Out of pocket expenses incurred by Consultant that are
authorized by the Company in advance in writing shall be reimbursed by Company
to Consultant.
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4. CONSULTANT'S BUSINESS ACTIVITIES.
(a) During the term of this Agreement, Consultant will engage in no
business or other activities, which are or may be, directly or indirectly,
competitive with the business activities of the Company without obtaining the
prior written consent of the Company.
(b) Consultant shall devote such time, attention and energy to the
business and affairs of the Company as requested by the Company. Further,
Consultant shall perform its duties and responsibilities to the best of its
abilities in a diligent and professional manner.
(c) Consultant shall keep and periodically provide to the Company a
log describing the work activities and hours of Consultant.
5. CONFIDENTIAL INFORMATION AND ASSIGNMENTS. Consultant is
simultaneously executing a Confidential Information and Invention Assignment
Agreement for Consultants in the form of Exhibit B (the "Confidential
Information and Invention Assignment Agreement"). The obligations under the
Confidential Information and Invention Assignment Agreement shall survive
termination of this Agreement for any reason.
6. INTERFERENCE WITH THE COMPANY'S BUSINESS.
(a) Notwithstanding any other provision of this Agreement, during
the term of this Agreement and for a period of one year after termination of
this Agreement, Consultant shall not, directly or indirectly, employ, solicit
for employment, or advise or recommend to any other person that such other
person employ or solicit for employment, any person employed by or under
contract (whether as a consultant, at-will employee or otherwise) with the
Company during the period of such person's association with the Company and one
year thereafter.
(b) Notwithstanding any other provision of this Agreement, and to
the fullest extent permitted by law, during the term of this Agreement and for a
period of one year after termination of this Agreement, Consultant shall not,
directly or indirectly, solicit any clients or customers of the Company.
Consultant agrees that such solicitation would necessarily involve disclosure or
use of confidential information in breach of the Confidential Information and
Invention Assignment Agreement.
7. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants
(i) that Consultant has no obligations, legal or otherwise, inconsistent with
the terms of this Agreement or with Consultant's undertaking this relationship
with the Company, (ii) that the performance of the services called for by this
Agreement do not and will not violate any applicable law, rule or regulation or
any proprietary or other right of any third party, (iii) that Consultant will
not use in the performance of its his responsibilities under this Agreement any
confidential information or trade secrets of any other person or entity and (iv)
that Consultant has not entered into or will not enter into any agreement
(whether oral or written) in conflict with this Agreement.
8. INDEMNIFICATION. Consultant hereby agrees to indemnify, defend and
hold harmless the Company from and against any and all claims, demands and
actions, and any liabilities, damages or expenses resulting therefrom, including
court costs and reasonable attorneys' fees, arising out of or relating to the
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services performed by Consultant under this Agreement or the representations and
warranties made by Consultant pursuant to paragraph 7 hereof. Consultant's
obligations under this paragraph 8 hereof shall survive the termination (for any
reason) of this Agreement.
9. ATTORNEY'S FEES. Should for any reason either party hereto, or any
heir, personal representative, successor or assign of either party hereto,
resort to litigation to enforce this Agreement, the party or parties prevailing
in such litigation shall be entitled, in addition to such other relief as may be
granted, to recover its or their reasonable attorneys' fees and costs in such
litigation from the party or parties against whom enforcement was sought.
10. ENTIRE AGREEMENT. This Agreement, contains the entire understanding
and agreement between the parties hereto with respect to its subject matter and
supersedes any prior or contemporaneous written or oral agreements,
representations or warranties between them respecting the subject matter hereof.
11. AMENDMENT. This Agreement may be amended only by a writing signed by
Consultant and by a representative of the Company duly authorized.
12. SEVERABILITY. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or circumstance,
shall be held by a court of competent jurisdiction to be invalid, unenforceable
or void, the remainder of this Agreement and such term, provision, covenant or
condition as applied to other persons, places and circumstances shall remain in
full force and effect.
13. RIGHTS CUMULATIVE. The rights and remedies provided by this Agreement
are cumulative, and the exercise of any right or remedy by either party hereto
(or by its successors), whether pursuant to this Agreement, to any other
agreement, or to law, shall not preclude or waive its right to exercise any or
all other rights and remedies.
14. NONWAIVER. No failure or neglect of either party hereto in any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged and,
in the case of the Company, by an executive officer of the Company or other
person duly authorized by the Company.
15. REMEDY FOR BREACH. The parties hereto agree that, in the event of
breach or threatened breach of this Agreement by the Consultant, the damage or
imminent damage to the value and the goodwill of the Company's business will be
inestimable, and that therefore any remedy at law or in damages shall be
inadequate. Accordingly, the parties hereto agree that the Company shall be
entitled to injunctive relief against Consultant in the event of any breach or
threatened breach by Consultant, in addition to any other relief (including
damages and the right of the Company to stop payments hereunder which is hereby
granted) available to the Company under this Agreement or under law.
16. AGREEMENT TO PERFORM NECESSARY ACTS. Consultant agrees to perform any
further acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
17. ASSIGNMENT. This Agreement may not be assigned by Consultant without
the Company's prior written consent. This Agreement may be assigned by the
Company in connection with a merger or sale
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of all or substantially all of its assets, and in other instances with the
Consultant's consent which consent shall not be unreasonably withheld or
delayed.
18. COMPLIANCE WITH LAW. In connection with its services rendered
hereunder, Consultant agrees to abide by all federal, state, and local laws,
ordinances and regulations.
19. INDEPENDENT CONTRACTOR. The relationship between Consultant and the
Company is that of independent contractor under a "work for hire" arrangement.
All work product developed by Consultant shall be deemed owned and assigned to
Company. This Agreement is not authority for Consultant to act for the Company
as its agent or make commitments for the Company. Consultant will not be
eligible for any employee benefits, nor will the Company make deductions from
fees to the Consultant for taxes, insurance, bonds or the like. Consultant
retains the discretion in performing the tasks assigned, within the scope of
work specified.
20. TAXES. Consultant agrees to pay all appropriate local, state and
federal taxes.
21. GOVERNING LAW. This Agreement shall be construed in accordance with,
and all actions arising hereunder shall be governed by, the laws of the State of
New York.
XXXXXXXX XXXXXXXXX & CO., INC. E-SYNC NETWORKS, INC.
By: /s/ Xxxxxxx X.X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- ------------------------------
Name: Xxxxxxx X.X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Managing Director Title: President & COO
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EXHIBIT A
1. DESCRIPTION OF SERVICES TO BE RENDERED
To assist the management of the Company in identifying appropriate action
steps to improve the financial performance of the Company within the shortest
possible time frame. These steps may include, but not limited to:
(a) Development and implementation of business plans;
(b) Assistance in restructuring the organization;
(c) Assistance in restructuring the Company's payables and other debt; and
(d) Fund raising per the Agreement including development of appropriate
corporate materials.
2. COMPENSATION
(a) Monthly Fee. The Company will pay Consultant a monthly fee of $25,000
a month (the "Consulting Fee"). The Consulting Fee shall accrue and become
payable only in the Private Placement (as defined in that certain Letter of
Intent (the "LOI") dated May 7, 2001, between the Company and SpaceLogix, Inc.)
is completed within 120 days following consummation of the Merger (as defined in
the LOI) and such Private Placement renders net proceeds to the Company of at
least $2,000,000 (collectively, a "Successful Capital Raise"). In the event this
Agreement is terminated in accordance with its terms, the accrued Consulting Fee
shall only become payable in the event that a Successful Capital Raise occurs.
(b) Penalty Fee. In the event the Merger (as defined in the LOI) does not
occur within 150 days from the date hereof (and such non-occurrence does not
result from (i) a decision by SpaceLogix (as defined in the LOI) and/or TW (as
defined in the LOI) to cease negotiations in regard thereto, (ii) SpaceLogix's
failure to make Bridge Loans to the Company in an aggregate amount of at least
$1,050,000 within 45 days of the execution hereof and/or (iii) the Merger
Agreement (as defined in the LOI) being executed but the Merger not being
consummated within 90 days thereof as a result of a breach by SpaceLogix thereof
and/or the failure of SpaceLogix to satisfy all conditions precedent required to
be satisfied by it), then the Company shall pay Consultant a penalty fee of
$75,000 in lieu of any Consulting Fee and/or expenses otherwise owed hereunder
to compensate Consultant for services rendered and expenses incurred.
3. REPRESENTATIVES OF CONSULTANT:
(a) Xxxxxxx Xxxxxxxxx
(b) Xxxx Xxxxxxx
(c) Xxxxxxx Xxxxxxxx
(d) Xxxx Xxxx
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EXHIBIT B
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT FOR CONSULTANT
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CONFIDENTIAL INFORMATION AND OWNERSHIP INVENTION ASSIGNMENT
AGREEMENT FOR CONSULTANT
This CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the
"Agreement") is made between E-Sync Networks, Inc., a Delaware corporation (the
"Company"), and the undersigned consultant (the "Consultant").
In consideration of my Consultant's relationship with the Company (which
for purposes of this Agreement shall be deemed to include any subsidiaries or
Affiliates of the Company), the receipt of confidential information while
associated with the Company, and other good and valuable consideration, the
undersigned Consultant agrees that:
1. Term of Agreement. This Agreement shall continue in full force and
effect for the duration of Consultant's relationship with the Company and shall
continue thereafter until terminated through a written instrument signed by both
parties hereto.
2. Confidentiality.
(a) Definitions.
"Proprietary Information" is all information and any idea whatever
form, tangible or intangible, pertaining in any manner to the business of the
Company, or any of its Affiliates, or its employees which was produced by any
employee or consultant of the Company in the course of his or her employment or
consulting relationship or otherwise produced or acquired by or on behalf of the
Company. All Proprietary Information not generally known outside of the
Company's organization, and all Proprietary Information so known only through
improper means, shall be deemed "Confidential Information." By example and
without limiting the foregoing definition, Proprietary and Confidential
Information shall include, but not be limited to:
(1) formulas, research and development techniques, processes,
trade secrets, computer programs, software, electronic codes, mask works,
inventions, innovations, patents, patent applications, discoveries,
improvements, data, know-how, formats, test results, and research
projects;
(2) information about costs, profits, markets, sales,
contracts and lists of customers, and distributors;
(3) business, marketing, and strategic plans;
(4) forecasts, unpublished financial information, budgets,
projections, and customer identities, characteristics and agreements; and
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(5) employee personnel files and compensation information.
Confidential Information is intended to be broadly defined, and includes
all information that has or could have commercial value or other utility in the
business in which the Company is engaged or contemplates engaging, and all
information of which the unauthorized disclosure could be detrimental to the
interests of the Company, whether or not such information is identified as
Confidential Information by the Company.
(b) Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain trade secrets,
proprietary techniques and other Confidential Information which have great value
to its business. This Confidential Information includes not only information
disclosed by the Company to Consultant, but also information developed or
learned by Consultant during the course of Consultant's relationship with the
Company.
(c) Protection of Confidential Information. Consultant will not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any third party, other than in Consultant's assigned duties and
for the benefit of the Company, any of the Company's Confidential Information,
either during or after Consultant's relationship with the Company. In the event
Consultant desires to publish the results of Consultant's work for the Company
through literature or speeches, Consultant will submit such literature or
speeches to the President or Chief Operating Officer of the Company at least 10
days before dissemination of such information for a determination of whether
such disclosure may alter trade secret status, may be prejudicial to the
interests of the Company, or may constitute an invasion of its privacy.
Consultant agrees not to publish, disclose or otherwise disseminate such
information without prior written approval of the President or Chief Operating
Officer of the Company. Consultant acknowledges that it is aware that the
unauthorized disclosure of Confidential Information of the Company may be highly
prejudicial to its interests, an invasion of privacy, and an improper disclosure
of trade secrets.
(d) Delivery of Confidential Information. Upon request or when
Consultant's relationship with the Company terminates, Consultant will
immediately deliver to the Company all copies of any and all materials and
writings received from, created for, or belonging to the Company including, but
not limited to, those which relate to or contain Confidential Information.
(e) Location and Reproduction. Consultant shall maintain at
Consultant's workplace only such Confidential Information as Consultant has a
current "need to know." Consultant shall return to the appropriate person or
location or otherwise properly dispose of Confidential Information once that
need to know no longer exists. Consultant shall not make copies of or otherwise
reproduce Confidential Information unless there is a legitimate business need of
the Company for reproduction.
(f) Prior Actions and Knowledge. Consultant represents and warrants
that from the time of Consultant's first contact with the Company, Consultant
held in strict confidence all Confidential Information and has not disclosed any
Confidential Information, directly or indirectly, to anyone outside the Company,
or used, copied, published, or summarized any Confidential Information, except
to the extent otherwise permitted in this Agreement.
(g) Third-Party Information. Consultant acknowledges that the
Company has received and in the future will receive from third parties their
confidential 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 it will at all times hold all such confidential
information in the strictest
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confidence and not to disclose or use it, except as necessary to perform
Consultant's obligations hereunder and as is consistent with the Company's
agreement with such third parties.
(h) Third Parties. Consultant represents that its relationship with
the Company does not and will not breach any agreements with or duties to any
other third party. Consultant will not disclose to the Company or use on its
behalf any confidential information belonging to others and Consultant will not
bring onto the premises of the Company any confidential information belonging to
any such party unless consented to in writing by such party.
3. Proprietary Rights, Inventions and New Ideas.
(a) Definition. The term "Subject Ideas or Inventions" includes any
and all ideas, processes, trademarks, service marks, inventions, designs,
technologies, computer hardware or software, original works of authorship,
formulas, discoveries, patents, copyrights, copyrightable works products,
marketing and business ideas, and all improvements, know-how, data, rights, and
claims related to the foregoing that, whether or not patentable, which are
conceived, developed or created which: (1) relate to the Company's current or
contemplated business; (2) relate to the Company's actual or demonstrably
anticipated research or development; (3) result from any work performed by
Consultant for the Company; (4) involve the use of the Company's equipment,
supplies, facilities or trade secrets; (5) result from or are suggested by any
work done by the Company or at the Company's request, or any projects
specifically assigned to Consultant; or (6) result from Consultant's access to
any of the Company's memoranda, notes, records, drawings, sketches, models,
maps, customer lists, research results, data, formulae, specifications,
inventions, processes, equipment or other materials (collectively, "Company
Materials").
(b) Company Ownership. All right, title and interest in and to all
Subject Ideas and Inventions, including but not limited to all registrable and
patent rights which may subsist therein, shall be held and owned solely by the
Company, and where applicable, all Subject Ideas and Inventions shall be
considered works made for hire. Consultant shall xxxx all Subject Ideas and
Inventions with the Company's copyright or other proprietary notice as directed
by the Company and shall take all actions deemed necessary by the Company to
protect the Company's rights therein. In the event that the Subject Ideas and
Inventions shall be deemed not to constitute works made for hire, or in the
event that Consultant should otherwise, by operation of law, be deemed to retain
any rights (whether moral rights or otherwise) to any Subject Ideas and
Inventions, Consultant agrees to assign to the Company, without further
consideration, Consultant's entire right, title and interest in and to each and
every such Subject Idea and Invention.
(c) Disclosure. Consultant agrees to disclose promptly to the
Company full details of any and all Subject Ideas and Inventions.
(d) Maintenance of Records. Consultant agrees to keep and maintain
adequate and current written records of all Subject Ideas and Inventions and
their development made by Consultant (solely or jointly with others) during the
term of Consultant's relationship with the Company. These records will be in the
form of notes, sketches, drawings, and any other format that may be specified by
the Company. These records will be available to and remain the sole property of
the Company at all times.
(e) Determination of Subject Ideas and Inventions. Consultant
further agrees that all information and records pertaining to any idea, process,
trademark, service xxxx, invention, technology, computer hardware or software,
original work of authorship, design, formula, discovery, patent, copyright,
product, and all improvements, know-how, rights, and claims related to the
foregoing ("Intellectual
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Property"), that Consultant does not believe to be a Subject Idea or Invention,
but that is conceived, developed, or reduced to practice by the Company (alone
by Consultant or with others) during Consultant's relationship with the Company
and for one (1) year thereafter, shall be disclosed promptly by Consultant to
the Company. The Company shall examine such information to determine if in fact
the Intellectual Property is a Subject Idea or Invention subject to this
Agreement.
(f) Access. Because of the difficulty of establishing when any
Subject Ideas or Inventions are first conceived by Consultant, or whether it
results from my Consultant's access to Confidential Information or Company
Materials, Consultant agrees that any Subject Idea and Invention shall, among
other circumstances, be deemed to have resulted from my Consultant's access to
Company Materials if: (1) it grew out of or resulted from Consultant's work with
the Company or is related to the business of the Company, and (2) it is made,
used, sold, exploited or reduced to practice, or an application for patent,
trademark, copyright or other proprietary protection is filed thereon, by
Consultant or with Consultant's significant aid, during the relationship with
the Company and within one year after termination of Consultant's relationship
with the Company.
(g) Assistance. Consultant further agrees to assist the Company in
every proper way (but at the Company's expense) to obtain and from time to time
enforce patents, copyrights or other rights or registrations on said Subject
Ideas and Inventions in any and all countries, and to that end will execute all
documents necessary:
(1) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights or
other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same;
(2) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous
protection; and
(3) to cooperate with the Company (but at the Company's
expense) in any enforcement or infringement proceeding on such letters
patent, copyright or other analogous protection.
(h) Authorization to Company. In the event the Company is unable,
after reasonable effort, to secure Consultant's signature on any patent,
copyright or other analogous protection relating to a Subject Idea and
Invention, Consultant hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as its agent and attorney-in-fact, to
act for and on Consultant's behalf and stead to execute and file any such
application, applications or other documents and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of letters
patent, copyright or other analogous rights or protections thereon with the same
legal force and effect as if executed by Consultant. Consultant's obligation to
assist the Company in obtaining and enforcing patents and copyrights for Subject
Ideas and Inventions in any and all countries shall continue beyond the
termination of Consultant's relationship with the Company, but the Company shall
compensate Consultant at a reasonable rate after such termination for time
actually spent by Consultant at the Company's request on such assistance.
(i) Acknowledgment. Consultant acknowledges that there are no
currently existing ideas, processes, inventions, discoveries, marketing or
business ideas or improvements which Consultant desires to exclude from the
operation of this Agreement. To the best of Consultant's knowledge, there is no
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other contract to assign inventions, trademarks, copyrights, ideas, processes,
discoveries or other intellectual property that is now in existence between
Consultant and any other person (including any business or governmental entity).
(j) No Use of Name. Consultant shall not at any time use the
Company's name or any the Company trademark(s) or trade name(s) in any
advertising or publicity without the prior written consent of the Company.
4. Competitive Activity.
(a) Acknowledgment. Consultant acknowledges that the pursuit of the
activities forbidden by Section 4(b) below would necessarily involve the use,
disclosure or misappropriation of Confidential Information.
(b) Prohibited Activity. To prevent the above-described disclosure,
misappropriation and breach, Consultant agrees that during its relationship and
for a period of one (1) year thereafter, without the Company's express written
consent, Consultant shall not, directly or indirectly, (i) employ, solicit for
employment, or recommend for employment any person employed by the Company (or
any Affiliate); and (ii) engage in any present or contemplated business
activity, other than as currently conducted or contemplated, that is or may be
competitive with the Company (or any Affiliate) in any state where the Company
conducts its business, unless Consultant can prove that any action taken in
contravention of this subsection (ii) was done without the use in any way of
Confidential Information.
5. Representations and Warranties. Consultant represents and warrants (i)
that Consultant has no obligations, legal or otherwise, inconsistent with the
terms of this Agreement or with Consultant's undertaking a relationship with the
Company; (ii) that the performance of the services called for by this Agreement
do not and will not violate any applicable law, rule or regulation or any
proprietary or other right of any third party; (iii) that Consultant will not
use in the performance of Consultant's responsibilities for the Company any
confidential information or trade secrets of any other person or entity; and
(iv) that Consultant has not entered into or will not enter into any agreement
(whether oral or written) in conflict with this Agreement.
6. Termination Obligations.
(a) Upon the termination of Consultant's relationship with the
Company or promptly upon the Company's request, Consultant shall surrender to
the Company all equipment, tangible Proprietary Information, documents, books,
notebooks, records, reports, notes, memoranda, drawings, sketches, models, maps,
contracts, lists, computer disks (and other computer-generated files and data),
any other data and records of any kind, and copies thereof (collectively,
"Company Records"), created on any medium and furnished to, obtained by, or
prepared by Consultant itself in the course of or incident to its relationship
with the Company, that are in Consultant's possession or under its control.
(b) Consultant's representations, warranties, and obligations
contained in this Agreement shall survive the termination of Consultant's
relationship with the Company.
(c) Following any termination of Consultant's relationship with the
Company, Consultant will fully cooperate with the Company in all matters
relating to Consultant's continuing obligations under this Agreement.
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(d) Consultant hereby grants consent to notification by the Company
to any of Consultant's future employers or companies Consultant consults with
about Consultant's rights and obligations under this Agreement.
(e) Upon termination of Consultant's relationship with the Company,
Consultant will execute a Certificate acknowledging compliance with this
Agreement in the form reasonably requested by the Company.
7. Injunctive Relief. Consultant acknowledges that its failure to carry
out any obligation under this Agreement, or a breach by Consultant of any
provision herein, will constitute immediate and irreparable damage to the
Company, which cannot be fully and adequately compensated in money damages and
which will warrant preliminary and other injunctive relief, an order for
specific performance, and other equitable relief. Consultant further agrees that
no bond or other security shall be required in obtaining such equitable relief
and Consultant hereby consents to the issuance of such injunction and to the
ordering of specific performance. Consultant also understands that other action
may be taken and remedies enforced against Consultant.
8. Modification. No modification of this Agreement shall be valid unless
made in writing and signed by both parties.
9. Binding Effect. This Agreement shall be binding upon Consultant's
successors and assign, heirs, executors, assigns and administrators and is for
the benefit of the Company and its successors and assigns.
10. Governing Law. This Agreement shall be construed in accordance with,
and all actions arising under or in connection therewith shall be governed by,
the internal laws of the State of New York (without reference to conflict of law
principles).
11. Integration. This Agreement sets forth the parties' mutual rights and
obligations with respect to proprietary information, prohibited competition, and
intellectual property. It is intended to be the final, complete, and exclusive
statement of the terms of the parties' agreements regarding these subjects. This
Agreement supersedes all other prior and contemporaneous agreements and
statements on these subjects, and it may not be contradicted by evidence of any
prior or contemporaneous statements or agreements. To the extent that the
practices, policies, or procedures of the Company, now or in the future, apply
to Consultant and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control unless changed in writing by the
Company.
12. Construction. This Agreement shall be construed as a whole, according
to its fair meaning, and not in favor of or against any party. By way of example
and not limitation, this Agreement shall not be construed against the party
responsible for any language in this Agreement. The headings of the paragraphs
hereof are inserted for convenience only, and do not constitute part of and
shall not be used to interpret this Agreement.
13. Attorneys' Fees. Should either Consultant or the Company, or any heir,
personal representative, successor or permitted assign of either party, resort
to legal proceedings to enforce this Agreement, the prevailing party (as defined
in New York statutory law) in such legal proceeding shall be awarded, in
addition to such other relief as may be granted, attorneys' fees and costs
incurred in connection with such proceeding.
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14. Severability. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or circumstance,
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement and such term, provision, covenant or condition as applied to other
persons, places and circumstances shall remain in full force and effect.
15. Rights Cumulative. The rights and remedies provided by this Agreement
are cumulative, and the exercise of any right or remedy by either the Company or
Consultant (or by that party's successor), whether pursuant hereto, to any other
agreement, or to law, shall not preclude or waive that party's right to exercise
any or all other rights and remedies. This Agreement will inure to the benefit
of the Company and Consultant, and its successors and assigns.
16. Nonwaiver. The failure of either the Company or Consultant, whether
purposeful or otherwise, to exercise in any instance any right, power or
privilege under this Agreement or under law shall not constitute a waiver of any
other right, power or privilege, nor of the same right, power or privilege in
any other instance. Any waiver by the Company or by Consultant must be in
writing and signed by a person duly authorized by the Company or Consultant, as
applicable.
17. Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if it is in writing, and if and when it is hand delivered or sent by
regular mail, with postage prepaid, to the Company's or Consultant's principal
office, as the case may be.
18. Agreement to Perform Necessary Acts. Each party agrees to perform any
further acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
19. Assignment. This Agreement may not be assigned by either party without
the Company's prior written consent.
20. Compliance with Law. Each party agrees to abide by all federal, state,
and local laws, ordinances and regulations.
21. Consultant Representatives. Consultant agrees to cause all employees,
consultants, agents and other representatives to comply with the provisions
hereof.
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14
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of May
7, 2001.
CAUTION: THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND AFFECTS
THE CONSULTANT'S RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL PROPERTY THE
CONSULTANT MAY DEVELOP.
XXXXXXXX XXXXXXXXX & CO., INC.
By:
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Name:
Title:
E-SYNC NETWORKS, INC.
By:
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Name:
Title:
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