CONSULTING AGREEMENT
Exhibit 10.8
THIS CONSULTING AGREEMENT (the “Agreement”) is made effective this
day of
(the “Effective Date”), between ,
an individual, whose address is
(the “Consultant”), and National Credit Xxxxxx.Xxx, LLC, a Florida limited liability company, whose
principal place of business is located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx
00000 (the “Company”).
Recitals
WHEREAS, as a result of the sale of the membership units in the Company pursuant to the
Securities Purchase Agreement, dated as of even date herewith, among IFTH Acquisition Corp.
(“IFTH”), the Sellers (as such term is defined therein) and the Company (the “Acquisition”), the
Company is in need of consulting assistance for operation of the Company post-Acquisition;
WHEREAS, the Consultant possesses considerable industry knowledge and experience that is
valuable to the Company; and
WHEREAS, the Consultant has agreed to perform consulting work for the Company with respect to
the operation of the Company post-Acquisition.
Agreement
NOW, THEREFORE, in consideration of the premises and mutual agreements herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Term. The term of this Agreement shall commence on the Effective Date and shall
continue for a period of two (2) years from the Effective Date (the “Term”), unless otherwise
terminated as provided herein. The Company and the Consultant may negotiate to extend the term of
this Agreement and the terms and conditions under which the relationship shall continue. The
Company may cancel this agreement on five (5) days notice to Consultant, as per section 6 below.
2. Services. The Company retains Consultant to provide the following services (the
“Services”) to the Company during the Term: (i) assist the Company on an as needed basis in
securing a smooth transition of its business following the consummation of the Acquisition; (ii)
perform any and all executive duties related to Company business as and when requested by the Chief
Executive Officer, President and Vice President of IFTH, including without limitation, assisting
the Company with its operations, strategies, licenses, permits, employees, customers, vendors and
governmental agency matters affecting the Company’s business; and (iii) report directly to the
Company’s Chief Executive Officer on no less than a weekly basis. Consultant acknowledges that he
may be called upon to render the Services, and agrees to make himself available to the Company on
an as-needed basis at reasonable time and upon reasonable notice.
3. Compensation and Expenses.
a. During the Term, the Company will pay Consultant, as compensation for the
Services, $ ,
which amount shall be paid on the last day of each month during the Term.
b. The Company shall pay or reimburse the Consultant for all reasonable and necessary
travel and other reasonable expenses incurred by him, and approved by the Chief Executive
Officer, in connection with the performance of his duties hereunder in accordance with the
policies and procedures of the Company as in effect from time to time. In order that the
Company reimburse the Consultant for such allowable expenses, the Consultant shall furnish to
the Company, in a timely fashion, written documentation in connection with such expenses and
shall furnish such other documentation and accounting as the Company may from time to time
reasonably request.
c. The Company shall provide Consultant with an automobile allowance
of $ per month
payable on the last day of each month during the Term. Consultant shall be responsible for
premiums for insurance for the automobile and occupants, and shall pay all maintenance and
operating costs (including fuel costs) appropriate to maintain the automobile.
d. During the Term, the Company shall provide Consultant with and shall pay for premiums
for health insurance coverage and benefits.
e. The Consultant shall be granted options to purchase shares of IFTH common
stock (the “Options”) under the IFTH 2001 Flexible Stock Plan and will enter into a separate
Stock Option Award Agreement, in the form substantially attached hereto as Exhibit A, in
connection therewith. IFTH shall issue the Options to the Consultant as soon as
administratively practicable following the effective date of this Agreement, the Options shall
vest immediately and have an exercise price equal to $ , provided that such exercise price
shall be no less than the fair market value at the time of grant.
4. Independent Contractor.
a. For all purposes of this Agreement, and the transactions contemplated hereby, Consultant
is and shall be deemed to be an independent contractor of the Company and Consultant shall not
have the right, without the prior written consent of the Company, to enter into any agreement on
behalf of the Company or any of its affiliates or to do any other act which may subject the
Company or any of its affiliates to liability or obligate the Company or any of its affiliates
in any manner whatsoever. Nothing in this Agreement shall be deemed or construed (i) to create
a partnership or joint venture between Consultant and the Company, (ii) to cause Consultant to
be responsible in any way for the debts, liabilities or obligations of the Company, or (iii) to
constitute Consultant as an employee, officer or agent of the Company.
b. The Consultant shall not use the service of any other person, entity or organization in
the performance of the Consultant’s duties without the prior written consent of the Company.
Should the Company consent to the Consultant’s use of the services of any
other person, entity or organization, no information regarding the Services to be performed
under this Agreement shall be disclosed to that person, entity or organization until such
person, entity or organization has executed an agreement to protect the confidentiality of the
Company’s Confidential Information (as defined below) and the Company’s absolute and complete
ownership of all right, title and interest in the work performed under this Agreement.
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5. Nature of Relationship. The nature of this Agreement is strictly civil, and is not
intended by either of the parties hereto to establish an employer/employee relationship.
Consultant shall not have any right to the labor benefits established for employees under an
employer/employee relationship pursuant to the laws of Florida. The Company shall not be liable
for withholding tax, social security, workmen’s compensation or other expense or liability
attributable to an employer/employee relationship under Florida law.
6. Termination.
a. The Company may terminate this Agreement at any time, with or without Cause (as defined
below), upon five (5) days prior written notice to Consultant. The Company shall also have the
right to terminate this Agreement immediately without notice for Cause (as defined below) or if
Consultant dies or becomes disabled and is unable to adequately perform any of the Services.
“Cause” occurs when the Consultant commits an unauthorized or illegal act intentionally and in
bad faith against the interest of the Company causing a material pecuniary loss to the Company.
b. In the event this Agreement is terminated by the Company without Cause, the Consultant
will continue to receive the compensation in sections (a), (c) and (d) of Section 3 during the
remainder of the Term, on the same schedule as described therein. In the event this Agreement is
terminated for Cause, compensation that is otherwise payable under this Agreement to Consultant
shall be paid through the effective date of termination. Notwithstanding the foregoing, in the
event this Agreement is terminated as a result of Consultant’s death, then the Company shall pay
to the estate of Consultant the compensation that would otherwise be payable under this
Agreement through the date of death. Receipt by Consultant or the estate, as applicable, of the
compensation paid by the Company pursuant to this Section 6(b) shall serve as full and final
settlement of all amounts payable to Consultant under this Agreement.
7. Confidential Information. In performing his obligations under this Agreement,
Consultant may have access to and receive certain Confidential Information (as defined below) about
the Company and IFTH which must be kept in confidence. For purposes of this Agreement,
“Confidential Information” includes, but is not limited to, customer lists, business strategies,
the names and addresses of prospective customers, procedures manuals, marketing plans, know-how,
data, processes, techniques, programs, designs, finances and sales plans of the Company and IFTH,
which either the Company or IFTH treat as Confidential Information. The scope of this section
relating to confidentiality shall apply irrespective of the form or format of the information
(whether oral, written, graphic, and whether recorded on paper, magnetic, electronic or other
media) and irrespective of whether or not the material is marked “confidential” or “proprietary.”
Confidential Information does not include information, which at the
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time of disclosure is in the public domain so long as the information was not disclosed by Consultant in
violation of any obligation of confidentiality owed to the Company. Consultant agrees that all
Confidential Information constitutes proprietary information and is therefore confidential in
nature and shall be used only for the purpose of carrying out this Agreement and shall remain sole
property of the Company. Consultant further agrees that he shall limit the dissemination of the
Confidential Information to his employees, agents and/or representatives whose duties justify their
need to know such Confidential Information, and then only provided that there is a clear
understanding by such individuals of their need to maintain the confidential and proprietary nature
of such information and to restrict its uses to the purposes specified herein and such person’s
written agreement to abide by the terms of this Section 7. Consultant agrees that it shall remain
responsible for any breaches of this Section 7 committed by any of his employees, agents or
representatives. This Section 7 shall survive the expiration and termination of this Agreement and
continue in full force and effect forever thereafter.
8. Return of Documents and Property. Upon the termination of the Consultant’s engagement
with the Company or at any other time upon the request of the Company, the Consultant (or his heirs
or personal representatives) (i) shall deliver to the Company all memoranda, disks, files, notes,
records or other documents which contain or are based upon Confidential Information and shall not
retain any copies thereof in any format or storage medium (including computer disk or memory) and
(ii) use good faith efforts to purge from any computer system in his possession other than those
owned by and returned to the Company, all computer files which contain or are based upon any
Confidential Information and confirm such purging in writing to the Company.
9. Work Made for Hire; Inventions. The Consultant acknowledges that all original works of
authorship that are created, conceived, developed or reduced to practice by or under the direction
of the Consultant (solely or jointly with others) during the Term of this Agreement that directly
relate to the present or anticipated business activities of the Company (whether or not during
normal working hours, on the premises of the Company or using the Company’s equipment or
Confidential Information), including, without limitation, any designs, forms, formulas, materials,
products, deliverables, work product, developmental or experimental work, computer software
programs (including, without limitation, images, text, source code, object code, html code and
scripts), databases and other original works, and any upgrades, modifications or enhancements to
the foregoing and any related patents, patent applications, copyrights, copyright applications and
domain names (collectively referred to herein as the “Work Product”), are and shall remain the sole
and exclusive property of the Company, and all right, title and interest therein shall vest in the
Company and shall be deemed a “work made for hire”, as that term is defined in the United States
Copyright Act. Unless otherwise agreed to in writing by the Company, nothing in this or any other
agreement or in the course of dealing between the Consultant and the Company shall be construed to
grant to the Consultant or his affiliates any ownership right, title or interest in or license to
any of the Work Product. To the extent that title to any of such Work Product may not, by
operation of law, vest in the Company, or any of such Work Product may not be considered to be
“work made for hire”, all right, title and interest therein are hereby irrevocably assigned to the
Company without limitation. All Work Product shall belong exclusively to the Company with the
Company having the right to obtain and to hold in its own name copyright, patent and trademark
registrations or such other protection as may be appropriate to the subject matter, and any
extensions and renewals thereof.
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10. Indemnification.
a. The Consultant agrees that he shall indemnify and hold the Company free
and harmless from any claims, liabilities, damages, losses, costs or expenses,
including reasonable attorney’s fees, in respect of any claim, action, suit,
proceeding, or demand, in law or in equity caused by the gross recklessness or
intentional misconduct of the Consultant or any agent, employee, contractor or
representative of the Consultant.
b. The Company agrees that it shall indemnify and hold the Consultant free
and harmless from any claims, liabilities, losses, costs or expenses, including
reasonably attorney’s fees, in respect of any claim, action, suit, proceeding, or
demand, in law or in equity arising from the Consultant’s services or resulting
from the work performed on behalf of the Consultant by any agent, employee,
contractor or representative of the Consultant; provided however, that the Company
shall not indemnify the Consultant if such claims, liabilities, losses, costs or
expenses are directly or indirectly caused by the gross recklessness or intentional
misconduct of the Consultant or any agent, employee, contractor or representative
of the Consultant.
11. Survival; Injunctive Relief. The provisions of Sections 7 through 9 of this Agreement
shall survive the expiration or termination of this Agreement as set forth therein, regardless of
the circumstances or reasons for such termination, and inure to the benefit of the Company and its
affiliates. The restrictions set forth in Sections 7 through 9 are considered to be reasonable for
the purposes of protecting the business of the Company. The Company and Consultant acknowledge that
the Company would be irreparably harmed and that monetary damages would not provide an adequate
remedy to the Company if the covenants contained in Sections 7 through 9 were not complied with in
accordance with their terms. Accordingly, Consultant agrees that the Company shall be entitled to
injunctive and other equitable relief to secure the enforcement of these provisions, in addition to
any other remedy which may be available to the Company.
12. Consideration. Consultant acknowledges and recognizes the highly competitive nature of
the business and the goodwill attributable to the Company. Consultant further acknowledges and
recognizes that his agreement to adhere to the provisions and covenants in this Agreement,
including without limitation Sections 7 through 9, constitutes a significant part of the
consideration upon which the Company is relying in order to execute the Securities Purchase
Agreement and consummate the transactions contemplated thereby.
13. Rules and Regulations. Consultant shall perform all of the Services in a professional
manner, and in accordance with all applicable rules and regulations of any governmental agency
having jurisdiction over the subject matter.
14. Notices. Any notice, consent, or other communication required by the terms of this
Agreement shall be deemed to have been duly given if in writing and sent by certified or registered
mail, return receipt requested, postage prepaid, or overnight carrier, charges prepaid and
personally delivered to the parties at their respective addresses set forth above, or to such other
address designated by a party in a notice complying with the provisions of this paragraph.
All written communications sent in accordance with the provisions of this Section 14 shall be
deemed to have been received upon receipt if personally delivered or three business days after the
date of mailing or transmission by overnight carrier, as the case may be.
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15. Entire Agreement; Amendment. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof and supersedes any
prior agreement, proposal, negotiation or discussion relating thereto. No amendment or
modification to the terms of this Agreement shall be effective unless in writing and signed by the
parties hereto.
16. Assignment. Consultant recognizes and acknowledges that the Services are unique and
personal. Consultant may not assign any of his rights or delegate any of his duties or obligations
under this Agreement. The Company shall have the right to assign this Agreement without the
consent of Consultant. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns.
17. Headings. The section headings contained herein are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
18. No Waiver. No failure by either party to enforce or delay in enforcing any provision
of this Agreement shall affect the right to enforce or operate as a waiver of such right or any
other right under this Agreement by that party.
19. Governing Law/Jurisdiction and Venue. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the laws of conflicts) of the State of Florida. The
parties acknowledge that all of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in the State of Florida, and that, therefore, without limiting
the jurisdiction or venue of any other federal or state courts, each of the parties irrevocably and
unconditionally (a) agrees that any suit, action or legal proceeding arising out of or relating to
this Agreement may be brought in the state or federal courts of record of the Xxxxx xx Xxxxxxx xx
Xxxx Xxxxx Xxxxxx; (b) consents to the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts; and (d) agrees that service of any court paper may be
effected on such party by mail, as provided in this Agreement, or in such other manner as may be
provided under applicable laws or court rules in said state.
20. Attorneys’ Fees. If any legal action is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees,
costs, and necessary disbursements in addition to any other relief to which that party may be
entitled.
21. Severability. Wherever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any one or more of the
provisions of this Agreement shall for any reason be held invalid, illegal or unenforceable, such
provision shall be ineffective only to the extent of such invalidity, illegality or
unenforceability, without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
22. Counterparts. This Agreement may be executed in any number of counterparts, which may
be by facsimile, each of which shall constitute an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed as of the date set forth above.
| NATIONAL CREDIT XXXXXX.XXX, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| [Consultant] | ||||||
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