AMENDED AND RESTATED CONSULTING AGREEMENT
AMENDED
AND RESTATED CONSULTING AGREEMENT
This
Amended and Restated Consulting Agreement (“Agreement”) is made as of May 24,
2006 by and between Xxx Xxxxxxxxx, an individual whose principal address is
00
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the “Consultant”), and US Global
Nanospace, Inc., a Delaware corporation (the “Company”), and is made with
reference to the following:
RECITALS
A. This
Agreement amends and restates in its entirety the Consulting Agreement dated
as
of March 22, 2006 by and between the Consultant and the Company.
B. The
Company is a publicly traded company in the business of developing products
for
a wide variety of defense and health and safety applications.
C. The
Company wishes to retain the Consultant, and the Consultant wishes to be
retained by the Company.
NOW,
THEREFORE,
for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Consultant agree as follows:
AGREEMENT
1. Term.
The
Company retains the Consultant and the Consultant accepts this appointment
with
the Company for the period beginning on May 24, 2006 and ending on May 24,
2007
(the “Term”). Unless otherwise terminated pursuant to section 6 below, this
Agreement will be automatically renewed after May 24, 2007, unless either party
gives notice to the other at least thirty (30) days prior to the expiration
of
the Term that the party desires to renegotiate this Agreement. Thereafter,
the
terms and conditions of this Agreement shall apply until the parties reach
an
agreement modifying them. If an agreement is not reduced to writing and executed
by the parties within thirty (30) days of the end of the specified period,
then
this Agreement shall continue on a month to month basis until terminated by
written notice given by either party at least thirty (30) days prior to the
end
of any monthly period.
2. Duties
of Consultant.
The
Consultant agrees to perform the services described in Exhibit “A”, attached to
this Agreement and made a part of it. The Consultant will determine the method,
details and means of performing the services.
3. Compensation. The
Company shall pay to the Consultant as compensation for the Services the sum
equaling $17,000 per month during the Term, payable in registered shares of
the
Company's common stock to be issued pursuant to the Company's Amended and
Restated 2002 Stock Plan (“S-8 Stock”), valued at the closing price of the
common stock on the last trading day of each month. For
the
partial month in which this Agreement is executed, Consultant shall receive
a
pro-rated amount of compensation and the shares issuable for such pro-rated
month shall be valued as of the last trading day of the month.
4. Nondisclosure.
Consultant acknowledges
and agrees that:
(a) Any
and
all information disclosed by the Company and/or any of its affiliates to the
Consultant and/or any of his agents, representatives or affiliates in connection
with this Agreement, regardless of the method or purpose of disclosure, is
considered confidential information, unless such information falls within the
exceptions as stated in this section (collectively, “Confidential
Information”).
(b)
Confidential
Information shall be held and retained in trust and in a manner adequate to
protect the Company’s proprietary rights and interests and such information
shall not be disclosed to others or used for purposes other than performing
under this Agreement without the Company’s prior written consent.
Notwithstanding the foregoing, the Consultant may disclose Confidential
Information, the fact that Confidential Information has been made available
or
any other conditions or facts with respect to the subject matter of this
Agreement, where the Consultant believes in good faith that such disclosure
must
be made in order to not commit a violation of law (which may be statutory,
regulatory, judicial or otherwise). In the event that the Consultant or any
of
his representatives are required, in the opinion of counsel (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process), or requested by any governmental
authority, to disclose any information supplied to him or to any of his
representatives in the course of his dealings with the Company or its
representatives, the Consultant agrees to provide the Company with prompt
written notice of such request(s) so that it may, with the assistance and
cooperation of the Consultant, seek an appropriate protective order and/or
waive
the Consultant’s compliance with the provisions of this Agreement.
(c) Confidential
Information, as used in this section, does not include information
that:
(d) Is
or
becomes legally known and available to the public prior to or subsequent to
its
disclosure to the Consultant and that is not material information as described
in Securities and Exchange Commission Staff Accounting Bulletin 99;
(e) Was
acquired by the Consultant from a third party who was lawfully in possession
of
the information and under no obligation to the Company to maintain its
confidentiality; or
(f) Was
independently developed by the Consultant, without utilizing the Confidential
Information of the Company.
5. Effect
of Merger.
Anything
to the contrary herein notwithstanding, this Agreement may be terminated by
the
Company immediately upon notice to the Consultant in the event of any voluntary
or involuntary dissolution of the Company resulting from any merger or
consolidation in which the Company is not the surviving corporation or any
transfer of all or substantially all of the assets of the Company.
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6. Termination.
6.1 Termination
on Notice. Either
party may terminate this Agreement at any time by giving thirty (30) days
written notice to the other party. Upon termination of this Agreement, the
terms
of this Agreement will remain in effect with respect to any particular
Confidential Information until the Consultant can document that it falls into
one of the exceptions stated in sections 4(d), 4(e), and 4(f).
6.2 Termination
on Default. Should
either party default in the performance of this Agreement or materially breach
any of its provisions, the non-breaching party may terminate this Agreement
by
giving written notification to the breaching party. Termination shall be
effective immediately on receipt of said notice. For purposes of this section,
material breaches of this Agreement shall include, but not be limited to, (i)
non-payment of compensation by the Company after twenty (20) days written demand
for payment; (ii) the willful breach or habitual neglect by the Consultant
of
the duties which it is required to perform under the terms of this Agreement;
(iii) the Consultant’s commission of acts of dishonesty, fraud, or
misrepresentation; (iv) the failure by the Consultant to conform to all laws
and
regulations governing the Consultant’s duties under this Agreement; or (v) the
commission by the Consultant of any act that tends to bring the Company into
public scandal or which will reflect unfavorably on the reputation of the
Company.
6.3 Automatic
Termination. This
Agreement terminates automatically upon the death or disability of the
Consultant.
6.4 Return
of Company Property.
Upon the
termination or expiration of this Agreement, the Consultant shall immediately
transfer to the Company all files (including, but not limited to, electronic
files), records, documents, drawings, specifications, equipment and similar
items in its possession relating to the business of the Company or its
Confidential Information (including the work product of the Consultant created
pursuant to this Agreement).
7. Status
of Consultant.
The
Consultant understands and agrees that he is an independent contractor, and
that
he and his employees, if any, are not
employees of the Company and that they shall not
be
entitled to receive employee benefits from the Company, including, but not
limited to, sick leave, vacation, retirement, death benefits, an automobile,
and/or participation in profits earned by Company. The Consultant shall be
responsible for providing, at the Consultant’s expense and in the Consultant’s
name, to the extent applicable, disability, worker’s compensation or other
insurance as well as licenses and permits usual or necessary for conducting
the
services hereunder. Furthermore, the Consultant shall pay, when and as due,
any
and all taxes incurred as a result of the Consultant’s compensation hereunder,
including but not limited to, estimated taxes. The Consultant hereby agrees
to
indemnify the Company for any claims, losses, costs, fees, liabilities, damages
or injuries suffered by the Company arising out of the Consultant’s breach of
this section.
8. Representations
by Consultant.
The
Consultant represents that the Consultant has the qualifications and ability
to
perform the services in a professional manner. The Consultant shall indemnify,
defend, and hold harmless the Company, and the Company’s officers, directors,
shareholders and representatives from and against any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including, without limitation, interest, penalties, and reasonable
attorney fees and costs, that the Company may incur or suffer and that arise,
result from, or are related to any breach or failure of the Consultant to
perform any of the representations, warranties and agreements contained in
this
Agreement.
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9. Business
Expenses.
The
Company shall reimburse the Consultant for all reasonable, pre-approved business
expenses incurred by the Consultant provided that each such expenditure
qualifies as a proper deduction on the Company’s federal and state income tax
return. Each such pre-approved expenditure shall be reimbursable only if the
Consultant furnishes to the Company adequate records and other documentary
evidence required by federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of that expenditure as
an
income tax deduction.
10. Notices.
Unless
otherwise specifically provided in this Agreement, all notices or other
communications (collectively and severally called “Notices”) required or
permitted to be given under this Agreement, shall be in writing, and shall
be
given by: (A) personal delivery (which form of Notice shall be deemed to have
been given upon delivery), (B) by telegraph or by private airborne/overnight
delivery service (which forms of Notice shall be deemed to have been given
upon
confirmed delivery by the delivery agency), or (C) by electronic or facsimile
or
telephonic transmission, provided the receiving party has a compatible device
or
confirms receipt thereof (which forms of Notice shall be deemed delivered upon
confirmed transmission or confirmation of receipt). Notices shall be addressed
to the address set forth in the introductory section of this Agreement, or
to
such other address as the receiving party shall have specified most recently
by
like Notice, with a copy to the other party.
11. Choice
of Law and Venue.
This
Agreement shall be governed according to the laws of the State of Delaware.
Venue for any legal or equitable action between the Company and the Consultant
that relates to this Agreement shall be in the state or Federal courts sitting
in the City of New York, Borough of Manhattan, State of New York.
12. Entire
Agreement.
This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the services to be rendered by the
Consultant to the Company and contains all of the covenants and agreements
between the parties with respect to the services to be rendered by the
Consultant to the Company in any manner whatsoever. Each party to this agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf
of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding
on either party.
13. Counterparts.
This
Agreement may be executed manually or by facsimile signature in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute but one and the same instrument.
14. Arbitration.
The
parties hereby agree that all controversies, claims and matters of difference
shall be resolved by binding arbitration before the American Arbitration
Association (the “AAA”) located in the City of New York, Borough of Manhattan,
State of New York, according to the rules and practices of the AAA from
time-to-time in force; provided
however
that the
parties hereto reserve their rights to seek and obtain injunctive or other
equitable relief from a court of competent jurisdiction, without waiving the
right to compel such arbitration pursuant to this section. The arbitrator shall
apply Delaware law in rendering a decision.
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15. Severability.
If any
term or provision of this Agreement or the application thereof to any person
or
circumstance shall, to any extent, be determined to be invalid, illegal or
unenforceable under present or future laws effective during the term of this
Agreement, then and, in that event: (A) the performance of the offending term
or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused provision as may be
possible and be legal, valid and enforceable, and (B) the remaining part of
this
Agreement (including the application of the offending term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby and shall continue
in
full force and effect to the fullest extent provided by law.
16. Preparation
of Agreement.
It
is
acknowledged by each party that such party either had separate and independent
advice of counsel or the opportunity to avail itself or himself of the same.
In
light of these facts it is acknowledged that no party shall be construed to
be
solely responsible for the drafting hereof, and therefore any ambiguity shall
not be construed against any party as the alleged draftsman of this
Agreement.
17. Recitals
Incorporated. The
recitals of this Agreement are incorporated herein and made a part
hereof.
WHEREFORE,
the
parties have executed this Agreement on the date first written
above.
| “CONSULTANT” | ||
|
Xxx Xxxxxxxxx |
||
| “COMPANY” | ||
| US Global Nanospace, Inc. | ||
| By: | ||
|
Xxxx Xxxxxxxx, Chief Executive Officer |
||
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EXHIBIT
“A”
DUTIES
OF CONSULTANT
Consultant
shall perform the following duties, subject to and in compliance with applicable
law or regulation:
1. Management
consulting services, including, without limitation, services related to the
marketing, demonstration, development, sale or licensing of the Company’s
MAPSANDS technology.
2. Such
other duties as the parties may mutually agree for which the Consultant may
be
compensated lawfully in S-8 Stock.
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