Exhibit 10.3
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered into in
duplicate and shall be effective on April 12, 2004 ("Effective Date"), by and
between Aegis Assessments, Inc., a Delaware corporation ("Corporation"), and Xxx
X. Xxxxxxx, Xx. ("Consultant").
RECITALS
A. It is the desire of the Corporation to promote the use of the
Corporation's products and technologies in homeland defense and other
applications on the East Coast of the United States, generally, and
the States of New York and Connecticut, specifically (hereinafter the
"Territory").
B. It is further the desire of the Corporation to engage the services of
the Consultant to consult with the Corporation regarding the sales,
marketing, development and commercial exploitation of the
Corporation's products and technologies, including but not limited to
the Aegis SafetyNet(TM)Radio Bridge, a product which creates a
"bridge" between radios operating on different frequencies, and the
SafetyNet(TM)Wireless Life Safety System (WLSS), a commercial life
safety product (for purposes of this Agreement, the Aegis
SafetyNet(TM)Radio Bridge and the WLSS, as well as related wireless
technology and software, may be collectively referred to herein as the
"Products"). It is further the desire of the Corporation that
Consultant assist the Corporation in developing points of contact with
various public safety agencies located in the Territory; that
Consultant identify companies as potential channel partners,
distributors or subdistributors for inventorying, selling, servicing
and distribution of the Products and related wireless technology and
software (collectively, the "SafetyNet(TM)") in the Territory; and,
further, that the Consultant contact law enforcement agencies and
government agencies in the Territory to promote the use of the
Products in homeland defense and other applications in the Territory.
C. It is the desire of the Consultant to so consult with the Board of
Directors of the Corporation ("Board") and the officers of the
Corporation concerning the matters specified in Recital B above; and
to further provide the Corporation with his expertise in sales,
marketing, business development and public relations to promote the
development and implementation of the SafetyNet(TM) with businesses
and government agencies throughout the Territory.
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NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of the parties
shall commence on the Effective Date and shall continue until and terminate on
April 12, 2006.
2. Consultations. The Consultant shall consult with the Board and the
officers of the Corporation, at reasonable times, concerning any issue of
importance regarding the matters specified in Recital B above. The parties agree
that time is of the essence due to the nature of this Agreement and the
consulting services to be provided to the Corporation by Consultant hereunder.
Therefore, Consultant shall make his best efforts to remain accessible to the
Corporation at all reasonable times and without regard to Consultant's physical
location. Consultant therefore shall keep the Corporation supplied with
Consultant's mobile telephone number, email address, current residence address,
office address, residence telephone number, office telephone number, pager
number, and all other reasonable means of contacting Consultant. Consultant
recognizes and agrees that his failure to communicate with the Corporation at
reasonable times will deprive the Corporation of the benefits of this Agreement
and is cause for terminating this Agreement.
3. Office Facilities. During the term of this Agreement the Consultant
shall, at his own expense, maintain physical office facilities located in the
State of New York sufficient for the purposes contemplated by this Agreement.
The Consultant shall bear his own costs related to leasing, maintaining and
operating such office facilities.
4. No Management Power of Consultant. The business affairs of the
Corporation and the operation of the business of the Corporation shall be
conducted by the officers and administrative staff and employees of the
Corporation. The Consultant shall not have any power or obligation of direction,
management, supervision or control of the officers, administrative staff or
other employees of the Corporation or otherwise be involved with the management
of the business of the Corporation during the term of this Agreement.
5. Authority to Contract. The Consultant shall have no power to, and the
Consultant shall not, obligate the Corporation in any manner whatsoever to any
contract, agreement, undertaking, commitment or other obligation.
6. Compensation. In lieu of cash compensation, the Corporation shall issue
to Consultant one million one hundred thousand (1,100,000) shares of the
Corporation's common stock on the Effective Date and, provided Consultant
performs his obligations hereunder, the Corporation shall register one hundred
thousand (100,000) of such shares with the Securities and Exchange Commission
for resale by the Consultant. The Corporation shall register and deliver such
shares to the Consultant within ninety (90) days. Consultant shall make a
monthly report to the Corporation's Board of Directors, specifying the services
performed in the preceding month.
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7. Services of Consultant Not Exclusive. The Consultant shall devote such
time as is necessary to fulfill his obligations to the Corporation specified in
this Agreement. The Consultant may represent, perform services for, and be
employed by, any additional persons as the Consultant, in the Consultant's sole
discretion, determines to be necessary or appropriate; provided, however, that
such performance by Consultant does not interfere with Consultant's performance
of services to the Corporation specified in this Agreement.
8. Relationship Created. The Consultant is not an employee of the
Corporation for any purpose whatsoever, but is an independent contractor. The
Corporation is interested only in the results obtained by the Consultant. The
Consultant shall have the sole and exclusive control of the manner and means of
performing. Accordingly, and without limitation, the Corporation shall not have
the right to require the Consultant to collect accounts, investigate customer or
shareholder complaints, attend meetings, periodically report to the Corporation,
follow prescribed itineraries, keep records of business transacted, make
adjustments, conform to particular policies of the Corporation, or do anything
else outside of requiring the Consultant to consult with the Corporation
concerning the matters specified in this Agreement. All expenses and
disbursements, including, but not limited to, those for travel and maintenance,
entertainment, office, clerical and general administrative expenses, that may be
incurred by the Consultant in connection with this Agreement shall be borne and
paid wholly and completely by the Consultant, and the Corporation shall not be
in any way responsible or liable therefor.
9. New Developments. Consultant agrees that all designs, plans, reports,
specifications, drawings, inventions, processes, and other information or items
produced by Consultant concerning the development and implementation of the
Products or any new or successor products or technologies will be assigned to
the Corporation as the sole and exclusive property of the Corporation and the
Corporation's assigns, nominees and successors, as will any copyrights, patents
or trademarks obtained by Consultant while performing services under this
Agreement. On request and at the Corporation's expense, Consultant agrees to
help the Corporation obtain patents and copyrights for any new developments.
This includes providing data, plans, specifications, descriptions,
documentation, and other information, as well as assisting the Corporation in
completing any required application or registration.
10. Non-Disclosure of Proprietary and Confidential Information By
Consultant. During the term of this Agreement, Consultant may have access to
Corporation Proprietary Information (as used in this Agreement, the term
"Corporation Proprietary Information" shall mean and include, without
limitation, any and all marketing and sales data, plans and strategies,
financial projections, client lists, prospective client lists, promotional
ideas, data concerning the Corporation's services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable, "know-how",
training and sales techniques, and any other information of a similar nature
disclosed to Consultant or otherwise made known to Consultant as a consequence
of or through this Agreement during the term hereof. The term Corporation
Proprietary Information shall not include any information that (i) at the time
of the disclosure or thereafter is or becomes generally available to and known
by the public, other than as a result of a disclosure by Consultant or any agent
or representative of Consultant in violation of this Agreement, or (ii) was
available to Consultant on a non-confidential basis from a source other than the
Corporation, or any of the Corporation's officers, directors, employees, agents
or other representatives) or other information and data of a secret and
proprietary nature which the Corporation desires to keep confidential.
Consultant (and any of his affiliates, related entities, partners, agents and/or
employees) agrees and acknowledges that the Corporation has exclusive
proprietary rights to all Corporation Proprietary Information, and Consultant
hereby assigns to the Corporation all rights that he might otherwise possess in
any Corporation Proprietary Information. Except as required in the performance
of Consultant's duties to the Corporation, Consultant will not at any time
during or after the term hereof, directly or indirectly use, communicate,
disclose, disseminate, lecture upon, publish articles or otherwise put in the
public domain, any Corporation Proprietary Information. Consultant agrees to
deliver to the Corporation any and all copies of Corporation Proprietary
Information in the possession or control of Consultant upon the expiration or
termination of this Agreement, or at any other time upon request by the
Corporation. The provisions of this section shall survive the termination of
this Agreement.
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11. Non-Competition and Non-Circumvention by Consultant. In consideration
and recognition of the fact that Consultant has access to Corporation
Proprietary Information under the terms and provisions of this Agreement and
that the Corporation will be introducing Consultant to various customers and
potential customers, product manufacturers, retailers and distributors,
Consultant represents, warrants and covenants to the Corporation as follows:
(a) Consultant shall at no time disclose to any person, without the
Corporation's prior written consent, any of the terms, conditions or
provisions specified in this Agreement unless such disclosure is
lawfully required by any federal governmental agency or is otherwise
required to be disclosed by law or is necessary in any legal
proceeding regarding the subject matter of this Agreement.
(b) During the term of this Agreement, Consultant shall not circumvent the
Corporation for the purpose of transacting any business with any
person or entity which business shall interfere with any relationship
whatsoever between such person or entity and the Corporation, or use
any Corporation Proprietary Information to compete with the business
of the Corporation. Consultant shall not solicit any of the
Corporation's employees, independent contractors or agents for
employment. Consultant shall not hire or engage in any way, any
enterprise or person that competes with, or is engaged in a business
substantially similar to, the business of the Corporation.
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(c) Consultant shall not for a period of two (2) years immediately
following the termination of this Agreement with Corporation, either
directly or indirectly (i) make known to any person, firm or
corporation the names or addresses of any of the Corporation's clients
or any other information pertaining to them or the Corporation's
products or services; (ii) call on, solicit, or take away, or attempt
to call on, solicit or take away any of the Corporation's clients
either on Consultant's behalf or that of another person, firm or
corporation.
(d) Consultant shall not, during the term hereof or for a period of two
(2) years following such term, enter into an agreement or contract
directly with any manufacturer, retailer or distributor introduced to
Consultant by the Corporation for any services provided by the
Corporation herein or for any similar services.
(e) Consultant acknowledges and agrees that the representations,
warranties and covenants made by Consultant and set forth in this
section are material and that the Corporation would not enter into
this Agreement without Consultant's making such representations,
warranties and covenants to the Corporation.
(f) Consultant acknowledges and agrees that any breach by Consultant of
the representations, warranties and covenants contained herein will
cause irreparable harm and loss to the Corporation, which harm and
loss cannot be reasonably or adequately compensated in damages in an
action at law. Therefore, Consultant expressly agrees that, in
addition to any other rights or remedies which the Corporation may
possess, the Corporation shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of the representations,
warranties and covenants made by Consultant herein.
(g) The terms and provisions of this section shall survive the termination
of this Agreement for a period of two (2) years.
12. Indemnification. Each party shall defend and hold the other party
harmless from and against, and shall indemnify the other party for, any loss,
liability, damage, judgment, penalty or expense (including administrative costs
and expenses, attorney's fees and costs of defense) suffered or incurred by any
person, or to any property, in relation to any action or inaction taken by such
party, whether intentional, negligent or otherwise, or by any of such party's
affiliates, directors, officers, employees, representatives or agents (including
attorneys, accountants and financial advisors).
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13. Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future statutes, orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions defined by this Agreement.
14. Notices. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by facsimile transmission and
shall be deemed to have been duly given (i) on the date of service, if delivered
in person or by facsimile transmission (with the facsimile confirmation of
transmission receipt serving as confirmation of service); or (ii) 48 hours after
mailing by first class, registered or certified mail, postage prepaid, and
properly addressed as follows:
If to the Corporation: Aegis Assessments, Inc.
0000 X. Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxxxx, XX 00000
If to the Consultant: Xxx X. Xxxxxxx, Xx.
00-00 000xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
or at such other address as the party affected may designate in a written notice
to such other party in compliance with this paragraph.
15. Entire Agreement. This Agreement constitutes the final, complete, and
exclusive agreement between the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral
negotiations, agreements, and understandings. This Agreement may be amended only
by an instrument in writing that expressly refers to this Agreement and
specifically states that such instrument is intended to amend this Agreement and
is signed on behalf of both parties.
16. Execution in Counterparts. This Agreement many be executed in several
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
17. Choice of Law and Consent to Jurisdiction. All questions concerning the
validity, interpretation or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties, shall be governed by, and resolved in accordance with, the laws of the
State of California. Any and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be litigated in
courts having situs within the State of California.
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18. Assignability. Neither party shall sell, assign, transfer, convey or
encumber this Agreement or any right or interest in this Agreement or pursuant
to this Agreement, or suffer or permit any such sale, assignment, transfer or
encumbrance to occur by operation of law without the prior written consent of
the other party.
19. Consent to Agreement. By executing this Agreement, each party, for
himself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
20. Attorney's Fees. In the event of a legal proceeding between the parties
to enforce a provision under this Agreement, the prevailing party to such action
shall be entitled to recover from the other party its reasonable attorney's fees
and costs for participating in the legal action.
21. Severability. To the extent any provision of this Agreement shall be
determined to be unlawful or otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder of this Agreement,
and this Agreement shall be reformed to the extent necessary to carry out its
provisions to the greatest extent possible. In the absence of such reformation,
such part of such provision shall be considered deleted from this Agreement and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation of
the foregoing, should the duration or geographical extent of, or business
activities covered by any provision of this Agreement be in excess of that which
is valid and enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may validly
and enforceably be covered. To the extent any provision of this Agreement shall
be declared invalid or unenforceable for any reason by any Governmental or
Regulatory Authority in any jurisdiction, this Agreement (or provision thereof)
shall remain valid and enforceable in each other jurisdiction where it applies.
Both parties acknowledges the uncertainty of the law in this respect and
expressly stipulate that this Agreement shall be given the construction that
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
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IN WITNESS WHEREOF the parties have executed this Agreement in duplicate
and in multiple counterparts, each of which shall have the force and effect of
an original, on the date specified in the preamble of this Agreement.
CORPORATION: CONSULTANT:
Aegis Assessments, Inc.,
a Delaware corporation
By: /s/ H. Xxxxxxx Edge /s/ Xxx X. Xxxxxxx, Xx.
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H. Xxxxxxx Edge Xxx X. Xxxxxxx, Xx.
Its: President
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