CONSULTING AGREEMENT
Exhibit
10.44
This
Consulting Agreement ("Agreement") entered into as
of May 1, 2009 (the "Effective
Date") by and between Location Based Technologies, Inc., a Nevada
corporation (“the Company”), and Xxxx Xxxxxxxx ("Consultant") and supersedes the Agreement between the
Company and Xxxx Xxxxxxxx dated January 2, 2008.
W I T N E S S E T
H:
WHEREAS,
Company is a technology and telecommunications company that has designed and
patented wireless communications products and systems combining advanced
wireless location based services technology to provide features
of utilizing a proprietary software system; and
WHEREAS,
Company wishes to assure itself of the services of Consultant for the period and
upon the terms and conditions provided in this Agreement; and
WHEREAS,
Consultant is willing to serve and to provide consulting to the Company on a
project basis for said period and upon the terms and conditions provided in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Period
a. Term. Subject
to the terms and conditions of this Agreement, Company hereby agrees to use
Consultant for maintaining the accounting office. The capacity as set forth
herein, commencing on the Effective Date and continuing in full force and effect
until such time as the execution of each Task is completed, but in no event
longer than three (3) years from the Effective Date (the "Consultancy
Term").
b. Duties and
Responsibilities. During the Term, Consultant agrees to devote
her working time and attention to the project and tasks faithfully and
efficiently perform all reasonable responsibilities and duties to the best of
her skills and abilities, in a competent and professional manner.
c. Services. During
the Term, Consultant further agrees not to engage in any business or perform any
services that are competitive with the business of or services provided by
Company or that may be deemed to constitute a conflict of
interest. Notwithstanding anything to the contrary contained in
Section
1(c), Consultant shall not be prohibited from (i) rendering services to
relatives, charitable or community organizations; (ii) managing her personal
investments in such manner as to not interfere with the performance of her
duties hereunder; or (iii) owning no more than five percent (5%) of the equity
securities of a corporation or other entity, so long as (A) such services or
activities are not rendered to any business which is competitive with the
business of Company, and (B) such services or activities do not in any way
interfere with the performance of Consultant's duties and responsibilities
hereunder.
2. Compensation. During
the Term, Consultant shall be entitled to the compensation package and benefits
provided below.
a. Base Consulting. During
the Consulting Term, in full consideration for the services to be rendered by
Consultant, Consultant shall receive cash compensation for worked performed set
at $5,000.00 per month with the exception of September and October which shall
be set at $15,000.00 per month. The Consultant will invoice the Company on a
monthly basis.
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b. Additional
Consulting. During the Consulting Term, the Company may
request Consultant to work on various projects outside the scope of Consultant’s
normal responsibilities. For such services, the Consultant will xxxx
the Company on a project basis and may be made paid in the form of cash or
stock.
b. Stock for
Performance. Consultant shall participate in the overall
performance of the company by receiving a grant of common stock shares based on
Performance as follows:
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NUMBER
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VESTING
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25,000
common stock shares for each fiscal quarter-end
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For
professional services rendered in connection with each quarterly 10-Q
review (February 28, May 31, and November 30). Common stock shares to be
issued in the month following quarter-end.
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50,000
common stock shares for fiscal year-end
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For
professional services rendered in connection with each annual 10-K audit
(August 31). Common stock shares to be issued in the month following
year-end.
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50,000
common stock shares
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Upon
the sale of 1,000,000 FCC approved PocketFinder
devices.
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*Should
the Company be acquired prior to two (2) years or prior to achieving the
milestones, the Company shall issue all common stock shares
immediately.
c. Resignation. Consultant
may resign her current position with Company and thereby terminate her
agreement, by giving thirty (30) days notice in writing. Upon
resignation, Consultant terminates any and all participation in the Warrants for
Performance as described in Section 2. b.
d. Termination of
Consulting. Company may Terminate Consulting at any time
during the Agreement by giving consultant thirty (30) days notice in
writing. Upon Termination, Company is obligated only to pay any and
all outstanding invoices. Earned Warrants may be held until their
exercise date.
3. Confidential
Information.
a. Company
Information. Consultant acknowledges that during the course of
employment, Consultant will have access to information about Company and that
Consultant's employment with Company shall bring Consultant into close contact
with proprietary information of Company. In recognition of the
foregoing, Consultant agrees at all times during and following Consultant's
employment with Company, to hold in confidence, and not to use, except for the
benefit of Company, or to intentionally disclose to any person, firm,
corporation or other entity without written authorization of Company, any
"Confidential Information" of Company which Consultant obtains or
creates. Consultant understands that "Confidential Information"
means any Company proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans, products,
services, suppliers, customer lists, prices and costs, markets, software,
developments, inventions, laboratory notebooks, processes, formulas, technology,
designs, drawing, engineering, hardware configuration information, marketing,
licenses, finances, budgets or other business information disclosed to
Consultant by Company in writing or by drawings of parts or equipment, or
created by Consultant during the period of Consultant 's term during working
hours. Consultant understands that "Confidential Information"
includes information pertaining to any aspects of Company's business which is
either information not known by actual or potential competitors of Company or is
proprietary information of Company or its customers or suppliers, whether of a
technical nature or otherwise. Consultant further understand that
Confidential Information does not include any of the foregoing items which have
become publicly known and made generally available through no wrongful act of
Consultant.
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b. Third Party
Information. Consultant recognizes that Company has received and in the
future will receive confidential or proprietary information from third parties
subject to a duty on Company's part to maintain the confidentiality of such
information and to use such information only for certain limited
purposes. Consultant agrees to hold all such confidential or
proprietary information in confidence and not to intentionally disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
my work for Company consistent with Company's agreement with such third
party.
4. Inventions.
a. Inventions
Retained and Licensed. Consultant represents and warrants to Company
that there are no inventions, original works of authorship, developments,
improvements, or trade secrets which were made by Consultant prior to the
commencement of her employment with the Company (collectively, "Prior Invention(s)"), which
belong solely to Consultant or belong to Consultant jointly with another, which
relate in any way to any of Company's proposed businesses, products or research
and development, and which are not assigned to Company hereunder. If,
in the course of the Employment Period, Consultant incorporates into a Company
product, process or machine a Prior Invention owned by Consultant or in which
Consultant has an interest, Company is hereby granted and shall have a
non-exclusive, royalty-free, irrevocable, perpetual, worldwide license (with the
right to sublicense) to make, have made, copy, modify, make derivative works of,
use, sell and otherwise distribute such Prior Invention as part of or in
connection with such Company product, process or machine.
b. Assignment of
Inventions. Consultant agrees that Consultant will promptly
make full written disclosure to Company, will hold in trust for the sole right
and benefit of Company, and hereby assign to Company, or its designee, all my
right, title and interest throughout the world in and to any and all inventions,
original works of authorship, developments, concepts, know-how, improvements or
trade secrets, whether or not patentable or registerable under copyright or
similar laws, which Consultant may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to practice
during the Employment Period that (i) relate at the time of conception or
development to the actual or demonstrably proposed business or research and
development activities of Company; (ii) result from or relate to any work
performed for Company during normal business hours; and (iii) are developed
through the use of Confidential Information (collectively, "Inventions"). Consultant
further acknowledges that all Inventions, which are made by Consultant (solely
or jointly with others) within the scope of and during the period of
Consultant’s employment with Company, are "works made for hire" (to the greatest
extent permitted by applicable law) and are compensated by the Base Salary,
unless regulated otherwise by law.
c. Inventions on Consultant's
Own Time. The provisions of Section 7(a) and 7(b)
above do not apply to any invention which qualifies fully under the provisions
of California Labor Code §2870, which provides as follows:
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§ 2870 - Invention
on Own time - Exemption from Agreement
(1). Any
provision in an employment agreement which provides that an Consultant shall
assign, or offer to assign, any of her or her rights in an invention to his or
her employer shall not apply to an invention that the Consultant developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either (i) relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or (ii) result from any work performed
by the Consultant for the employer.
(2). To
the extent a provision in an employment agreement purports to require an
Consultant to assign an invention otherwise excluded from being required to be
assigned under subdivision (a) of Section 2870, the provision is against the
public policy of this state and is unenforceable.
d. Patent and Copyright
Rights. Consultant agrees to assist Company, or its designee,
at Company's expense, in every reasonable way to secure Company's rights in the
Inventions and any copyrights, patents, trademarks, mask work rights, moral
rights, or other intellectual property rights relating thereto in any and all
countries, including the disclosure to Company of all pertinent information and
data with respect thereto, the execution of all applications, specifications,
oaths, assignments, recordations, and all other instruments which are necessary
in order to apply for, obtain, maintain and transfer such rights and in order to
assign and convey to Company, its successors, assigns and nominees the sole and
exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights, or other intellectual property rights
relating thereto.
5. Return of Company
Documents. Consultant agrees that, at the time of termination
of consulting with Company for any reason, Consultant will deliver to Company
(and will not keep in my possession, recreate or deliver to anyone else) any and
all Confidential Information and all other documents, materials, information or
property belonging to Company, its successors or assigns. Consultant further
agrees that any property situated on Company's premises and owned by Company,
including disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or without
notice.
6. Injunctive
Relief. Consultant expressly acknowledge that any breach or
threatened breach of any of the terms and/or conditions set forth in Sections 6 and 7 of
this Agreement will result in substantial, continuing and irreparable injury to
Company. Therefore, Consultant hereby agrees that, in addition to any
other remedy that may be available to Company, Company shall be entitled to
injunctive relief, specific performance or other equitable relief by a court of
appropriate jurisdiction in the event of any breach of threatened breach of the
terms of this Agreement.
7. Miscellaneous.
a. Governing Law. This
Agreement is deemed to be entered into and performed in Orange County,
California. Except as otherwise explicitly noted, this Agreement
shall be governed by and construed in accordance with the laws of the State of
California, without giving effect to the conflict of law rules of
California. The parties hereby submit to the exclusive jurisdiction
of the state of California in connection with any dispute arising from or
related to this Agreement, and Los Angeles County shall be the sole venue
therefore.
b. Modifications and
Amendments. This Agreement may be modified or amended only by
a written instrument executed by the parties hereto and approved in writing by a
duly authorized officer of Company, no modification or amendment shall be
effective absent such approval.
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c. Independence and
Severability. Each of the rights enumerated above shall be
independent of the others and shall be in addition to and not in lieu of any
other rights and remedies available to Company at law or in
equity. If any of the covenants contained herein or any part of any
of them is hereafter construed or adjudicated to be invalid or unenforceable,
the same shall not affect the remainder of the covenant or covenants or rights
or remedies which shall be given full effect without regard to the invalid
portions. If any of the covenants contained herein are held to be
invalid or unenforceable because of the duration of such provision or the area
or scope covered thereby, Consultant agrees that the court or arbitrator making
such determination shall have the power to reduce the duration, scope and/or
area of such provision and in its reduced form said provision shall then be
enforceable.
d. Notice. For
the purpose of this Agreement, notices and all other communications provided for
in this Agreement shall be in writing and shall be deemed to have been duly
given as of the date if delivered in person or by telecopy, on the next business
day, if sent by a nationally recognized overnight courier service, and on the
second business day if mailed by registered mail, return receipt requested,
postage prepaid, and if addressed to the Company then at its principal place of
business, or if addressed to Consultant, then her last known address on file
with the Company.
e. Waiver. The
observation or performance of any condition or obligation imposed upon
Consultant hereunder may be waived only upon the written consent of
Company. Such waiver shall be limited to the terms thereof and shall
not constitute a waiver of any other condition or obligation of Consultant under
this Agreement.
f. Assignment. This
Agreement is personal to Consultant and shall not be assigned by her. Company
may assign its rights hereunder to (a) any corporation or other legal entity
resulting from any merger, consolidation or other reorganization to which
Company is a party or (b) any corporation, partnership, association or other
legal entity or person to which Company may transfer all or substantially all of
the assets and business of Company existing at such time. All of the
terms and provisions of this Agreement shall be binding upon and shall inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
g. Headings. The
headings have been inserted for convenience only and are not to be considered
when construing the provisions of this Agreement.
h. Counterparts. This
Agreement may be executed in one or more counterparts and transmitted by
facsimile, a copy of which shall constitute an original and each of which, when
taken together, shall constitute one and the same agreement.
i. Survival of
Provisions. Notwithstanding anything to the contrary in this
Agreement, Sections 3,
4, 5, 6, and 7 of this Agreement shall survive the termination of this
Agreement for the period of time so specified or implied in such Sections,
respectively.
j. Arbitration. Any
controversy, dispute or claim of any nature whatsoever involving Company and
Consultant or Consultant's spouse or family, including without limitation any
claims arising out of, in connection with, or in relation to this Agreement or
Consultant's employment with Company, any claims of unlawful discrimination,
sexual harassment or wrongful termination, and any issues of arbitrability of
any such disputes, will be resolved by final and binding arbitration before the
American Arbitration Association in Los Angeles, California, in accordance with
its employee arbitration rules.
k. Entire
Agreement. This Agreement constitutes the entire understanding
between the parties hereto in respect of the employment of Consultant by
Company, superseding all negotiations, prior discussions, prior written, implied
and oral agreements, preliminary agreements and understandings with Company or
any of its officers, employees or agents.
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IN
WITNESS WHEREOF, this five (5) page Agreement is executed and agreed to as of
May 1, 2009.
CONSULTANT
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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/s/
Xxxxxx X. Xxxxxxx
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/s/
Xxxxxxx Xxxxx
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Xxxxxx
X. Xxxxxxx, Co-President
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Xxxxxxx
Xxxxx – Chief Operating Officer
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