CONSULTING AGREEMENT
CONSULTING
AGREEMENT
THIS
CONSULTING AGREEMENT dated as of January 29, 2007 (the “Agreement”), is entered
into by and between AskMeNow, Inc. (the “Company”), a Delaware corporation and
Xxxxxx Xxxxxxxxx (the “Consultant”).
RECITALS
WHEREAS,
the Consultant has provided services to the Company during the past year;
WHEREAS,
the Company wishes to retain the services of the Consultant and the Consultant
desires to continue to render services to the Company; and
WHEREAS,
the Company and the Consultant deem it to be in their respective best interests
to enter into an agreement providing for the Company’s retainer of the
Consultant on the terms and conditions set forth below.
NOW,
THEREFORE, in
consideration of the foregoing and the mutual covenants, representations,
agreements, and promises set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
AGREEMENT
1.
Consulting.
1.1 Term.
The
Company agrees to employ the Consultant and the Consultant agrees to accept
such
consulting, for a period of one year commencing as of the date of this Agreement
or for such longer term as the Company and the Consultant may agree in writing,
but subject to the termination provisions of Section 3 hereof (the
“Term”).
1.2 Duties.
During
the Term, the Consultant shall perform the equivalent services as would be
performed by a chief financial officer and such other duties and functions
as
are reasonably assigned to him by the Board of Directors of the Company (the
“Board”) and/or the Chief Executive Officer of the Company (the “CEO”) that are
consistent with the Consultant’s title, position and level of time commitment
that he has agreed to devote to the Company. The Consultant shall adhere in
all
material respects to all of the Company’s policies and procedures applicable to
someone holding his position, except to the extent such policies or procedures
may conflict with the terms of this Agreement, in which case the provisions
hereof shall control. Notwithstanding the foregoing, upon the completion of
any
subsequent financing by the Company for at least five million dollars, the
Company has been authorized by the Board to enter into an employment agreement
with the Consultant to become Chief Financial Officer and Executive Vice
President of the Company on substantially similar terms to this Agreement.
1.3 Time
Devoted to Consulting.
Consultant agrees to devote such amount of time per month to his duties as
shall
be mutually agreed by him and the Company from time to time during the Term
hereof. In determining the amount of time that Consultant shall devote to his
duties hereunder, the parties shall take into account, among other things,
the
time that the Consultant is required to devote to his other professional
commitments and endeavors. At all times that he is working on behalf of the
Company hereunder, the Consultant agrees to use his good faith efforts to
promote the success of the Company’s business and will cooperate with all
reasonable requests of the Board in order to advance the best interests of
the
Company.
1.4 Location
of Consulting.
Consultant’s principal place of Consulting shall be at the Consultant’s personal
residence at 0000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000 or at another location
that may be mutually agreed upon by the Consultant and the Company.
2.
Compensation
and Related Matters.
2.1 Consulting
Fee.
As
compensation for services rendered hereunder, the Company shall pay the
Consultant an annual consulting fee of $175,000 (the “Annual Consulting Fee”),
which amount shall be paid monthly in 12 equal installments of $14,583.33
beginning on February 1, 2007.
2.2 Additional
Compensation.
As
additional consideration for the execution of this Agreement, the Consultant
shall receive a one-time grant of non-qualified stock options for 1,000,000
shares of common stock of the Company (“Common Stock”) at an exercise price
equal to $0.55 (the fair market value on the date of grant) per share (the
“Options”). The Options shall be exercisable either for cash or on a cashless
basis for a period of 10 years commencing as of the date hereof and shall be
issued outside of any of the Company’s stock option plans (i.e.,
the
2006 Employee Stock Incentive Plan and the 2005 Management and Director Equity
Incentive and Compensation Plan) and shall be governed in accordance with the
terms of a non-qualified stock option agreement to be entered into between
the
Consultant and the Company simultaneously with the execution of this Agreement.
Sixty (60%) percent of the Options, exercisable for 600,000 shares of Common
Stock, shall vest immediately upon execution of this Agreement. The remaining
forty (40%) percent of the Options, exercisable for 400,000 shares of Common
Stock, shall vest at a rate of 25% every 90 days ending on January 29, 2008.
Once vested, the Options will be exercisable by the Consultant in whole or
in
part at any time on and after the date hereof and through their expiration
date. All Options that have not yet vested shall not be revocable or
cancelable in connection with the termination of this Agreement by any party
for
any reason except if the Consultant is terminated for Cause (as defined in
Section 3.1(c) below) or if the Consultant terminates his employment without
Good Reason (as defined in Section 3.1(d) below) prior to the Term of this
Agreement. In addition, the Company hereby grants to the Consultant “piggyback”
registration rights with respect to all shares of Common Stock issuable upon
exercise of the Options, such that the Consultant shall have the right to
require the Company to include such shares in its next subsequent registration
statement on Form S-8 under the Securities Act of 1933, as amended, which the
Company files subject, however, to customary exceptions, indemnification
provisions and other terms and conditions generally applicable to other holders
of “piggyback” rights with respect to the Company’s Common Stock. The Company
agrees to pay all costs and expenses associated with registering the
Consultant’s shares.
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2.3 Expense
Reimbursement.
The
Consultant shall be entitled to reimbursement of reasonable and necessary
business expenses incurred by him in the course of providing services to the
Company, subject to appropriate documentation and in accordance with the budgets
and guidelines established by the Company from time to time. Any travel required
to be taken by the Consultant hereunder shall be in economy class.
2.4 Indemnification
of Consultant.
The
Consultant shall be entitled to be indemnified by the Company, to the fullest
extent permitted by applicable law and the organizational documents of the
Company, against any losses, damages, liabilities, claims, actions, judgments,
costs and expenses (including without limitation, attorneys’ fees and expenses)
that may be incurred by him in the course of, or in connection with, the
performance of his duties hereunder.
2.5 Relationship
Between Parties.
The
Consultant is retained by the Company only for the purposes and to the extent
set forth in this Agreement, and his relation to the Company shall, during
the
period or periods of his rendering services hereunder, be that of an independent
contractor. Thus, the Consultant shall be at liberty to dispose of such portion
of his time, energy, and skill during regular business hours that he is not
obligated to devote to the Company pursuant to this Agreement, in such manner
as
he sees fit, subject to the terms of any restrictive covenant which binds the
Consultant. The Consultant shall not be considered under the provision of this
Agreement or otherwise as having an employee status or as being entitled to
participate in any plans, arrangements, or distributions by the Company
pertaining to or in connection with any benefits provided or offered to the
Company’s regular employees, including but not necessarily limited to, any such
plan, arrangement or distribution related to medical, health, dental,
disability, life insurance, pension, stock bonus, profit sharing, or similar
benefits.
3.
Termination
of Consulting.
3.1 Termination.
The
Consultant’s consulting hereunder may be terminated prior to the end of the Term
of this Agreement under the following circumstances:
| (a) |
Death.
The Consultant’s consulting hereunder shall terminate upon his
death.
|
| (b) |
Disability.
If, as a result of the incapacity of the Consultant due to physical
or
mental illness, the Consultant shall have been wholly incapable of
performing his duties with the Company for a continuous period of
not less
than four (4) months during any twelve (12) month period, his consulting
may be terminated by the Company for “Disability” after delivering a
written notice of termination (“Notice of Termination”) to the Consultant
with respect thereto.
|
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| (c) |
Cause.
Termination by the Company of the consulting of the Consultant for
“Cause”
shall mean termination based upon the Consultant’s (i) willful breach or
willful and gross neglect of his duties and responsibilities, (ii)
criminal conviction of a felony or a crime of moral turpitude or
a plea of
nolo contendere to either of the foregoing, occurring on or after
the
execution of this Agreement, (iii) material breach of this Agreement
(iv)
acts of fraud, dishonesty, misappropriation or embezzlement, (v)
violation
of any material Legal Requirement (as defined in Section 7.2 below),
(vi)
willful breach of his duty of loyalty or fiduciary duties, or (vii)
willful failure to comply with the Company’s reasonable orders or
directives or the Company’s reasonable rules, regulations, policies,
procedures or practices; provided,
however,
that in the case of any act or failure to act described in sub-sections
(i), (iii), (v), (vi), or (vii) above, such act or failure to act
shall
not constitute Cause if, within ten (10) days after Notice of Termination
(containing a description of the behavior allegedly constituting
the
“Cause”) is given to the Consultant by the Company, the Consultant has
corrected such act or failure to act, to the reasonable satisfaction
of
the Board.
|
| (d) |
Good
Reason.
The Consultant may terminate his consulting during the Term of this
Agreement for “Good Reason.” Good Reason shall mean the Company’s material
breach of this Agreement, a material reduction in the Consultant’s duties
or authority or a requirement that the Consultant relocate to an
area
outside of a radius of 50 miles of Winter Park, Florida, which breach
shall not be cured by the Company within ten (10) days after Notice
of
Termination is given by the
Consultant.
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3.2 Date
of Termination.
“Date
of Termination” shall mean (a) the expiration of the Term, (b) if the
Consultant’s consulting is terminated due to his death, the date of his death,
(c) if the Consultant’s consulting is terminated due to Consultant’s Disability,
ten (10) days after Notice of Termination is given to the Consultant, and (d)
if
the Consultant’s consulting is otherwise terminated by the Company or by
Consultant, the date upon which the for Cause or Good Reason event occurs or
such other date set forth in the Notice of Termination. Nothing in this Section
shall be deemed to diminish the Company’s right to cause the Consultant to cease
performing his duties and responsibilities as a consultant of the Company at
any
time (“Termination Without Cause”), or to limit either party’s right to give a
Notice of Termination at any time during the Term of this
Agreement.
-4-
3.3 Notice
of Termination.
Any
purported termination of the Consultant’s consulting by the Company or by the
Consultant shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 8.4 of this Agreement. For purposes
of
this Agreement, a “Notice of Termination” shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied
upon,
and shall set forth in reasonable detail the facts and circumstances claimed
to
provide a basis for termination of the Consultant’s consulting under the
provision so indicated.
4.
Compensation
Upon Termination.
4.1 Disability.
In the
event the Consultant’s consulting is terminated by reason of disability, the
Consultant shall be compensated as follows: (a) all earned, but unpaid amounts
of the Annual Consulting Fee to which the Consultant was entitled as of the
Date
of Termination through and including the last date of the month following the
Consultant’s disability, and (b) all unreimbursed business expenses incurred
through the Date of Termination, shall be paid in accordance with the terms
of
this Agreement to the Consultant. Thereafter, the Company shall have no further
obligations to the Consultant under this Agreement.
4.2 Death.
In the
event the Consultant’s consulting is terminated by reason of his death, the
Consultant’s beneficiary or estate shall be compensated as follows: (a) all
earned, but unpaid amounts of the Annual Consulting Fee, to which the Consultant
was entitled as of the Date of Termination through and including the last date
of the month following the Consultant’s death, and (b) all unreimbursed business
expenses incurred through the Date of Termination, shall be paid in accordance
with the terms of this Agreement to the Consultant’s beneficiary, or, if no
beneficiary has been designated by the Consultant in a written notice prior
to
his death, to the Consultant’s estate. Thereafter, the Company shall have no
further obligations to the Consultant’s beneficiary or estate under this
Agreement.
4.3 Cause;
Termination by Consultant Without Good Reason.
In the
event the Consultant’s consulting is terminated by the Company for Cause or by
the Consultant without Good Reason: (a) the Company shall pay the Consultant
(i)
all earned, but unpaid amounts of his Annual Consulting Fee, if any, to which
the Consultant was entitled as of the Date of Termination, and (ii) all
unreimbursed business expenses incurred through the Date of Termination, and
(b)
all unvested options granted under Section 2.2 above shall be terminated. The
Company shall have no further obligations to the Consultant under this
Agreement.
4.4 Without
Cause; Termination by Consultant for Good Reason.
In the
event the Consultant’s consulting is terminated by the Company without Cause or
by the Consultant for Good Reason, the Company shall pay the Consultant (a)
all
earned, but unpaid amounts of his Annual Consulting Fee, if any, to which the
Consultant was entitled as of the Date of Termination, and (b) all unreimbursed
business expenses incurred through the Date of Termination. In addition, the
Company shall pay to the Consultant his Annual Consulting Fee for a 90 day
period from the date of termination (without regard to the early termination
thereof) in the same installments as theretofore paid and the Company shall
have
no further obligation to the Consultant under this Agreement. The amounts
payable by the Company hereunder shall not be offset or reduced by any other
income, gains, insurance payment or any other amount received by the Consultant
from other consulting or any other source after the Date of Termination, it
being understood that the Consultant has no duty to mitigate any damages or
costs resulting from the termination of his consulting.
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5.
Restrictive
Covenants.
5.1 Confidential
Information.
The
Consultant acknowledges that during his consulting with the Company, he shall
be
exposed to or given access to Confidential Information (as defined below in
Section 7.1). The Consultant agrees, without limitation in time or until such
information shall become public other than by the Consultant’s unauthorized
disclosure (except as necessary or appropriate in connection with the
performance by the Consultant of his duties on behalf of the Company) or as
required by any Legal Requirement (as defined below in Section 7.2) or legal
process, to maintain the confidentiality of the Confidential Information and
refrain from divulging, disclosing, or otherwise using in any respect the
Confidential Information to the detriment of the Company and any of its
subsidiaries, affiliates, successors or assigns, or for any other purpose or
no
purpose. Notwithstanding the foregoing, there shall be no prohibition against
the Consultant using the general skill and knowledge which he has acquired
as a
consultant of the Company.
5.2 Ownership
of Intellectual Property.
The
Consultant acknowledges and agrees that all work performed, and all ideas,
concepts, materials, products, software, documentation, designs, architectures,
specifications, flow charts, test data, programmer’s notes, deliverables,
improvements, discoveries, methods, processes, or inventions, trade secrets
or
other subject matter that (a) relate to the Company’s competitive business
activities or actual or demonstrably anticipated development or contemplated
expansion thereof in which the Consultant was actively involved, (b) result
from
any work performed by the Consultant, alone or with others, for the Company,
(c)
are developed on the Company’s time or using the Company’s equipment, supplies,
facilities or Confidential Information, (d) are based upon the Confidential
Information of the Company, whether in written, oral, electronic, photographic,
optical or any other form (collectively, “Materials”) are the property of the
Company and its successors or assigns, and all rights, title and interest
therein shall vest in the Company and its successors or assigns, and all
Materials shall be deemed to be works made for hire and made in the course
of
his consulting or other relationship with the Company. To the extent that title
to any Materials has not or may not, by operation of law, vest in the Company
and its successors or assigns, or such Materials may not be considered works
made for hire, the Consultant hereby irrevocably assigns all rights, title
and
interest therein to the Company and its successors or assigns. All Materials
belong exclusively to the Company and its successors or assigns, with the
Company and its successors or assigns having the right to obtain and to hold
in
its or their own name, copyrights, patents, trademarks, applications,
registrations or such other protection as may be appropriate to the subject
matter, and any extensions and renewals thereof. The Consultant hereby grants
to
the Company and its successors or assigns an irrevocable power of attorney
to
perform any and all acts and execute any and all documents and instruments
on
his behalf as the Company and its successors or assigns may deem appropriate
in
order to perfect or enforce the rights defined in this Section. The Consultant
further agrees to give the Company and its successors or assigns, or any person
designated by the Company and its successors or assigns, at the Company’s or its
successors’ or assigns’ expense, any assistance reasonably required to perfect
or enforce the rights defined in this Section. The Consultant shall communicate
and deliver to the Company and its successors or assigns promptly and fully
all
Materials conceived or developed by him (alone or jointly with others) during
the period of his consulting or other relationship with the Company and its
successors and assigns.
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5.3 Covenant
Not to Compete.
| (a) |
For
a period commencing on the date hereof and continuing until three
(3)
years after the Date of Termination, the Consultant shall not in
any city,
town or county in any state of the United States where the Company
or any
of its subsidiaries, affiliates, successors or assigns engages in
the
Business (defined below) as of the date of such termination, directly
or
indirectly, do any of the
following:
|
(i) engage
in
any business which is competitive with the business of the Company, currently
in
existence or as contemplated today (the “Business”), for the Consultant’s own
account;
(ii)enter
the
employ of, or render any services to or for, any entity that is engaged in
the
Business other than a separate division of such entity that is not engaged
in
the Business; or
(iii)become
interested in any entity engaged in the Business in any capacity, including
as
an individual, partner, member, shareholder, officer, director, principal,
employee, agent, investor, trustee or consultant.
Notwithstanding
the foregoing, the Consultant may own, directly or indirectly, solely as a
passive investment, securities of any entity engaged in the Business if the
Consultant is not a controlling person of, or a member of a group which
controls, such entity and does not, directly or indirectly, beneficially own
5.0% or more of any class of securities of such entity.
| (b) |
Noninterference.
For a period commencing on the date hereof and continuing until one
(1)
year after the Date of Termination , the Consultant shall not, directly
or
indirectly, do any of the following: solicit, induce, or attempt
to
solicit or induce any person known by the Consultant to be a partner,
principal, member, employee or consultant of the Company or its
subsidiaries, affiliates, successors or assigns, to terminate his
or her
relationship with the Company or any of its subsidiaries, affiliates,
successors or assigns.
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| (c) |
Nonsolicitation.
For a period commencing on the date hereof and continuing until one
(1)
year after the Date of Termination, the Consultant shall not directly
or
indirectly, solicit, induce, or attempt to solicit or induce any
person or
entity then known to be a customer, client, vendor, supplier, distributor
or consultant of the Company or any of its subsidiaries, affiliates,
successors or assigns to terminate his, her or its relationship with
the
Company, or any of its subsidiaries, affiliates, successors or assigns
for
any purpose.
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5.4 Return
of Documents and Other Property.
At the
end of the Term or upon any earlier Date of Termination, the Consultant shall
return to the Company all of its property, equipment, documents, records, lists,
files and any and all other Company materials (including, without limitation,
computerized or electronic information) that is in the Consultant’s possession
as of the Date of Termination (the “Company Property”). The Company Property
shall be delivered to the Company at its office in Irvine, California (or at
such other location mutually agreed upon by the Company and the Consultant),
at
the Company’s expense, within five (5) business days after the Date of
Termination. Unless otherwise agreed by the Company in writing, the Consultant
shall not retain any of the Company Property.
5.5 Reasonableness
of Restrictive Covenants.
The
Consultant agrees that, due to the uniqueness of his skills and abilities and
the uniqueness of the Confidential Information that will be disclosed to him
in
the course of his consulting with the Company, the covenants set forth herein
are reasonable and necessary for the protection of the Company. Nevertheless,
if
it shall be determined that such covenants are unenforceable in that they are
too broad as to their scope or geographical coverage, then the parties hereby
confer upon any appropriate court the power to limit such scope or geographical
coverage such that they will be enforceable.
5.6 Irreparable
Injury.
The
Consultant acknowledges that the covenants contained in this Section 5 and
the
Consultant’s services under this Agreement are of a special and unique
character, which gives them a special value to the Company, the loss of which
may not be reasonably or adequately compensated for by damages in an action
at
law, and that a material breach or threatened breach by him of any of the
covenants contained in this Agreement will cause the Company irreparable injury.
The Consultant therefore agrees that the Company shall be entitled, in addition
to any other right or remedy, to seek a temporary restraining order, preliminary
and permanent injunctions and any other appropriate equitable remedy that
prevents the Consultant from breaching this Agreement, without the necessity
of
proving the inadequacy of monetary damages or the posting of any bond or
security, enjoining or restraining the Consultant from any such violation or
threatened violation.
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6.
Arbitration.
6.1 Except
as
otherwise set forth in Section 5.6, any dispute between the parties arising
out
of this Agreement, including but not limited to any dispute regarding any aspect
of this Agreement, its formation, validity, interpretation, effect, performance
or breach, or the Consultant’s consulting (“Arbitrable Dispute”) shall be
submitted to arbitration in the State of California,
before an experienced consulting arbitrator who is either licensed to practice
law in California, or is a retired judge. The parties agree to make a good
faith
effort to select a mutually agreeable arbitrator. However, if the parties are
unable to reach agreement on an arbitrator, one will be selected pursuant to
the
Employment Dispute Resolution Rules of the American Arbitration Association
or
any successor rules thereto. The arbitration shall be conducted in accordance
with the Employment Dispute Resolution Rules or any successor rules. The
arbitrator in any Arbitrable Dispute shall not have authority to modify or
change this Agreement in any respect. The prevailing party in any such
arbitration shall be awarded his or its costs, expenses, and reasonable
attorneys’ fees incurred in connection with the arbitration. The Consultant and
the Company shall each be responsible for payment of one-half the amount of
the
arbitrator’s fee(s). The arbitrator’s decision and/or award will be fully
enforceable and subject to an entry of judgment by any court of competent
jurisdiction.
7.
Definitions.
For
purposes of this Agreement, the following terms have the meanings specified or
referred to in this Section 7:
7.1 “Confidential
Information” shall mean (i) any and all Trade Secrets (defined below), product
specifications, compositions, designs, molds, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned research
and
development, current and planned manufacturing and distribution methods and
processes, current and anticipated customer requirements, price lists, market
studies, business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures and architectures (and related processes, formulae, compositions,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), of the Company and any other information,
however documented, of the Company that is a Trade Secret; (ii) any and all
information concerning the business and affairs of the Company (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials),
however documented; and (iii) any and all notes, analysis, compilations,
studies, summaries, and other material prepared by or for the Company containing
or based, in whole or in part, on any information included in the foregoing.
“Confidential Information” does not include (a) any information generally known
or available to the public or industry participants other than through the
Consultant’s disclosure thereof in breach of the terms of this Agreement, (b)
information independently developed by the Consultant after the date hereof
without reference to the Confidential Information previously disclosed by the
Company to the Consultant, (c) information disclosed to the Consultant on a
non-confidential basis from a source other than the Company, and (d) information
that is required to be disclosed by any person or entity pursuant to any Legal
Requirement or legal process.
7.2 “Legal
Requirement” shall mean any applicable federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute,
or
treaty.
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7.3 “Trade
Secret” shall mean all technology, know-how, proprietary processes and formulas,
customer lists, software, technical information, data, process technology,
plans, drawings, and blue prints owned, used, or licensed by the Company as
licensee or licensor.
8.
Miscellaneous.
8.1 Successors
and Assigns; Binding Agreement.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns; provided,
that (a)
the duties of the Consultant hereunder are personal to the Consultant and may
not be delegated or assigned by him, and (b) the Company may not assign its
rights or obligations hereunder without the prior written consent of the
Consultant.
8.2 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California, without regard to any conflicts of laws principles thereof
or of any other jurisdiction.
8.3 Waivers.
The
waiver by either party hereto of any right hereunder or any failure to perform
or breach by the other party hereto shall not be deemed a waiver of any other
right hereunder or of any other failure or breach by the other party hereto,
whether of the same or a similar nature or otherwise. No waiver shall be deemed
to have occurred unless set forth in a writing executed by or on behalf of
the
waiving party. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to
the
specific term or condition waived and shall not constitute a waiver of such
term
or condition for the future or as to any act other than that specifically
waived.
8.4 Notices.
All
notices and communications that are required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when delivered
personally or by overnight courier, as follows:
If
to the
Company, to:
AskMeNow,
Inc.
00
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxx, CEO
and
Xxxxxxxx
Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
-10-
If
to the
Consultant, to:
Xxxxxx
Xxxxxxxxx
0000
Xxxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
or
to
such other address as may be specified in a written notice personally delivered,
faxed or mailed by overnight courier or registered or certified mail, postage
prepaid, return receipt requested, given by one party to the other party
hereunder.
8.5 Severability.
If for
any reason any term or provision of this Agreement is held to be invalid or
unenforceable, all other valid terms and provisions hereof shall remain in
full
force and effect, and all of the terms and provisions of this Agreement shall
be
deemed to be severable in nature. If for any reason any term or provision
containing a restriction set forth herein is held to cover an area or to be
for
a length of time which is unreasonable, or in any other way is construed to
be
too broad or to any extent invalid, such term or provision shall not be
determined to be null, void and of no effect, but to the extent the same is
or
would be valid or enforceable under applicable law, any court of competent
jurisdiction shall construe and interpret or reform this Agreement to provide
for a restriction having the maximum enforceable area, time period and other
provisions (not greater than those contained herein) as shall be valid and
enforceable under applicable law.
8.6 Amendment;
Cancellation.
This
Agreement may not be amended or cancelled except by mutual agreement of the
parties in writing (without the consent of any other person) and no person,
other than the Company, its successors and assigns and the Consultant, and
his
executors and heirs, shall have any rights under or interests in this Agreement
or the subject matter hereof.
8.7 Descriptive
Headings.
The
parties hereto agree that the headings of the several paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect
the
meaning or construction of any provision of this Agreement.
8.8 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto, and
supersedes all prior oral and/or written understandings and/or agreements
between the parties hereto relating to the subject matter hereof.
8.9 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which taken together shall constitute one and
the
same Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and
year first above written.
CONSULTANT:
/s/
Xxxxxx Xxxxxxxxx
Xxxxxx
Xxxxxxxxx
ASKMENOW,
INC.:
By:
/s/ Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Chief Executive Officer
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