Exhibit 4.5
INVESTOR RELATIONS
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement"), is made and entered as of the ___
day of October 1997 ("Effective Date") by and between Xxxx Computer
Corporation, Inc., a Delaware corporation ("Company"), and JDK & Associates,
Inc., a California corporation ("Consultant").
RECITALS
Company desires to have Consultant perform consulting services for it and
Consultant desires, subject to the terms and conditions of this Agreement, to
perform consulting services for Company.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKINGS
HEREIN CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS
FOLLOWS:
1. ENGAGEMENT AND DESCRIPTION OF SERVICES.
1.1 Company hereby retain Consultant as a consultant, and Consultant
hereby agrees to act as such consultant and to furnish such consulting
services to Company as requested from time to time by Company. Such
consulting services shall include, but not be limited to, consultation
regarding any proposals for new business ventures, general consultation and
advice concerning any debt or equipment financing, advice regarding any sale
of assets, mergers, acquisitions, consolidations or joint ventures, advice
with respect to possible strategic alliances and other growth opportunities,
and offering, if required, recommendations with respect to the foregoing.
1.2 Consultant will, when appropriate, arrange meetings between
representatives of Company and individuals and financial institutions in the
investment community, such as security analysts, portfolio managers and
market makers. Consultant shall also develop, implement and maintain an
ongoing market support system that increases broker awareness of Company's
activities and stimulates investor interest in Company. The stock market
support systems shall include, but not be limited to, Consultant's initial
shareholder communication system, investor generation system and media
relations system, which have been defined and developed by Consultant. It is
understood that Consultant's ability to relate information regarding
Company's activities is dependent upon the information provided by Company to
Consultant.
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1.3 Consultant's role shall be to advise and review only, it being
understood that the management of Company will have final authority with
respect to all managerial decisions. It is further understood and
acknowledged by the parties hereto that the value of Consultant's advice is
not measurable in any qualitative manner and Consultant shall be obligated to
render advice upon the request of Company in good faith, but shall not be
obligated to spend any specific amount of time in doing so.
2. TERM.
The term of this Agreement ("Term") shall begin as of the Effective Date
and shall terminate twelve (12) months thereafter, unless terminated or
extended in accordance with provisions of this Agreement.
3. COMPENSATION.
As compensation for all services rendered by Consultant pursuant to this
Agreement, Company shall compensate as follows:
3.1 Company shall pay to Consultant the sum of Five Thousand
Dollars ($5,000) per month during term.
3.2 Concurrently with the execution of this Agreement the Company
shall issue to Consultant a warrant ("Warrant") entitling Consultant to
purchase up to One Hundred Thousand (100,000) shares ("Warrant Shares") of
Company's common stock at an exercise price of $6.50 per share. The warrants
shall vest 1/24th at the end of each month over the first three (3) months of
Agreement; remaining warrants shall vest 1/9th at the end of each month
during months four (4) through twelve (12). One Hundred Thousand (100,000)
warrant shares with an exercise price of $6.50 per share shall vest over
twelve (12) month period from "Effective Date", provided that vesting shall
cease upon the termination of this Agreement. If Consultant terminates this
Agreement within six (6) months of Effective Date all Warrant Shares
previously vested are to be returned. All Warrant Shares, to the extent
vested, shall be exercisable through November 1, 2002.
Company shall file a registration statement to register the Warrant Shares
with the Securities and Exchange Commission ("SEC") prior to the expiration
of one year from the Effective Date. If the Warrant Shares are not
registered and the registration statement declared effective by the SEC
within ninety (90) days after the expiration of the initial 12 month term
("Required Effective Date"), Company will register the Warrant Shares on a
Form S-8 Registration Statement ("S-8 Registration Statement) within 10
business days of the Required Effective Date. If Company fails to have the
S-8 Registration Statement registering the Warrant Shares declared effective
by the SEC within the time period set forth herein, the exercise price of the
Warrants will be reduced by One Dollar ($1.00) for each thirty (30) days
after said date until the S-8 Registration Statement is effective.
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Consultant shall have "piggyback" registration rights with respect to the
Warrant Shares. Said Warrant Shares if registered shall be locked up for a
period of twelve (12) months from the Effective Date.
3.3 Company shall reimburse Consultant for agreed upon budgetary
expenses incurred on a monthly basis which basis which will be due upon
receipt of invoice. Expenses to include, but not limited to, the following:
Press releases, overnight mail, conference calls, marketing pieces, special
events, travel and entertainment, media placement, etc.
3.4 All expenses of registration and qualification incurred in
connection with the registration of the Warrant Shares shall be borne by
Company, except that the holder of the Warrant Shares shall bear the fees and
expenses of its own counsel, if any.
4. INDEPENDENT CONTRACTOR.
It is expressly agreed that Consultant is acting as an independent
contractor performing its services hereunder, and this Agreement is not
intended to, nor does it create, an employer-employee relationship nor shall
it be construed as creating any joint venture or partnership between Company
and Consultant. Consultant shall be responsible for all applicable federal,
state and other taxes on behalf of Consultant, including without limitation
social security, federal, state and other local income taxes. Since
Consultant is acting solely as an independent contractor under this
Agreement, Consultant shall not be entitled to insurance or other benefits
normally provided by Company to its employees.
5. ASSIGNMENT.
This Agreement is being entered into in reliance upon and in consideration
of the skill and qualifications of Consultant. Consultant shall not
voluntarily or by operation of law assign or otherwise transfer the
obligations incurred on its part pursuant to the terms of this Agreement
without the prior written consent of Company. Any attempt at assignment or
transfer by Consultant of its obligations hereunder, without such consent,
shall be null and void.
6. NON-COMPETITION.
Consultant agrees that during the Term it shall not, directly or
indirectly (whether for compensation or otherwise), alone or as an agent,
principal, partner, officer, employee, trustee, director, shareholder,
consultant or in any other capacity own, manage, operate, join, control, or
participate in the ownership, management, operation or control of, or furnish
any capital to, or be connected in any manner with, or provide any services as
a consultant for any business which has any activities or products directly
competitive with the activities and products of Company. Subject to the
foregoing, Company hereby acknowledges that Consultant is in the business of
providing consulting advice of the nature contemplated by this Agreement to
others and nothing herein contained shall be
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construed to limit or restrict Consultant in conducting such business with
respect to rendering such advice to others.
7. CONFIDENTIALITY.
Consultant recognizes that during the course of Consultant's activities on
behalf of Company, it will accumulate certain proprietary and confidential
information and trade secrets used in Company's business and will have
divulged to it certain confidential and proprietary information and trade
secrets about the business, operations and prospects of Company, which
constitute valuable business assets of Company. Consultant hereby
acknowledges and agrees that such information ("Proprietary Information") is
confidential and proprietary and constitutes trade secrets and that the
Proprietary Information belongs to Company and not to Consultant. Consultant
agrees, to the extent not prohibited by law, that it shall not, at any time
subsequent to the execution of this Agreement, whether during or after the
Term, disclose, divulge or make known, directly or indirectly, to any person,
or otherwise use or exploit in any manner any Proprietary Information
obtained by Consultant under this Agreement, except in connection with and to
the extent required by its performance of its duties hereunder for Company.
Upon termination of this Agreement Consultant shall deliver to Company all
tangible displays and repositories of Proprietary Information.
8. TERMINATION.
This Agreement may be terminated on the occurrence of any one of the
following events:
8.1 The expiration of the Term hereof;
8.2 The mutual agreement of the parties;
8.3 By either party, with or without cause, on notice given to the
Party at least thirty (30) days prior to the effective date of termination.
9. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF COMPANY.
The obligations of Consultant described in this Agreement consist solely
of the furnishing of information and advice to Company. In no event shall
Consultant be required by this Agreement to act as the agent of Company or
otherwise to represent or make decisions for Company. All final decisions
with respect to acts of Company or its affiliates, whether or not made
pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of the Company or such affiliates and Consultant
shall under no circumstances be liable for any expenses incurred or loss
suffered by Company as a consequence of such decisions.
10. GENERAL PROVISIONS.
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10.1 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of Delaware. Each
of the Parties hereto consents to such jurisdiction for the enforcement of
this Agreement and matters pertaining to the transaction and activities
contemplated hereby.
10.2 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, first class mail, or
telecopied, addressed as follows:
PARTY ADDRESS
----- -------
Company Xxxx Computer Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, President
Telecopier No.: 000-000-0000
with a copy, which shall not constitute notice, to:
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Telecopier No.:
---------------
Consultant JDK & Associates, Inc.
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopier No.: 000-000-0000
with a copy, which shall not constitute notice, to:
Xxxxx X. Xxxxx, Esq.
XxXxxxx & Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Telecopier No: 000-000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; five (5) business days after
deposit in any United States Post Office in the continental United States,
postage prepaid, if mailed; when answered back, if telexed; and when receipt
is acknowledged or confirmed, if telecopied.
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10.3 ATTORNEYS FEES. In the event a dispute arises with respect to
this Agreement, the party prevailing in such dispute shall be entitled to
recover all expenses, including, without limitation, reasonable attorney's
fees and expenses incurred in ascertaining such party's rights, in preparing
to enforce or in enforcing such party's rights under this Agreement, whether
or not it was necessary for such party to institute suit.
10.4 COMPLETE AGREEMENT. This Agreement supersedes any and all of the
other agreements, either oral or in writing, between the Parties with respect
to the subject matter hereof and contains all of the covenants and agreements
between the parties with respect to such subject matter in any manner
whatsoever. Each Party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any Party, or anyone herein, and that no other agreement,
statement or promise not contained in this Agreement shall be valid or
binding. This Agreement may be changed or amended only by an amendment in
writing signed by all of the Parties or their respective
successors-in-interest.
10.5 BINDING. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assigns and personal representatives
of the respective Parties, except that this Agreement may not be assigned by
Consultant without the prior written consent of Company.
10.6 UNENFORCEABLE TERMS. Any provision hereof prohibited by law or
unenforceable under the law of any jurisdiction in which such provision is
applicable shall as to such jurisdiction only be ineffective without
affecting any other provision of this Agreement. To the full extent, however,
that such applicable law may be waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms, the Parties hereto hereby waive such applicable law knowingly and
understanding the effect of such waiver.
10.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts and when so executed shall constitute one agreement
binding on all the Parties, notwithstanding that all the Parties are not
signatory to the original and same counterpart.
10.8 FURTHER ASSURANCE. From time to time each Party will execute
and deliver such further instruments and will take such other action as any
other Party may reasonably request in order to discharge and perform their
obligations and agreements hereunder and to give effect to the intentions
expressed in this Agreement.
10.9 MISCELLANEOUS PROVISIONS. The various headings and numbers
herein and the grouping of provisions of this Agreement into separate
articles and paragraphs are for the purpose of convenience only and shall not
be considered a party hereof. The language in all parts of this agreement
shall in all cases by construed in accordance with its fair meaning as if
prepared by all Parties to the Agreement and not strictly for or against any
of the Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
"COMPANY"
XXXX COMPUTER CORPORATION
A Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Its:
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"CONSULTANT"
JDK & ASSOCIATES, INC.
A California corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
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