CONSULTING AGREEMENT
CONSULTING AGREEMENT made and entered into as of the 1st day of June,
1998 by and between TTR Inc., a Delaware corporation (hereafter "TTR" or the
"Company") and Limekiln Ltd., a _____________ corporation ( hereafter the
"Consultant").
W I T N E S S E T H
WHEREAS, the Company is in the business developing and marketing
various software products and components;
WHEREAS, Consultant has experience and expertise in the providing
general financial and investment advice to high-tech companies, including
without limitation, locating and interesting strategic investors, considering
potential acquisition targets for the Company and locating other potential areas
of joint cooperation and development (hereinafter the "Services");
WHEREAS, the Company desires to engage the services of Consultant to
provide the Services;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings of the parties, it is hereby agreed:
1. Engagement & Duties.
1.1 The Company hereby engages Consultant and the Consultant agrees to
provide advice and services to the Company regarding the Services as determined
form time to time by the Company. Consultant shall devote such time and effort
to the consulting services hereunder as is necessary and proper for the
fulfillment of Consultant's obligations hereunder.
1.2 Consultant shall report regularly to the President of the Company
with respect to Consultant's activities hereunder.
2. Compensation For services rendered hereunder, the Company shall issue to
Consultant 50,000 shares of the Company's Common Stock, par value $0.001 (the
"Common Stock" or "Securities").
3. Term & Termination. This Agreement shall continue in full force and effect
through June 1, 1999, unless the parties mutually agree otherwise.
4. Representations of Consultant Respecting the Securities.
4.1 General Restriction on Transfer. Except for transfers otherwise
permitted by this Agreement or applicable law, Consultant agrees that it will
not transfer any of the Securities.
4.2 Not for Resale. Consultant represents that it is acquiring the
Securities for investment for its own account and not with a view to, or for
resale in connection with, the distribution or other disposition thereof.
Consultant agrees that it will not, directly or indirectly, offer, transfer,
sell, assign, pledge, hypothecate or otherwise dispose of (each a "Transfer")
any of the Securities unless such Transfer complies with the provisions of this
Agreement and (i) the Transfer is pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and the rules and
regulations in effect thereunder (the "Securities Act"), or (ii) counsel for
Consultant shall have furnished the Company with an
opinion, reasonably acceptable to the Company, that no such registration is
required because of the availability of an exemption under the Securities Act.
4.3 Certain Permitted Transfers. (i) Notwithstanding the general
prohibition on Transfers contained herein, the Company acknowledges and agrees
that any Transfer in a private transaction which does not include a public
distribution is permitted and need not require an opinion of counsel, provided,
that prior to such Transfer, the transferee shall deliver to the Company a valid
written undertaking to be bound by the terms of this Agreement.
(ii) From and after the date on which the Company (i) shall have filed
a registration statement pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
respect of the Common Stock or (ii) engaged in a primary or secondary
offering of shares of Common Stock pursuant to an effective registration
statement under the Securities Act (either of which event, a "Public
Offering"), Consultant may sell at any time any of its Securities in a Rule
144 Transaction (as hereinafter defined); provided, that, each such sale
shall be made in compliance with Section 4.4 below.
4.4 Rule 144 Sales. If any of the Securities are disposed of according
to Rule 144 ("Rule 144 Transaction") under the Securities Act or otherwise,
Consultant shall promptly notify the Company of such intended disposition and
shall deliver to the Company at or prior to the time of such disposition such
documentation as the Company may reasonably request in connection with such sale
and, in the case of a disposition pursuant to Rule 144, shall deliver to the
Company an executed copy of any notice on Form 144 required to filed with the
Securities and Exchange Commission.
2.5 Legend. Each certificate representing the Securities shall bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE OR ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE
AGREEMENT DATED AS OF June 1, 1998 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY)."
5. Proprietary Information; Non- Competition
5.1 The term "Information" means any and all confidential and
proprietary information including but not limited to any and all specifications,
formulae, prototypes, software design plans, computer programs, and any and all
records, data, methods, techniques, processes and projections, plans, marketing
information, materials, financial statements, memoranda, analyses, notes, and
other data and information (in whatever form), as well as improvements and
know-how related thereto, relating to the Company or its products. Information
shall not include information that (a) was already known to or independently
developed by the Consultant prior to its disclosure as demonstrated by
reasonable and tangible evidence satisfactory to the Company; (b) shall have
appeared in any printed publication or patent or shall have become part of the
public knowledge except as a result of breach of this Agreement by the
Consultant or similar agreements by other Company consultants or employees (c)
shall have been received by the Consultant from another person or entity having
no obligation to the Company or (d) is approved in writing by the Company for
release by the Consultant.
2
5.2 The Consultant agrees to hold in trust and confidence all
Information disclosed to it and further agrees not to exploit or disclose the
Information to any other person or entity or use the Information directly or
indirectly for any purpose other than for its work with the Company.
5.3 The Consultant agrees to disclose the Information only to persons
necessary in connection with its work with the Company and who have undertaken
the same confidentiality obligations set forth herein in favor of the Company.
The Consultant agrees to assume full responsibility for the confidentiality of
the Information disclosed to it and to prevent its unauthorized disclosure, and
shall take appropriate measures to ensure that such persons acting on his behalf
are bound by a like covenant of secrecy.
5.4 The Consultant acknowledges and agrees that the Information
furnished hereunder is and shall remain proprietary to the Company. Unless
otherwise required by statute or government rule or regulation, all copies of
the Information, shall be returned to the Company immediately upon request
without retaining copies thereof.
5.5 Consultant represents and warrants that his receipt of Information
hereunder or use thereof for the purposes of this Agreement shall not violate
any undertaking or obligation of the Consultant to any third party or entitle
any third party to access or right in the Information.
6. Ownership
6.1 'Project Materials' - shall mean any and all works of authorship
and materials developed by the Consultant, its employees, agents in relation to
Services (whether individually, collectively or jointly with the Company and on
whatever media) including, without limitation, any and all reports, studies,
data, diagrams, charts, specifications, pre contractual and contractual
documents and all drafts thereof and working papers relating thereto, but
excluding consultants ordinary correspondence.
6.2 The Project Materials and the intellectual property rights therein
or relating thereto shall be and remain the exclusive property of the Company
and shall vest in the Company at the time they are first created.
6.3 In the event and to the extent that any of the Project Materials or
the intellectual property rights therein or relating thereto are deemed for any
reason not to vest in the Company pursuant to this Section 6 then, upon request
by the Company, the Consultant shall forthwith assign or otherwise transfer the
same to the Company free of any encumbrance or compensation to the Consultant.
6.4 At the request and the expense of the Company, the Consultant shall
do all such things and sign all documents or instruments reasonably necessary in
the opinion of the Company to enable the Company to obtain, defend and enforce
its rights in the Project Materials.
6.5 Upon the request by the Company, and in any event upon expiration
or termination of this Agreement, the Consultant shall promptly deliver to the
Company all copies of the Project Materials then in Consultants custody, control
or possession.
6.6 The provisions of this section shall survive the expiration or
termination of this agreement.
3
7. Warranty
Consultant represents and warrants that on the date hereof it free to
be engaged by the Company upon the terms contained in this Agreement and that
there are no agreements or arrangements restricting full performance of
Consultant's duties hereunder.
8. Force Majeure
8.1 No liability shall result to any Party due to a delay in
performance caused by circumstances beyond the reasonable control of the Party
affected, including, but not limited to acts of God, flood, war, terrorism,
embargo, accident, and governmental laws, or request, or any ruling of a court
or tribunal;
8.2 Each Party affected by an event of force majeure shall (a) promptly
notify the other Party hereto of the expected duration thereof, and its
anticipated effect on the Party effected in terms of the performance required
hereunder; and (b) make reasonable efforts to remedy any such event of force
majeure. Performance that is delayed by any event of force majeure shall be
extended for such time as the event shall continue.
9. General Provisions
9.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and shall not be amended, modified or
varied by any oral agreement or representation or otherwise other than by a
written instrument executed by both parties or their duly authorized
representatives.
9.2 No failure, delay or forbearance by a party in exercising any power
or right hereunder shall in any way restrict or diminish such party's rights and
powers under this Agreement, or operate as a waiver of any breach or
non-performance by either party of any of the terms or conditions hereof.
9.3 If any term or provision of this Agreement shall be declared
invalid, illegal or unenforceable, then such term or provision shall be
enforceable to the extent that a court shall deem it reasonable to enforce such
term or provision and if such term or provision shall be unenforceable, such
term or provision shall be severed and all remaining terms and provisions shall
be unaffected and shall continue in full force and effect.
9.4 The terms and conditions of this Agreement supersede those of all
previous agreements and arrangements, either written or oral between the Company
and Consultant relating to the subject thereof.
9.5 Consultant acknowledges and agrees that he is an independent
contractor, is not the agent of the Company and has no authority in such
capacity to bind or commit the Company by or to any contract or otherwise.
Consultant is not, expressly or by implication, an employee of the Company for
any purpose whatsoever.
9.6 This Agreement is personal to Consultant and Consultant shall not
assign or delegate his rights or duties to a third party, whether by contract,
will or operation of law, without the Company's prior written consent.
9.7 Each notice and/or demand given by one party pursuant to this
Agreement shall be given in writing and shall be sent by registered mail to the
other party at its designated address and such notice and/or demand shall be
deemed given at the expiration of seven (7) days from the date of mailing by
registered mail or immediately if delivered by
4
hand. Delivery by facsimile and other electronic communication shall be
sufficient and be deemed to have occurred upon electronic confirmation of
receipt.
9.8 This Agreement shall be interpreted, construed and governed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TTR Inc. Limekiln Ltd.
/s/ XXXX XXXXXXX /s/___________
Xxxx Xxxxxxx
5
