CONSULTING AGREEMENT
EXHIBIT
10.16
This
Consulting Agreement (“Agreement”), is entered into as of July 10th, 2006 (the
“Effective Date”) by and between PocketFinder, LLC., and Xxxxx Xxxxxxxx
(“Consultant”).
WITNESSETH:
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 the design and implementation of PocketFinder. 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 ten (10) years from the Effective
Date
(the “Consultancy Term”).
b. Duties
and Responsibilities. During the Term, Consultant agrees to
devote his working time and attention to the project and tasks faithfully
and
efficiently perform all reasonable responsibilities and duties to the best
of
his skill 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 this
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
Salary. During the Consulting Term, in full consideration for the
services to be rendered by Consultant, Consultant shall compensation for
worked
performed on an hourly basis set at $125.00 per hour. The Consultant
will invoice the Company on a monthly basis.
b. Stock
Incentive Plan/Options for Performance. Consultant shall
participate in the Stock Incentive Plan of the Company based on Performance
as
follows:
|
NUMBER
|
VESTING
|
|
50,000
class D shares
|
Issued
to Xxxxx Xxxxxxxx on completion of the IVR
|
|
100,000
class D shares
|
First
PF location based system tested and running at the main data
center.
|
|
25,000
class D shares
(Maximum
of 100,000 class D shares)
|
Upon
each additional PF location system tested and running at main
data centers
domestic and internationally.
|
c. Resignation. Consultant
may resign his current position with Company and thereby terminate his
agreement, by giving thirty (30) days notice in writing. Upon
resignation, Consultant terminates any and all participation in the Stock
Incentive Plan/Options 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 to pay any and all
outstanding invoices.
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.
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
person.
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 his 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 registrable 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:
§
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 his 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 employees 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.
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 his 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 his. 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.
IN
WITNESS WHEREOF, this six (6) page Agreement is executed and agreed to as
of
July 10, 2006.
CONSULTANT
|
By:
/s/ Xxxxx
Xxxxxxxx
|
|
|||
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Xxxxx
Xxxxxxxx
|
|
POCKETFINDER,
LLC.
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By:
/s/ Xxxxx
Xxxxx
|
|
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Xxxxx
Xxxxx --
Chief Executive Officer
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