EXHIBIT 10.35
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") dated as of the 15th day of
September 2006, between POWER2SHIP, INC., a Nevada corporation ("P2S"), and
Xxxxxxx Xxxxx (Consultant)
R E C I T A L S:
A. Company desires to engage Consultant on a non-exclusive basis to
provide the services hereinafter described relating to the Company; and
B. Consultant acknowledges that he has the technical knowledge and
business background and experience to undertake his duties hereunder and will
diligently and faithfully render the services requested by Company.
NOW, THEREFORE, in consideration of the terms and the mutual
undertakings contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, it is
agreed as follows:
1. Term. Subject to the terms and conditions set forth herein, the term
of this Agreement shall commence on the date set forth above (the "Effective
Date") and expire on September 14, 2011 (the Expiration Date").
2. Services, Availability of Consultant. Company hereby engages
Consultant to provide the services herein described in Section 3 (the
"Services") and to use his best efforts to perform his obligations hereunder.
Consultant may provide the services from any location and in any form (i.e.,
oral, written, electronic, etc.) that he deems appropriate. Nonetheless, unless
prevented by sickness or disability, the Consultant shall be available with
reasonable advance notice during normal working hours, and at such other times
as may reasonably be required to perform Consultant's service, to participate in
meetings at the Company's or other locations, as directed by the Company's Chief
Executive Officer. The Consultant acknowledges that in the course of providing
consulting services, Consultant may be required, from time to time, to travel on
behalf of the Company at the Company's expense. The Consultant shall be
prohibited from providing consulting services to other companies that may
reasonably be deemed to be competitors of the Company unless Consultant obtains
the prior written permission from the Company's Chief Executive Officer.
3. Duties. For purposes hereof, the Services shall include:
(a) Advising the Company's management and Board of Directors on
business matters as requested by the Company's Chief Executive Officer;
(b) Identifying and introducing the Company to prospective investors or
lenders;
(c) Identifying and introducing the Company to potential strategic
partners, acquisition or merger candidates or joint venture parties; and
(d) Such other duties as reasonably requested by the Company's Chief
Executive Officer.
4. Compensation. As compensation hereunder, the Company shall pay to
Consultant a monthly fee or service payment at the rate of $10,000 per month.
One-half of the consulting fee shall be paid semi-monthly, in arrears, on the
15th day and the last day of each month during the entire term of this Agreement
commencing September 30, 2006.
5. Termination:
a. The Agreement shall terminate upon the occurrence of any of the
following events:
i. The Expiration Date;
ii. Upon written notice to Consultant by the Company of
termination of the Agreement for Cause (as defined in Section
5(b)) or
iii. Upon thirty (30) days written notice of termination by
Consultant to Company for any reason
b. For purposes of this Agreement, the term "Cause" shall mean the
Consultant's i) conviction or entry of a plea of guilty or nolo contendere, with
respect to any felony; (ii) commission of any act of willful misconduct, gross
negligence, fraud or dishonesty that materially affects the Company; or (iii)
violation of any material term of this Agreement, provided that the Company
first delivers written notice thereof to the Consultant and the Consultant shall
not have cured such violation within ten (10) days after receipt of such written
notice. Notwithstanding the foregoing, Consultant may not be terminated for
Cause in the event of his death or disability.
c. Unless terminated pursuant to Sections 5.a. and 5.b. herein,
Consultant's compensation shall be paid to Consultant or his designated
beneficiaries during the entire term of the Agreement.
6. Confidentiality.
(a) In connection with this Agreement, Consultant may gain access to
Confidential Information (as hereinafter defined) of Company and/or its
Affiliates. Confidential Information includes information communicated orally,
in writing, by electronic or magnetic media, by visual observation, or by other
means, and may be marked confidential or proprietary, or bear a marking of like
import, or which Company or any of its Affiliates state to be Confidential or
proprietary, or which would logically be considered confidential or proprietary
under circumstances of its disclosure known to Consultant.
(b) Consultant acknowledges and understands that (i) Confidential
Information provides Company and its Affiliates with a competitive advantage (or
that could be used to the disadvantage of Company and its Affiliates by a
competitor), (ii) Company and its Affiliates have a continuing interest in
maintaining the confidentiality of Confidential Information and (iii) Company
and its Affiliates have a compelling business interest in preventing unfair
competition stemming from the use or disclosure of Confidential Information.
Moreover, Consultant acknowledges that clients of Company and/or its Affiliates
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entrust Company and its Affiliates with responsibility for acquiring knowledge
relating to aspects of their clients' businesses, with the expectation that
Company and its Affiliates will hold all such knowledge, including in some cases
the fact that they are doing business with Company and its Affiliates, and the
specific transactions in which they are engaged, in the strictest confidence
("Client Confidences").
(c) For purposes hereof, "Confidential Information" includes, but is
not limited to information pertaining to business plans, technology,
intellectual property, joint venture agreements, licensing agreements, financial
information, contracts, customers, Client Confidences, employee identities and
contact information, products, trade secrets, specifications, designs, plans,
drawings, software, data, prototypes, processes, methods, research, development
or other information relating to the business activities and operations of
Company and/or its Affiliates.
(d) Consultant agrees to keep Confidential Information confidential
and, except as authorized by Company or any of its Affiliates, in writing,
Consultant shall not, directly or indirectly, use Confidential Information for
any reason except to perform his obligations under this Agreement. No other
rights or licenses, to trademarks, inventions, copyrights, patents or any other
intellectual property rights are implied or granted under this Agreement or by
the conveying of Confidential Information to Consultant.
(e) Consultant shall use Confidential Information only for purposes of
performing under this Agreement. In the event the performance of the Services
requires Consultant to disclose Confidential Information to any employee, agent,
representative or other third person, disclosure shall be made only on an "as
needed" basis and Consultant shall advise those persons who require access to
the Confidential Information of their obligations with respect thereto. Further,
Consultant shall copy Confidential Information only as necessary, and ensure
that all confidentiality notices are reproduced in full on such copies.
(f) The restrictions in subsection (d) of this Section shall not apply
to any Confidential Information if Consultant can demonstrate that the
Confidential Information:
(i) is or becomes available to the public through no breach of
this Agreement;
(ii) was previously known by Consultant without any obligation to
hold it in confidence;
(iii) is received from a third party free to disclose such
information without restriction;
(iv) is independently developed by Consultant without the use of
the Confidential Information;
(v) is approved for release by written authorization of Company;
(vi) is required by law or regulation to be disclosed, but only to
the extent and for the purposes of such required disclosure;
or
(vii) is disclosed in response to a valid order of a court or lawful
request of a governmental agency, but only to the extent of
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and for the purposes of such order or request, provided that
Consultant notifies Company of the order or request ten days
prior to disclosure and permits Company and/or its Affiliate
to seek an appropriate protective order.
7. Representations and Covenants of Consultant.
(a) Consultant hereby represents and warrants to Company that (i)
Consultant has the full, complete and entire right, power and authority to enter
into this Agreement, (ii) the execution of this Agreement by Consultant and the
performance of Consultant's Services hereunder will not, directly or indirectly,
violate, or be a breach of, any agreement, law, rule, regulation, order,
commitment or responsibility of any kind, (iii) this Agreement contains the
valid and binding obligations of Consultant and (iv) Consultant is not, directly
or indirectly, in breach of any confidentiality agreement or covenant not to
compete to which he is a party.
(b) Consultant will not use in the performance of his responsibilities
under this Agreement any confidential or proprietary information or trade
secrets of any other person or entity.
(c) Consultant has not entered into and will not enter into any
agreement (whether oral or written) in conflict with this Agreement.
(d) Consultant will promptly advise Company of any potential conflict
of interest that may arise during his service as a consultant to Company, and
will withdraw from any activity upon request when Company, in its sole
discretion, deems such withdrawal necessary or desirable to avoid any actual or
potential conflict of interest.
(e) Consultant shall execute and deliver to Company such Non-Disclosure
Agreements and/or Business Ethics and related policies as are established from
time-to-time by Company, and are generally applicable to Company's consultants.
8. Liability and Indemnification. Consultant (including any person or
entity acting for or on behalf of Consultant) shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the gross
negligence or intentional misconduct of Consultant or any person or entity
acting for or on behalf of Consultant. The Company and its present and future
subsidiaries, jointly and severally, agree to indemnify and hold harmless
Consultant and its present and future shareholders as well as its and their
officers, directors, affiliates, associates, employees, shareholders, attorneys
and agents ("Indemnified Parties" or "Indemnified Party") against any loss,
claim, damage or liability whatsoever (including reasonable attorneys' fees and
expenses) to which such Indemnified Party may become subject as a result of
performing any act (or omitting to perform any act) contemplated to be performed
by Consultant pursuant to this Agreement if such act or omission did not violate
the provisions of this Section 7 of this Agreement. So long as the Company has
not provided counsel to the Indemnified Party in accordance with the terms of
the Agreement, the Company and its subsidiaries agree to reimburse the defense
of any action or investigation (including reasonable attorneys' fees and
expenses) subject to an understanding from such Indemnified Party to repay the
Company or its subsidiaries if it is ultimately determined that such Indemnified
Party is not entitled to such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any Indemnified Party, it
shall notify the company within twenty (20) days after the Indemnified Party
receives notice of such action, suit or such threat. The Company shall have the
right to appoint the Company's counsel to defend such action, suit or
proceeding, provided that such Indemnified Party consents to such representation
by such counsel, which consent shall not be unreasonably withheld. In the event
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any counsel appointed by the Company shall not be acceptable to such Indemnified
Party, then the Company shall have the right to appoint alternative counsel for
such Indemnified Party reasonably acceptable to such Indemnified Party, until
such time as acceptable counsel can be appointed. In any event, the Company
shall, at its sole cost and expense, be entitled to appoint counsel to appear
and participate as co-counsel in the defense thereof. The Indemnified Party, or
its co-counsel, shall promptly supply the Company's counsel with copies of all
documents, pleadings and notices that are filed, served or submitted in any of
the aforementioned. No Indemnified Party shall enter into any settlement without
the prior written consent of the Company, which consent shall not be
unreasonably withheld.
9. Notices. Unless otherwise specifically provided herein, all notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailed,
certified or registered mail, return receipt requested, with postage prepaid at
the following addresses, and/or to such other addresses and/or persons which
either party may designate by like notice:
(a) if to Consultant, to:
00000 XX 00 Xxxxx
Xxxxxxx, Xxxxxxx 00000
(b) if to Company, to:
Power2Ship, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
10. Independent Contractor and Non-Exclusivity. The relationship of
Consultant to Company shall be that of an independent contractor. Nothing herein
shall create an employment relationship between the parties, or a joint venture.
Each party shall pay the taxes attributable to it, including those, if any,
arising by reason of execution of this Agreement. Consultant shall pay all taxes
and the cost of insurance and health and other benefits to which Consultant may
be entitled and Company shall have no obligation to pay any such taxes,
insurance, benefits or similar items for or on behalf of Consultant or any
person employed by Consultant. Subject to the terms and conditions of this
Agreement, neither party shall operate under the direct or indirect supervision
of the other. Moreover, neither party shall attempt, or have the right, to bind
the other party to any agreement, understanding or contract with any third
party. Consultant shall retain, by employment or otherwise, such personnel as he
deems necessary to perform his obligations under this Agreement. The
compensation, benefits, taxes, insurance and all other aspects of the
relationship between Consultant and his employees and/or agents shall be the
sole responsibility of Consultant, and Company shall have no responsibility
therefore. No provision of this Agreement shall be construed to preclude the
Consultant, or any officer, director, agent, assistant, affiliate or employee of
Consultant from engaging in any activity whatsoever, including, without
limitation, receiving compensation for managing investments or acting as an
advisor, participant in any corporation, partnership, trust or other business
entity not in competition with the Company or from receiving compensation or
profit therefor. Consultant shall have no obligation to present any business
combination to the Company and shall incur no liability for its failure to do
so. The foregoing notwithstanding, the Consultant shall devote not less than 50%
of its working time to the affairs of the Company.
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11. Additional Provisions.
(a) This Agreement shall inure to the benefit of, and be binding upon,
Company and Consultant and their respective successors and assigns. Consultant
shall not assign or delegate the performance of any of his rights and/or
obligations under this Agreement without the prior written consent of Company
and any attempted assignment in violation of this Agreement shall be null and
void.
(b) This Agreement constitutes the entire Agreement, representation and
understanding of the parties hereto with respect to the subject matter hereof,
and no amendment or modification hereof shall be valid or binding unless made in
writing and signed by the parties hereto.
(c) No waiver of any provision of this Agreement shall be valid unless
the same is in writing and signed by the party against whom it is sought to be
enforced. No waiver of any default or breach of this Agreement shall be deemed a
continuing waiver or a waiver of any other breach or default.
(d) If any provision of this Agreement is invalid or unenforceable in
any jurisdiction such provision shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability, but the foregoing shall
not render invalid or unenforceable in such jurisdiction the remainder of this
Agreement or the remainder of such provision or affect the validity or
unenforceability of any provision of this Agreement in any other jurisdiction.
(e) Any legal suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby shall be instituted
exclusively in a federal or state court of competent jurisdiction located in the
County of Palm Beach, State of Florida. Each of the parties hereto hereby: (i)
waives any objection which it may now have or hereafter have to the venue of any
such suit, action or proceeding, and (ii) irrevocably consents to the
jurisdiction of such courts in any such suit, action or proceeding. The parties
further agree to accept and acknowledge service of any and all process which may
be served in any such suit, action or proceeding and agree that service of
process upon a party mailed by certified mail to such party's address shall be
deemed in every respect effective service of process upon such party in any such
suit, action or proceeding. Each of the parties waives any right to object to
the jurisdiction, the venue of either of such courts, or to claim any such court
is an inconvenient forum.
(f) Consultant acknowledges that prior to the execution of this
Agreement he had full opportunity to consult with his own independent attorneys
and advisors as deemed appropriate and Consultant fully understands the nature
and scope of his rights and obligations hereunder.
(g) The Parties agree that should any dispute arise in the
administration of this Agreement, the dispute shall be resolved through
arbitration under the rules of the American Arbitration Association, with its
location in the State of Florida and County of Palm Beach.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be executed as of the date first above written.
POWER2SHIP, INC.
By:
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Chief Executive Officer
CONSULTANT
By:
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Xxxxxxx Xxxxx
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