Exhibit 10.10
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made on May 30, 1997,
between ZMAX CORPORATION, a Nevada corporation (the "Company"), and WAREHAM
MANAGEMENT LTD., a company organized under the laws of British Columbia, Canada
(the "Consultant").
AGREEMENT
In consideration of the above and the retention of the Consultant by the
Company, and the mutual agreements hereinafter set forth, the parties agree as
follows:
1. Engagement as a Consultant. The Company hereby retains the
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Consultant, and the Consultant hereby accepts such engagement by the Company,
upon the terms and conditions of this Agreement.
2. Duties. The Consultant is engaged to be available on a reasonable,
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on-call basis to provide consulting services related to accounting and financial
matters of the Company, as described in Exhibit A the ("Services"). The
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Consultant agrees to perform and discharge well and faithfully all Services as
the Company reasonably may request from time to time. The Consultant will hold
in trust for the Company all funds and property it receives on behalf of the
Company, and will account for and remit all such funds to the Company, as
applicable. The Consultant will report to the Board of Directors of the
Company. Unless otherwise agreed to by the Company, all Services to be
performed by the Consultant hereunder will be performed on behalf of the
Consultant exclusively by Xx. X.X. Xxxxxx Xxxxxxx, the President of the
Consultant, and Consultant will make Xx. Xxxxxxx available therefor. The
Consultant agrees to cause Xx. Xxxxxxx to serve, and Xx. Xxxxxxx agrees to
serve, without additional compensation, in the corporate positions to which he
may be elected or appointed by which the Company or its Board of Directors,
which the parties agree will not establish an employment relationship between
the Company and Xx. Xxxxxxx. Throughout the term of the Consultant's engagement
hereunder, the Consultant will devote the time necessary to perform the Services
but will not be required to devote its services on a full-time or exclusive
basis, so long as Consultant is performing its assigned or requested duties
under this Agreement.
3. Compensation. As compensation for the Services, the Company will pay
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to the Consultant the amount of U.S. $3,500.00 per month plus seven percent (7%)
to cover Canadian General Sales Tax (the "Consulting Fee"), payable on the first
business day of each month. The Consultant will receive no compensation in
addition to that set forth in this Agreement for any Services rendered to the
Company unless otherwise agreed to by the Company.
4. Reimbursement of Expenses. The Consultant will be entitled to be
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reimbursed in accordance with the policies of the Company, as adopted and
amended from time to time, for
all reasonable and necessary expenses incurred by him in connection with the
performance of Services pursuant to this Agreement; provided that the Consultant
will, as a condition of such reimbursement, submit acceptable verification of
the nature and amount of such expenses in accordance with the reimbursement
policies from time to time adopted by the Company.
5. Term and Termination. The term of the engagement of the Consultant by
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the Company will commence on the date of this Agreement and will continue for
one (1) year thereafter (the "Term"), unless sooner terminated as provided
herein. At the end of each expiring Term, the Term shall automatically renew
for an additional year, unless either the Consultant or the Company gives notice
of termination. The Company or the Consultant may terminate this Agreement with
or without cause on thirty (30) days notice to the other. Upon the termination
of the Consultant's engagement hereunder, the Company will have no further
obligation to the Consultant, except that the Company will pay to the Consultant
any compensation and reimbursement accrued up to the date of termination
hereunder and unpaid on such date of termination.
6. Agreement Not to Compete or Solicit Customers.
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(a) Agreement Not to Compete. The parties agree that, commencing on
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the effective date of this Agreement and continuing through the Consultant's
engagement hereunder and for two (2) years after the termination of this
Agreement (the "Applicable Period"), neither the Consultant nor Xx. Xxxxxxx will
(except on behalf of or with the prior written consent of the Company, which
consent may be withheld in Company's sole discretion), either directly or
indirectly, on the Consultant's or Xx. Xxxxxxx'x behalf, or on behalf of others,
(i) engage in (as a director, officer, principal, partner, consultant or
executive or managerial employee) or provide any of the same type of services
performed on behalf of the Company to any Competing Business or (ii) own a
controlling beneficial interest in a Competing Business. For purposes of this
Section, the Consultant and Xx. Xxxxxxx acknowledge and agree that the Business
of the Company (as defined below) is conducted worldwide. "Competing Business"
means any person, firm, corporation, joint venture or other business entity that
is engaged in any aspect of the design, production, marketing, distribution, or
provision of software engineering/reengineering of Year 2000 Compliance Products
and Services (the "Business of the Company") within the Area. "Year 2000
Compliance Products and Services" means software tools, methodologies, processes
and associated services (including without limitation, program management,
analysis, assessment, conversion, testing, quality assurance, and configuration
management) relating to computer software problems and issues associated with
the year 2000.
(b) Agreement Not to Solicit Customers. The Consultant and Mr.
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Wareham agree that during the Applicable Period, they will not, either directly
or indirectly, on the Consultant's or Xx. Xxxxxxx'x behalf or in the service of
or on behalf of others, solicit or divert, or attempt to solicit or divert, to a
Competing Business, any individual or entity (i) that is a client or customer of
the Company or an Affiliate, (ii) as to which, to the knowledge of Consultant or
Xx. Xxxxxxx, the Company or an Affiliate is in the process of making a proposal
or negotiating for a customer or client relationship or is discussing or
conducting a "pilot", or
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(iii) with whom the Company or an Affiliate jointly provides services or
products through alliances or joint ventures to a client or customer during the
term of the Consultant's engagement with the Company. "Affiliate" means any
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company.
7. Agreement Not to Solicit Employees. The Consultant and Xx. Xxxxxxx
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agree that during the Applicable Period, they will not, either directly or
indirectly, on the Consultant's or Xx. Xxxxxxx'x own behalf or in the service of
or on behalf of others, solicit, divert or hire away, or attempt to solicit,
divert or hire away, to any Competing Business any person employed by the
Company or an Affiliate, whether or not such employee is a full-time or
temporary employee of the Company or an Affiliate and whether or not such
employment is pursuant to written agreement, for a determined period or at will,
or any consultant or contractor of the Company or an Affiliate.
8. Ownership and Protection of Confidential Information and Trade Secrets.
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(a) Definitions. "Confidential Information" means data and
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information relating to the business of the Company or an Affiliate (which does
not rise to the status of a Trade Secret) that is or has been disclosed to the
Consultant by the Company or an Affiliate or of which the Consultant became
aware as a consequence of or through its relationship to the Company, which has
value to the Company and is not generally known to its competitors.
Confidential Information will not include any data or information that has been
voluntarily disclosed to the public by the Company (except where such public
disclosure has been made by the Consultant without authorization) or that has
been independently developed and disclosed by others, or that otherwise enters
the public domain through lawful means. "Trade Secrets" means information,
including a formula, pattern, compilation, program, device, method, technique,
or process that: (i) derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
(b) Confidentiality. All Confidential Information and Trade Secrets
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and all physical embodiments thereof received or developed by the Consultant
while engaged by the Company or an Affiliate are confidential to and are and
will remain the sole and exclusive property of the Company or Affiliate. Except
to the extent necessary to perform the duties assigned by the Company or an
Affiliate, the Consultant and Xx. Xxxxxxx will hold such Confidential
Information and Trade Secrets in trust and strictest confidence, and will not
use, reproduce, distribute, disclose or otherwise disseminate the Confidential
Information and Trade Secrets or any physical embodiments thereof and may in no
event take any action causing or fail to take the action necessary in order to
prevent, any Confidential Information and Trade Secrets disclosed to or
developed by the Consultant to lose its character or cease to qualify as
Confidential Information or Trade Secrets.
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(c) Return of Company Property. Upon request by the Company or an
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Affiliate, and in any event upon termination of the engagement of the Consultant
with the Company or an Affiliate for any reason, as a prior condition to
receiving any final fees or reimbursement hereunder (including any payments
pursuant to Section 3 hereof), the Consultant will promptly deliver to the
Company or an Affiliate all property belonging to the Company or an Affiliate,
including, without limitation, all Confidential Information and Trade Secrets
(and all embodiments thereof) then in the Consultant's or Xx. Xxxxxxx'x custody,
control or possession.
(d) Survival. The covenants of confidentiality set forth herein will
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apply on and after the date hereof to any Confidential Information and Trade
Secrets disclosed by the Company or an Affiliate, or developed by the Consultant
prior to or after the date hereof. The covenants restricting the use of
Confidential Information will continue and be maintained by the Consultant for a
period of two (2) years following the termination of this Agreement. The
covenants restricting the use of Trade Secrets will continue and be maintained
by the Consultant following termination of this Agreement for so long as
permitted by the Maryland Uniform Trade Secrets Act.
9. Remedies. The Consultant and Xx. Xxxxxxx agree that the covenants and
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agreements contained in Sections 6, 7, and 8 hereof are of the essence of this
Agreement; that each of such covenants is reasonable and necessary to protect
and preserve the interests and properties of the Company and the Business of the
Company; that the Company is engaged in the Business of the Company worldwide;
that irreparable loss and damage will be suffered by the Company should the
Consultant or Xx. Xxxxxxx breach any of such covenants and agreements; that each
of such covenants and agreements is separate, distinct and severable not only
from the other of such covenants and agreements but also from the other and
remaining provisions of this Agreement; that the unenforceability of any such
covenant or agreement will not affect the validity or enforceability of any
other such covenant or agreements or any other provision or provisions of this
Agreement; and that, in addition to other remedies available to it, the Company
will be entitled to specific performance of this Agreement and to both temporary
and permanent injunctions to prevent a breach or contemplated breach by the
Consultant or Xx. Xxxxxxx of any of such covenants or agreements.
10. No Set-Off. The existence of any claim, demand, action or cause of
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action by the Consultant or Xx. Xxxxxxx against the Company or any Affiliate,
whether predicated upon this Agreement or otherwise, will not constitute a
defense to the enforcement by the Company of any of its rights hereunder. The
existence of any claim, demand, action or cause of action by the Company against
the Consultant or Xx. Xxxxxxx, whether predicated upon this Agreement or
otherwise, will not constitute a defense to the enforcement by the Consultant of
any of its rights hereunder; provided, however, that the Company will have the
right to discontinue payments to the Consultant under Section 3(e) hereof, as
applicable, if the Consultant or Xx. Xxxxxxx should breach any of their
obligations under Sections 6, 7, or 8 hereof and the Company notifies the
Consultant of that breach.
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11. Notice. All notices, requests, demands and other communications
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required or permitted hereunder must be in writing and deemed given and
effective when personally delivered or sent by facsimile with confirmation of
receipt or when deposited in the mail with postage prepaid to the party to which
the same is directed at the following addresses (or at such other addresses as
will be given in writing by the parties to one another):
To the Company: ZMAX CORPORATION
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, President
Fax: 000-000-0000
To the Consultant: WAREHAM MANAGEMENT LTD.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
XXXXXX X0X 0X0
Attn: G.W. Xxxxxx Xxxxxxx
Fax: 000-000-0000
To Xx. Xxxxxxx: Xx. X.X. Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
XXXXXX X0X 0X0
Fax: 000-000-0000
12. Miscellaneous.
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(a) Assignment. Neither the Consultant nor Xx. Xxxxxxx may assign any
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rights or delegate any duties it has assumed hereunder without the prior written
consent of the other party. This Agreement is personal to the Consultant.
(b) Waiver. A party's waiver of any breach of this Agreement by
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another party will not be effective unless in writing, and no such waiver will
constitute the waiver of the same or another breach on a subsequent occasion.
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(c) Consultant as Independent Contractor. The Consultant and Mr.
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Wareham will act as an independent contractor in performing the Services and
will not hold itself or himself out as an employee or agent of the Company.
Neither the Consultant or Xx. Xxxxxxx has the authority to bind the Company by
virtue of this Agreement without the Company's express prior consent.
(d) Governing Law and Choice of Forum. This Agreement will be
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governed by and construed in accordance with the internal laws of the State of
Maryland. The parties agree that any appropriate state or federal court located
in Maryland will have exclusive jurisdiction of any case or controversy arising
under or in connection with this Agreement and will be a proper forum in which
to adjudicate such case or controversy. The parties expressly consent to
personal jurisdiction and venue in such courts.
(e) Entire Agreement/Amendment. This Agreement embodies the entire
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agreement of the parties hereto relating to the subject matter hereof and
supersedes all oral agreements, and to the extent inconsistent with the terms
hereof, all other written agreements. This Agreement may not be modified,
amended, supplemented or terminated except by a written instrument executed by
all parties hereto.
(f) Severability. Each of the covenants and agreements hereinabove
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contained will be deemed separate, severable and independent covenants, and in
the event that any covenant will be declared invalid by any court of competent
jurisdiction, such invalidity will not in any manner affect or impair the
validity or enforceability of any other part or provision of such covenant or of
any other covenant contained herein.
(g) Captions and Section Headings. Captions and section headings used
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herein are for convenience only and are not a part of this Agreement and will
not be used in construing it.
(h) Arbitration. Except as otherwise provided herein, any dispute
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arising under this Agreement will be submitted to a single arbitrator selected
by the American Arbitration Association whose rules of arbitration and
conciliation will apply. The American Arbitration Association will select an
arbitrator experienced in computer consulting.
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EXECUTED AS OF MAY ___, 1997.
ZMAX CORPORATION
By: /s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
WAREHAM MANAGEMENT LTD.
By: /s/G.W. Xxxxxx Xxxxxxx
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G.W. Xxxxxx Xxxxxxx
President
/s/G.W. Xxxxxx Xxxxxxx
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G.W. Xxxxxx Xxxxxxx
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EXHIBIT A
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DUTIES OF CONSULTANT
The duties of the Consultant will be as follows:
(a) Act as liaison between investors of and attorneys for the company.
(b) Prepare bank documents, including wire transfers.
(c) Maintain U.S. and Canadian financial records for Company.
(d) Assist auditors of the company with financial statements and audit.
(e) Maintain and update the Company's financial records.
(f) Prepare interim financial statements and reports.
(g) Set up accounts with The Depository Trust Company and the Canadian
Depository Trust to track the brokerage and individual transaction of
trading in the Company's stock.
(h) Review reports from Depository Trust and Canadian Depository Trust and
disseminate internally.
(i) Such other acts as the Company's management or Board of Directors may
request from time to time.