CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
and effective this 23rd day of August 2004, by and between Trust Licensing, Inc.
a Delaware corporation formerly known as New Mountaintop Corporation, (the
"Company") and Xxxx Xxxxxx, Ph.D. (the "Consultant").
R E C I T A T I O N S
A. The Company recognizes that the Consultant has a doctorate in finance and
otherwise possesses extensive knowledge and experience regarding the businesses
in which the Company is engaged. The Company believes that the Consultant's
business advice will be extremely beneficial to the Company and wishes to obtain
such advice and the benefit of the Consultant's knowledge and experience.
B. The Company desires to retain the services of the Consultant and the
Consultant desires to provide services to the Company, subject to the terms and
conditions set forth in this Agreement.
O P E R A T I V E P R O V I S I O N S
In consideration of the foregoing recitations, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, the parties hereto, intending
legally to be bound, hereby covenant and agree as follows:
ARTICLE I
Engagement
1.1 Engagement of Consultant. The Company hereby engages the Consultant
and the Consultant hereby agrees to provide consulting services as set forth in
Section 1.2 of this Agreement (the "Services").
1.2 Services to be Provided.
A. Services. During the Term, as defined, of this Agreement,
the Consultant personally shall serve as a financial consultant to the Company
and perform such related services as may be reasonably requested by the Company
from time to time, and at such time and in such manner as agreed to by the
Consultant (collectively referred to herein as the "Services").
B. Performance of Services. The Consultant is responsible for
reasonably determining the method, details and means of performing the services
required under this Agreement. Such consultation may be by telephone, in writing
or by other method of communication which the Company and the Consultant
mutually agree. The Consultant shall provide the Services required hereunder at
such location or locations which the Consultant and the Company mutually agree.
C. Hours. Notwithstanding any other provision of this
Agreement, it is agreed that the Consultant shall not be required to devote any
minimum amount of time during any particular month or year, but shall perform
the Services pursuant to this Agreement on an "as needed" basis at such times
and for such periods as the Company may reasonably request and as consistent
with the Consultant's schedule. The Consultant shall use his best efforts in
good faith to provide consulting services when requested to do so by the
Company.
1.3 Term of Agreement. The term of this Agreement shall commence on
August 23, 2004 and shall continue until August 22, 2006 (the "Term"), unless
terminated in accordance with the provisions of Article 3 hereof.
1.4 Nature of Consulting Relationship. It is agreed and understood by
the parties to this Agreement that, for all purposes, during the term of this
Agreement, the Consultant shall serve solely as an independent contractor of the
Company and shall not be an employee of the Company in any capacity. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and Company. As an
independent contractor, the Consultant (a) shall, subject to Section 1.2 A,
accept any directions issued by the Company pertaining to the goals to be
attained and the results to be achieved by him, but shall be solely responsible
for the manner and hours in which he will perform his services under this
Agreement, (b) shall not be entitled to any employee or fringe benefits
available to employees of the Company, and (c) shall be solely responsible for
the payment of any federal, state and local taxes applicable to the fees and
expenses paid or payable by the Company in connection with Consultant's
engagement.
ARTICLE II
Compensation
2.1 Compensation. In consideration for the Services to be provided by
the Consultant pursuant to Section 1.2 hereof, the Company shall pay a fee (the
"Compensation") to the Consultant at a rate of Two Thousand Five Hundred Dollars
($ 2,500.00) per month. The compensation shall begin to accrue upon execution
hereof and any accrued fees shall be immediately payable upon Company receiving
net cash financing proceeds of at least $500,000. Payments shall thereafter be
payable in cash on a monthly basis.
2.2 Expense Reimbursement. Upon the submission of proper substantiation
by the Consultant, and subject to the advance written approval by an officer of
the Company and such other rules and guidelines as the Company may from time to
time adopt, the Company shall reimburse the Consultant for all reasonable
expenses actually paid or incurred by the Consultant during the Term in the
course of and pursuant to the business of the Company. The Consultant shall
account to the Company in writing for all expenses for which reimbursement is
sought and shall supply to the Company copies of all relevant invoices, receipts
or other evidence reasonably requested by the Company.
ARTICLE III
Termination
3.1 Termination. Notwithstanding anything to the contrary contained in this
Agreement, the engagement and provision of Services under this Agreement shall
terminate only on the earliest of:
(i) the expiration of the Term as set forth in Section 1.3; or
(ii) the date on which one party (the "Terminating Party")
provides written notice of such termination to the other party (the
"Breaching Party") by reason of the fact that the Breaching Party has
materially breached his or its obligations under this Agreement, which
breach is not cured by the Breaching Party within 30 days after the
Terminating Party has given written notice of such breach to the
Breaching Party; provided, however, that the Terminating Party shall
not be obligated to offer notice and an opportunity to cure if the
breach is not curable. If the breach is not cured, the Company shall
have no liability to pay any fees accruing during the 30 day period.
ARTICLE IV
Restrictive Covenants
4.1 Confidentiality. The Consultant agrees to keep all Confidential
Information (as defined in Section 4.2 herein) strictly and permanently
confidential and agrees that he shall not at any time (whether during or after
the Term) directly or indirectly use for any purpose, or disclose or permit to
be disclosed to any person or entity, any Confidential Information unless
compelled, or required by law. The Consultant acknowledges that the Confidential
Information constitutes unique and valuable assets of the Company and such
Confidential Information was acquired at great time and expense by the Company,
and that any disclosure or other use of such Confidential Information, other
than for the sole benefit of the Company, would be wrongful and would cause
irreparable harm to the Company.
4.2 Confidential Information. The term "Confidential Information" means
any non-public information (whether or not in written form and whether or not
expressly designated as confidential) relating directly or indirectly to the
Company or any of the Company's subsidiaries or affiliates or relating to the
business, operations, financial affairs, performance, assets, investments,
technology, processes, products, contracts, customers, licensees, sublicensees,
suppliers, personnel, plans or prospects of the Company or any of the Company's
subsidiaries or affiliates, including such information consisting of or
otherwise relating directly or indirectly to trade secrets, know how,
technology, designs, drawings, processes, license or sublicense arrangements,
formulae, proposals, customer lists or preference, pricing lists, referral
sources, marketing or sales techniques or plans, operation manuals, service
manuals, financial information, projections, lists of suppliers or distributors
or sources of supply; provided, however, that "Confidential Information" shall
not be deemed to include information which, at the time of initial disclosure to
the Consultant, is part of, or without violation of this Agreement or by fault
of, the Consultant becomes part of the public domain or becomes public
knowledge, or is otherwise readily accessible to third parties or the public.
4.3 Documents, Records, etc. All documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to the Consultant by the Company or are
produced by the Consultant in connection with the Consultant's service with the
Company will be and remain the sole property of the Company. The Consultant will
return to the Company all such materials and property as and when requested by
the Company. In any event, the Consultant will return all such materials and
property immediately upon termination of the Consultant's service with the
Company for any reason. The Consultant will not retain with the Consultant any
such material or property or any copies thereof after such termination.
4.4 Noncompetition. During the Term, Consultant will not, for himself
or on behalf of any person, partnership, trust, company or other entity for
whatever reason be engaged with, directly or indirectly (either as an employee,
officer, director, partner, shareholder, consultant or independent contractor),
or take part in, or own, share in the earnings of, or invest in the stock or
other securities of, any person, firm or corporation that competes directly with
Company; provided, however, that it shall not be deemed a violation of this
section if Consultant owns less than five percent (5%) of the issued and
outstanding stock of a publicly traded competing business.
ARTICLE V
Miscellaneous
5.1 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, among the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended or modified in any way except by a written instrument executed by the
Company and the Consultant.
5.2 Notices and Addresses. All notices, offers, acceptance and any
other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by Federal
Express or similar overnight next business day delivery, or by facsimile
delivery followed by overnight next business day delivery, as follows:
If to the Consultant: Xxxx Xxxxxx, Ph.D.
0000 X.X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxx, P.A.
1555 Palm Beach Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company: Trust Licensing, Inc.
000 X. Xxxx Xxxxxx Xxxx
Xxxxx X000-0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx X. Xxxx, Esq.
XxXxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the receipt.
5.3 Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida, without
giving effect to conflict of laws principles. With respect to any disputes
concerning federal law, such disputes shall be determined in accordance with the
law as it would be interpreted and applied by the United States Court of Appeals
for the Eleventh Circuit.
5.4 Assignment: Successors and Assigns. Neither the Consultant nor the
Company may make an assignment of this Agreement or any interest herein, by
operation of laws or otherwise, without the prior written consent of the other
party; provided that the Company may assign its rights (but may not delegate or
transfer its obligations) under this Agreement without the consent of the
Consultant in the event that the Company shall effect a reorganization,
consolidate with or merge into any other corporation, partnership, organization
or other entity, or transfer all or substantially all of its properties or
assets to any other corporation, partnership, organization or other entity. This
Agreement shall inure to the benefit of and be binding upon the Company and the
Consultant, their respective heirs, personal representatives, executors,
administrators, legal representatives, successors and assigns.
5.5 Waiver. The waiver by any party hereto of the other party's prompt
and complete performance or breach or violation of any provision of this
Agreement shall not operate nor be construed as a waiver of any subsequent
breach or violation, and the waiver by any party hereto to exercise any right or
remedy which he or it may possess shall not operate nor be construed as the
waiver of such right or remedy by such party or as a bar to the exercise of such
right or remedy by such party upon the occurrence of any subsequent breach or
violation.
5.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall be
declared invalid by a court of competent jurisdiction, then this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
5.7 Arbitration of Disputes. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by arbitration
in Broward County, Florida, if brought by Consultant, and in Orange County,
Florida, if brought by Company, in accordance with the Rules of the American
Arbitration Association then in effect (except to the extent that the procedures
outlined below differ from such rules). The cost and expenses of the arbitration
and of enforcement of any award in any court shall be borne by the
non-prevailing party. If advances are required, each party will advance one-half
of the estimated fees and expenses of the arbitrators. Judgment may be entered
on the arbitrators' award in any court having jurisdiction. Although arbitration
is contemplated to resolve disputes hereunder, either party may proceed to court
to obtain an injunction to protect its rights hereunder, the parties agreeing
that either could suffer irreparable harm by reason of any breach of this
Agreement. Pursuit of an injunction shall not impair arbitration on all
remaining issues. In the event that either party hereto shall bring suit seeking
an injunction of any action constituting a breach of any of the terms or
provisions of this Agreement, then the party at fault shall pay all reasonable
court costs and attorney's fees of the other.
5.8 Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 5.7 of this Agreement, the
parties hereby consent to the jurisdiction of the Supreme Court of Florida,
Florida District Courts of Appeal, and United States District Courts in Florida.
Accordingly, with respect to any such court action, the Consultant (i) submits
to the personal jurisdiction of such courts; (ii) consents to service of
process; and (iii) waives any other requirement (whether imposed by statute,
rule of court, or otherwise) with respect to personal jurisdiction or service of
process.
5.9 Compliance with Legal Requirements. The Company shall not provide
workers' compensation, disability insurance, Social Security or unemployment
compensation coverage nor any other statutory employee benefits to the
Consultant. The Consultant shall comply at his expense with all applicable
provisions of workers' compensation laws, unemployment compensation laws,
federal Social Security law, the Fair Labor Standards Act, federal, state and
local income tax laws, and all other applicable federal, state and local laws,
regulations and codes relating to independent contractors.
5.10 Gender and Number. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
5.11 Section Headings. The section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of any or all of the provisions of this Agreement.
5.12 No Third Party Beneficiary other than Company. Nothing expressed
or implied in this Agreement is intended, or shall be construed, to confer upon
or give any person, firm, corporation, partnership, association or other entity,
other than the parties hereto and each of their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
5.13 No Authority to Bind Company. The Consultant does not and shall
not have any authority to enter into any contract or agreement for, on behalf of
or in the name of the Company, or to legally bind the Company to any commitment
or obligation.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
TRUST LICENSING, INC., a Delaware corporation
By: ________________________________
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
CONSULTANT:
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Xxxx Xxxxxx, Ph.D.
