EXHIBIT 10.5
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement') is dated as of March 8,
2006 (the "Effective Date") by and between RIM SEMICONDUCTOR COMPANY, a Utah
corporation (the "Company"), and ADVISOR ASSOCIATES, INC., a New York
corporation (the "Consultant").
RECITALS:
WHEREAS, the Company desires to engage the services of the Consultant
for the purpose of performing consulting services on behalf of the Company, and
the Consultant agrees to perform such services, subject to the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
and upon the terms and subject to the conditions hereinafter set forth, the
Company and the Consultant hereby covenant and agree as follows:
1. SERVICES. Company hereby engages and Consultant agrees to serve the
Company as an independent contractor providing strategic planning, investor
relations and other valuable services to the Company. The parties hereby
acknowledge that Consultant makes no representation or warranty whatsoever that
it is a registered broker-dealer or investment advisor or other similar capacity
under applicable securities laws.
2. TERM AND TERMINATION. The term of this Agreement shall begin on the
Effective Date and terminate two years after the Effective Date; provided,
however, that this Agreement may be terminated at any time by either party upon
sixty days' written notice to the other party.
3. COMPENSATION. In consideration of the services to be rendered by the
Consultant during the term of this agreement, the Company shall issue to
Consultant, 9,000,000 shares of the Company's Common Stock, as soon as
practicable following the Effective Date. Company shall include 3,000,000 of
these shares in the Company's registration statement on form SB-2. It is
understood that 6,000,000 of these shares shall be restricted Common Stock.
4. REIMBURSEMENT OF EXPENSES. In addition to the Compensation described
in Section 3 above, Consultant shall be reimbursed by the Company for all
reasonable out-of-pocket disbursements incurred by Consultant in connection with
the performance of his services under this Agreement, including but not limited
to meals, lodging and other travel expenses. Expenses in excess of $1,000 must
be approved in advance by the Chief Executive Officer of the Company.
5. DEVOTION OF TIME. Subject to the provisions hereof, during the term
of this Agreement, Consultant shall cause its employees and affiliated persons
to devote such of its time and effort as may be reasonably necessary to the
discharge of its duties hereunder. The Company acknowledges that Consultant is
engaged in other business activities, and that it will continue such activities
during the term hereof. Notwithstanding anything to the contrary herein
contained, Consultant shall not be restricted from engaging in other business
activities during the term of this Agreement, and Consultant , acting through
its employees and affiliated persons shall not be required to devote any
specified amount of time to the Consulting Services hereunder.
6. CERTAIN FEDERAL SECURITIES LAW MATTERS. Consultant acknowledges that
he is aware that the federal securities laws prohibit any person who has
received from an issuer material, non-public information concerning the issuer
from purchasing or selling securities of such issuer or from communicating such
information to any other person hider circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
Consultant acknowledges receipt of and agrees to abide by the Company's xxxxxxx
xxxxxxx policy.
7. NONDISCLOSURE OF PROPRIETARY INFORMATION. Consultant acknowledges
that he has received or may receive information relating to the Company's and
any of its affiliates' assets, operations, clients, and past, present, and
future businesses, including without limitation developments, technical data,
intellectual property, specifications, designs, ideas, product plans, research
and development, personal information, financial information, customer lists,
business methods and operations, strategic plans. marketing plans and pricing
information, all of which are proprietary to the Company and involve trade
secrets, know-how, techniques, and combinations of known information of a
character regarded by the Company as confidential, as well as other information
that the Company has indicated to be confidential or which, by the nature of the
information or the circumstances of its disclosure, Consultant ought reasonably
to consider confidential (all of the foregoing, collectively, the "Proprietary
Information"). The Proprietary Information does not include information which
(i) at the timc it is disclosed by the Consultant was already in the public
domain; (ii) is subsequently published or publicly disclosed by persons other
than Consultant through no fault of Consultant; (iii) is subsequently acquired
by Consultant from a third party having no obligation of confidentiality toward
the Company with respect to such information; or (iv) is known to Consultant at
the time of disclosure, provided that Consultant shall have the burden of
establishing such prior knowledge by competent written proof. If Consultant is
compelled by law to disclose Confidential Information, he shall use his best
efforts to give the Company ten (10) days prior written notice of compelled
disclosure and shall limit such disclosure to the extent legally possible.
Consultant agrees that Consultant will not disclose, either during the
term of this Agreement or at any time after termination of this Agreement, any
Proprietary Information to any person or entity, except in the course of
Consultant's duties on behalf of the Company or with the Company's consent, and
that, similarly, without the Company's consent, will not use such information
for the benefit of any person or entity other than the Company at any time.
Consultant agrees that upon termination of this Agreement, Consultant will
deposit with or return to the Company all copies (in any media, including,
without limitation, electronic storage media) of documents, records, notebooks
or any other information or documentation of the Company's Proprietary
Information, and all derivatives thereof, whether the Proprietary Information or
documentation was developed or prepared by Consultant or by others. Consultant
acknowledges that this covenant of nondisclosure is an integral term of this
Agreement and is given in consideration of the engagement of Consultant and the
other consideration granted in this Agreement.
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8. COMPANY'S REPRESENTATIONS. Company represents and warrants that it
is free to enter into this Agreement and to perform each of its terms and
covenants. Company represents and warrants that it is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement and that its execution and performance of this Agreement is not a
violation or breach of any other agreements between Company and any other person
or entity. The Company represents and warrants that this Agreement is a legal,
valid and binding agreement of the Company, enforceable in accordance with its
terms.
9. CONSULTANT REPRESENTATIONS. Consultant represents and warrants that
he is free to enter into this Agreement and to perform each of its terms and
covenants. Consultant represents and warrants that it is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement, and that the execution and performance of this Agreement is not a
violation or breach of any other agreement between Consultant and any other
person or entity. The Consultant represents and warrants that this Agreement is
a legal, valid and binding agreement of the Consultant, enforceable in
accordance with its terms.
10. MULTIPLE COUNTERPARTS. This Agreement may be executed in
counterparts, each of which for all purposes is to be deemed an original, and
all of which constitute, collectively, one agreement.
11. SEVERABILITY AND SAVINGS CLAUSE. If any one or more of the
provisions contained in this Agreement is for any reason (i) objected to,
contested or challenged by any court, government authority, agency, department,
commission or instrumentality of the United States or any state or political
subdivision thereof, or any securities industry self-regulatory organization
(collectively, "Governmental Authority"), or (ii) held to be invalid, illegal or
unenforceable in any respect, the parties hereto agree to negotiate in good
faith to modify such objected to, contested, challenged, invalid, illegal or
unenforceable provision. It is the intention of the parties that there shall be
substituted for such objected to, contested, challenged, invalid, illegal or
unenforceable provision a provision as similar to such provision as may be
possible and yet be acceptable to any objecting Governmental Authority and be
valid, legal and enforceable. Further, should any provisions of this Agreement
ever be reformed or rewritten by a judicial body, those provisions as rewritten
will be binding, but only in that jurisdiction, on Consultant and the Company as
if contained in the original Agreement. The invalidity, illegality or
unenforceability of any one or more provisions hereof will not affect the
validity and enforceability of any other provisions hereof.
12. SUCCESSORS; ASSIGNMENT. This Agreement and the rights and
obligations under this Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective successors and permitted
assigns. Neither this Agreement nor any rights or benefits under this Agreement
may be assigned by either party to this Agreement without the other party's
prior written consent.
13. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and alt
other agreements, either oral or in writing, between the parties with respect to
the engagement of the Consultant by the Company (including any previously
executed agreement that has not been fully performed by both parties), and
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contains all of the covenants and agreements between the parties with respect
thereto. This Agreement can only be amended by the parties in writing, executed
by the party against whom enforcement of any modifications may be sought.
14. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of California without regard
to conflict of law provisions. Any dispute arising under or relating to this
Agreement or the parties' respective rights and duties hereunder shall be
resolved by binding arbitration to be held in New York, New York under the
Simplified Rules of the Judicial Arbitration and Mediation Service (JAMS).
Judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. Any party may commence arbitration under this
provision by the delivery to the to the other party of a written dispute notice
setting forth a brief description of the matter to be resolved (the "Dispute
Notice").
15. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally- recognized overnight carrier or (iii) sent
by registered or certified mail, postage prepaid, return receipt requested,
addressed to the addresses set forth below each party's name on the signature
page hereto, or to such other address as the party to whom notice is to be given
may have furnished to each other party in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally recognized overnight courier and (iii) on
the third Business Day following the date on which the piece of nail containing
such communication is posted, if sent by mail. As used herein, "Business Day"
means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.
16. THIRD PARTY BENEFICIARY. No person, firm, group or corporation is a
third party beneficiary of this Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed the Agreement as
of the date first mentioned above.
COMPANY:
RIM SEMICONDUCTOR COMPANY
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: President and Chief Executive Officer
Address: 000 XX 000xx Xxx, Xxx. 000
Xxxxxxxx, XX 00000
CONSULTANT:
ADVISOR ASSOCIATES, INC.
By: /s/ S. Winehouse
--------------------------------------
Name: Xxxxxx Winehouse
Title: President
Address: 0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
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