EXHIBIT 10.29
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement") dated as of August 1, 2004 between
NS8 Corporation, Inc. ("NS8" or the "Company"), a Delaware corporation, having
offices at One Union Square, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx
00000, XXX, and Xxxxx 000, 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X
0X0, Xxxxxx, and Xx. Xxxxx Xxxxxxxxxx ("Hogendoorn" or the "Consultant"), an
individual residing at 00000 Xxxxx Xxxxxx Xxxxx, Xxxxxx XX, X0X 0X0.
WHEREAS, the Company desires to retain Consultant to render consulting and
advisory services for the Company on the terms and conditions set forth in this
Agreement, and Consultant desires to be retained by the Company on such terms
and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
I. Retention of Consultant; Services to be Performed
The Company hereby retains Consultant to render such consulting services as
the Company may request, including but not limited to shareholder
communications, market and finance consultation, international finance
correspondence and any other duties as might be assigned by the Board of
Directors or the Chairman of the Board of Directors of the Company. Consultant
hereby accepts such engagement and agrees to perform such services for the
Company upon the terms and conditions set forth in this Agreement. Consultant
shall report as appropriate to Xxxxxxx Xxxx, Chairman of the Board of Directors
of the Company.
Consultant may be required at the Company's expense to render the
consulting services at such locations within and outside the United States,
Canada, and elsewhere as the Company may specify from time to time.
In rendering services hereunder, Consultant shall be acting as an
independent consultant and not as an employee or agent of the Company or any
related entity. As an independent consultant, Consultant shall have no
authority, express or implied, to commit or obligate the Company in any manner
whatsoever, except as specifically authorized from time to time in writing by an
authorized representative of the Company, which authorization may be general or
specific. Nothing contained in this Agreement shall be construed or applied to
create a partnership. Consultant will not be entitled to any of the benefits
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which Company may make available to its employees, such as group insurance,
profit sharing, or retirement benefits. Consultant shall be responsible for the
payment of all taxes and social charges payable with respect to all amounts paid
to Consultant under this Agreement; provided, however, that if the Company is
determined to be liable for collection and/or remittance of any such taxes,
Consultant shall immediately reimburse the Company for all such payments made by
the Company. Consultant is free to enter into any contract to provide services
to other business entities, except any contract which would induce Consultant to
violate this Agreement.
II. Term
Unless terminated at an earlier date in accordance with Section IX, this
Agreement shall commence as of the date first written above and shall continue
for a continuous period of one year to August 1, 2005 (the "Term"). Consultant
shall devote such time and attention as may be reasonably required to perform
the services required by this Agreement, provided, however, Consultant shall
provide to the Company in any calendar month a minimum of eighty (80) hours of
consulting services.
III. Compensation
As compensation in full for Consultant's services hereunder, the Company
shall pay to Consultant a consulting fee at the rate of $7,000.00 CAD per month.
The consulting fee shall be payable to Consultant in arrears at the end of each
calendar month during the Term.
In the event that Consultant becomes physically or mentally disabled such
that he is unable to adequately perform the services hereunder, the Company
shall not be obligated for the payment of any further compensation hereunder
until such disability has ceased and Consultant is able to resume his
responsibilities and duties hereunder, even though this Agreement has not been
terminated by the Company pursuant to Section IX(B).
Consultant and Company acknowledge and affirm that Consultant has
previously executed an Employment Agreement with NS8 Corporation, dated January
15, 2003 (attached hereto as Attachment A), and amended pursuant to the
Amendment to Principal Employment Agreement, effective January 7, 2004 (attached
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hereto as Attachment B) (together the "prior Agreement"). The parties agree and
acknowledge that by entering into this Agreement, that prior Agreement is
impliedly and explicitly deemed cancelled and void as of August 6, 2004 ("Date
of Cancellation"), except as set forth in Sections 7, 8, 9, and 10 below, and
that any sums which would have been due under that prior Agreement cease to
accrue as of that Date of Cancellation. The parties also agree that any accrued
sums due prior to the Date of Cancellation under those Agreements will be paid
on a pro rata basis at the discretion of the Board of Directors as such funds
become available.
IV. Expenses
The Company shall reimburse Consultant in accordance with the policies and
procedures that the Company establishes from time to time for all reasonable and
necessary out-of-pocket expenses that Consultant incurs in performing the
services hereunder, including, without limitation, pre-approved reasonable
business travel expenses incurred by Consultant.
V. INDEMNIFICATION
Consultant will indemnify and hold harmless the Company, its officers,
directors, employees, sublicensees, customers and agents from any and all
claims, losses, liabilities, damages, expenses and costs (including attorneys'
fees and court costs) which result from a breach or alleged breach of any
representation or warranty of Consultant (a "Claim"), provided that Company
gives Consultant written notice of any such Claim and Consultant has the right
to participate in the defense of any such Claim at his expense. From the date
of written notice from Company to Consultant of any such Claim, Company shall
have the right to withhold from any payments due Consultant under this Agreement
the amount of any defense costs, plus additional reasonable amounts as security
for Consultant's obligations under this Section V.
VI. Ownership of Intellectual Property
A. Notification and Disclosure
Consultant shall promptly notify the Company in writing of the existence
and nature of, and shall promptly and fully disclose to the Company, any and all
ideas, designs, practices, processes, apparatus, improvements and inventions
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(all of which are hereinafter referred to as "inventions") that Consultant has
conceived or first actually reduced to practice and/or may conceive or first
actually reduce to practice during the Term or which Consultant may conceive or
reduce to practice within six months after the Term, if such inventions relate
to a product or process upon which Consultant worked during the Term.
B. Ownership of Inventions
All such inventions shall be the sole and exclusive property of the Company
or its nominee during the Term and thereafter, and Consultant hereby assigns to
the Company all its right, title and interest in and to any and all such
inventions.
Whenever the Company so requests, Consultant shall execute and assign any
and all applications, assignments and other instruments that the Company shall
deem necessary or convenient in order to apply for and obtain Letters Patent of
the United States and/or of any foreign countries for such inventions and in
order to assign and convey to the Company or its nominee the sole and exclusive
right, title and interest in and to all such inventions.
Consultant shall aid and assist the Company in any interference or
litigation pertaining to such inventions, and the Company shall bear all
expenses reasonably incurred by Consultant at the request of the Company. In
this connection, if any such aid or assistance requires any expenditure of
Consultant's time after the Term, Consultant shall be entitled to compensation
for the time requested by the Company at a rate equal to the pro rata rate at
which Consultant was being paid for a normal pay period immediately prior to the
end of the Term.
C. Limitation
Sections VI(A) and (B) shall not apply to any invention meeting the
following conditions:
a) such invention was made without the use of any of the
equipment, supplies, facility or trade secret information of
the Company or its affiliates;
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b) such invention does not relate (a) directly to the business
of the Company or its affiliates (b) to the Company's or
such affiliates' actual or demonstrably anticipated research
or development; and
c) such invention does not result from any service performed by
Consultant for the Company or its affiliates.
D. Copyrightable Material
All right, title, and interest in all copyrightable material which
Consultant shall conceive or originate, either individually or jointly with
others, and which arise out of the performance of this Agreement, will be the
property of the Company and are hereby assigned to the Company along with
ownership of any and all copyrights in the copyrightable material. Consultant
agrees to execute all papers and perform all other acts necessary to assist the
Company to obtain and register copyrights on such materials in any and all
countries. Where applicable, works of authorship created by Consultant for the
Company in performing the services hereunder shall be considered "works made for
hire" as defined in the U.S. Copyright Act.
E. Survival
This Section VI shall survive the Term.
VII. Protection of Trade Secrets, Know-How and/or Other Confidential
Information of the Company
A. Confidential Information
Except as permitted or directed by the Chairman of the Board of Directors
of the Company, during the Term or at any time thereafter, Consultant shall not
divulge, furnish or make accessible to anyone or use in any way (other than in
the ordinary course of the business of the Company) any confidential or secret
knowledge or information of the Company that Consultant has acquired or become
acquainted with or will acquire or become acquainted with during the Term or
during engagement by any affiliated company prior to the Term, whether developed
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by Consultant or by others, concerning any trade secrets, confidential or secret
designs, processes, formulae, products or future products, plans, devices or
material (whether or not patented or patentable) directly or indirectly useful
in any aspect of the business of the Company or its affiliates, any customer or
supplier lists of the Company or its affiliates, any confidential or secret
development or research work of the Company or its affiliates, or any other
confidential information or secret aspects of the business of the Company or its
affiliates. Consultant acknowledges that the above-described knowledge or
information constitutes a unique and valuable asset of the Company acquired at
great time and expense by the Company and its predecessors, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. The foregoing obligations of confidentiality, however, shall not apply
to any knowledge or information which is now published or which subsequently
becomes generally publicly known in the form in which it was obtained from the
Company, other than as a direct or indirect result of the breach of this
Agreement by Consultant.
B. Know-How and Trade Secrets
All know-how and trade secret information conceived or originated by
Consultant, which arises out of the performance of the services hereunder, or
any related material or information shall be the property of the Company, and
all rights therein are hereby assigned to the Company.
C. Return of Records
Upon termination of this Agreement, Consultant shall deliver to the Company
all property that is in his possession and that is the Company's property or
relates to the Company's business, including, but not limited to records, notes,
data, memoranda, software, electronic information, models, equipment, and any
copies of the same. Consultant shall permanently delete all of his electronic
data containing such property.
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VIII. Covenants
A. Non-Competition
Consultants agrees that during the Term hereof and for a period of 24
months subsequent to any termination of this Agreement for any reason prior to
expiration of the full Term, Consultant will not directly or indirectly, whether
as a shareholder, partner, proprietor, employee, representative, consultant or
otherwise, serve or become or be interested in, any person or entity whatsoever
that is engaged in, and will not engage in for Consultant's own account, any
business, trade or occupation (i) that, produces, develops, sells and/or markets
anywhere in the United States or Canada, any product or service in competition
with any product or service offered or under research or development by the
Company or its affiliates at any time during the Term, or (ii) that plans or
intends to undertake, or is investigating the feasibility of undertaking, such
production, development, selling or marketing of any such product or service.
B. Non-Employment of Personnel
Consulting agrees that during the Term and for a period of 24 months
subsequent to any termination of this Agreement for any reason prior to
expiration of the full Term, Consultant will not, except upon the express prior
written consent of Company, directly or indirectly employ or seek or attempt to
employ in any capacity (whether as a full or part time employee or as a
consultant or contractor) any person who is or was an employee of Company or any
affiliated Company at any time during the period of this Agreement.
C. Enforcement
The harm to Company from a breach of Consultant's obligations under
Paragraphs A and B above may be difficult to determine and may be wholly or
partially irreparable. Consultant agrees that such obligations may be enforced
by injunctive relief and other appropriate remedies, as well as by damages.
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IX. Termination
A. For Cause.
The Company will have the right to immediately terminate Consultant's
services and this Agreement for Cause. "Cause" means: any breach of this
Agreement by Consultant, including, without limitation, breach of Employee's
covenants in Sections VI, VII, and VIII; any failure to perform assigned
responsibilities that continues unremedied for a period of thirty (30) days
after written notice to Consultant by Company; conviction of a felony or
misdemeanor or failure to contest prosecution for a felony or misdemeanor; the
Company's reasonable belief that Consultant engaged in a violation of any
statute, rule, regulation, or Company policy, any of which in the judgment of
Company is harmful to the Business or to Company's reputation; the Company's
reasonable belief that Consultant engaged in unethical practices, dishonesty or
disloyalty; or Company's failure to obtain or lack of funding sufficient to
support Consultant's position. Upon termination of Consultant's employment
hereunder for Cause or upon the death or disability of Consultant, Consultant
will have no rights to any fees or payments after the termination date or the
last day of the month in which Consultant's death or disability occurred. For
purposes of this Agreement, "disability" means the incapacity or inability of
Consultant, whether due to accident, sickness or otherwise, as determined by a
medical doctor acceptable to the Board of Directors of Company and confirmed in
writing by such doctor, to perform the essential functions of Consultant's
position under this Agreement, for an aggregate of ninety (90) days during any
period of one hundred eighty (180) consecutive days.
B. Without Cause.
Company may terminate its relationship with Consultant under this Agreement
without cause and without advance notice; provided, however, that Company will
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then provide to Consultant payment of any fees remaining due for fulfillment of
the Term. Such fees will be paid in installments at usual and customary pay
intervals of Company, and in payments equal to Consultant's regular
installments.
C. Termination By Consultant.
Consultant may terminate Consultant's relationship under this Agreement for
any reason provided that Consultant gives Company at least thirty (30) days'
notice in writing. Company may, at its option, accelerate such termination date
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to any date at least two weeks after Consultant's notice of termination of the
Agreement. Company may also, at its option, relieve Consultant of all duties
after notice of termination has been provided. All compensation will cease on
the termination date.
D. Termination By Consultant for Good Reason.
Consultant's relationship employment pursuant to this Agreement shall
terminate prior to the expiration of the Term in the event Consultant shall
determine that there is "Good Reason" to terminate his relationship, due to the
Company's material breach of the terms of this Agreement or any other written
agreement between Company and Consultant. Company shall have thirty (30) days to
cure any such alleged breach, after Consultant provides Company written notice
of the actions or omissions constituting such breach. Further, Consultant can at
any time provide written consent to any of the above events or occurrences and
therefore specifically waive his right to terminate this Agreement for Good
Reason.
E. Effect of Termination.
If Consultant terminates his relationship with the Company for Good Reason,
Consultant shall be paid any remaining fees through the date of termination, and
for any unreimbursed business expenses that are subject to reimbursement
pursuant to this Agreement.
X. Miscellaneous
A. Entire Agreement
This Agreement contains the entire understanding between the parties hereto
with respect to the subject matter hereof and supersedes any prior
understandings, agreements or representations, written or oral, relating to the
subject matter hereof; however, Consultant acknowledges and affirms that he has
previously executed an Employment Agreement with NS8 Corporation, dated January
15, 2003 (attached hereto as Attachment A), and amended pursuant to the
Amendment to Principal Employment Agreement, effective January 7, 2004 (attached
hereto as Attachment B) (together the "prior Agreement"), and that the terms and
conditions of said prior Agreement that survive the employment relationship are
not affected by, but are supplemented by, this Consulting Agreement, expressly
including without limitation the Covenant Not To Compete, Confidential
Information, Work Product and Copyrights, Inventions and Patents provisions
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thereof. The parties further acknowledge that Consultant has previously
executed a Principal Employment Agreement with Canonline Global Media, Inc., a
subsidiary of NS8 Corporation, dated January 15, 2003, and that the terms and
conditions of that Agreement specifically survive execution of this present
Agreement.
B. Severability
Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable
under any applicable law or rule, the validity, legality and enforceability of
the other provision of this Agreement will not be affected or impaired thereby.
C. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives and, to the
extent permitted by subsection (D), successors and assigns.
D. Assignment
This Agreement and the rights and obligations of the parties hereunder
shall not be assignable, in whole or in part, by either party without the prior
written consent of the other party.
E. Modification, Amendment, Waiver or Termination
No provision of this Agreement may be modified, amended, waived or
terminated except by an instrument in writing signed by the parties to this
Agreement. No course of dealing between the parties will modify, amend, waive
or terminate any provision of this Agreement or any rights or obligations of any
party under or by reason of this Agreement.
F. Notices
All notices, consents, requests, instructions, approvals or other
communications provided for herein shall be in writing and delivered by personal
delivery, overnight courier, mail, electronic facsimile or e-mail addressed to
the receiving party at the address set forth hereinabove. All such
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communications shall be effective when received.
Need address of where to send notices
Any party may change the address set forth above by notice to each other
party given as provided herein.
G. Governing Law
ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF MINNESOTA, USA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS
THEREOF AND THE PARTIES HEREBY EXPRESSLY WAIVE THE APPLICATION OF ANY OTHER LAW.
H. Third-Party Benefit
Nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights, remedies, obligations or liabilities of any nature
whatsoever.
I. No Waiver
No delay on the part of the Company in exercising any right hereunder shall
operate as a waiver of such right. No waiver, express or implied, by the
Company of any right or any breach by Consultant shall constitute a waiver of
any other right or breach by Consultant.
J. Jurisdiction and Venue
The parties submit to the non-exclusive jurisdiction of and venue in the
United States District Court for the District of Western Washington or the
Courts of King County, Washington, USA.
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K. Remedies
The parties agree that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may, in its
discretion, apply to any court of law or equity of competent jurisdiction for
specific performance and injunctive relief in order to enforce or prevent any
violations this Agreement, and any party against whom such proceeding is brought
hereby waives the claim or defense that such party has an adequate remedy at law
and agrees not to raise the defense that the other party has an adequate remedy
at law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth in the first Section.
NS8 CORPORATION, INC.
By:
----------------
Name:
Title:
/s/ XXXXX XXXXXXXXXX
---------------------
XXXXX XXXXXXXXXX
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AMENDMENT TO CONSULTING AGREEMENT
THIS AMENDMENT TO CONSULTING AGREEMENT ("Amendment"), effective February 1,
2005 ("Effective Date"), is made between NS8 Corporation, a Delaware corporation
("Company"), and Xxxxx Xxxxxxxxxx ("Consultant") (together referred to herein as
the "Parties").
WHEREAS the Parties acknowledge and affirm that Consultant has previously
executed a Consulting Agreement with the Company, dated November 1, 2004
(attached hereto as Attachment A) (the "Prior Agreement").
AND WHEREAS the Parties acknowledge and affirm that the Consultant
previously held the positions of Chief Executive Officer and Director on the
Board of Directors and in such positions, was privy to confidential information
of the Company.
NOW THEREFORE in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the Parties agree to amend Section VIII of the Prior
Agreement as follows:
A. Section VIII of the Prior Agreement is hereby amended by adding the
following as Section VIII:
"VIII. COVENANTS. During the term of the Consultant's engagement by
the Company pursuant to this Consulting Agreement, Consultant covenants and
agrees that Consultant:"
B. Section VIII of the Prior Agreement is hereby amended by deleting
Paragraph A of Section VIII in its entirety and replacing it with the following
as Paragraph A of Section VIII:
A. Non-Competition
"A(i). Will not, directly, indirectly or otherwise, own, manage, operate,
control, be employed by, participate in, or be connected, in any
manner, with the ownership, management, operation or control of any
business that competes with the Business or that competes with the
Company or any of its affiliates or that is engaged in any type of
business which, at any time during Consultant's engagement as a
consultant to the Company or during his employment with the Company or
any of its affiliates, the Company planned to develop.
A(ii). Will not, directly, indirectly or otherwise, serve as a consultant
to any business that competes with the Business or that competes with
the Company or any of its affiliates or that is engaged in any type of
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business which, at any time during Consultant's engagement as a
consultant to the Company or during his employment with the Company or
any of its affiliates, the Company planned to develop.
A(iii). Notwithstanding the foregoing, upon termination of Consultant's
employment by the Company, Consultant may serve as a consultant to any
business that competes with the Business or that competes with the
Company or any of its affiliates or that is engaged in any type of
business which, at any time during Consultant's engagement as a
consultant to the Company or during his employment with the Company or
any of its affiliates, the Company planned to develop."
All of the terms, provisos and conditions of this Addendum are hereby
incorporated into the Prior Agreement by reference and shall form a part thereof
for all purposes.
IN WITNESS WHEREOF, the Parties have duly signed and delivered this Addendum as
of the day and year first written above.
NS8 CORPORATION
By: _____________________________
Name:
Title:
CONSULTANT
/s/ Xxxxx Xxxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxxx
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