CONSULTING AGREEMENT
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This Consulting Agreement (Agreement) is made and entered into this 6th day
of January, 2002, by and between Computone Corporation, a Delaware Corporation
(The Company) and R. Xxxxxxx XxXxxxx and Worldtech Waste Management, Inc., a
Nevada Corporation (collectively, the Consultant), with reference to the
following facts:
A. Consultant possesses special skills, knowledge and qualifications
beneficial to the business of the Company.
B. The parties hereto desire to enter into an Agreement under which
Consultant will provide services to the Company.
C. The parties intend that Consultant shall be an independent contractor
with the Company under this Agreement and not an employee of the Company.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Engagement and Term. The Company hereby engages the services of the
Consultant and the Consultant accepts such engagement on the terms and
conditions set forth herein for a term commencing on January 1, 2002 and
terminating on December 31, 2002.
2. Duties. Consultant shall be engaged to provide consulting services for
the Company with respect to the conduct of its business affairs. Such duties
shall consist of the rendering of advice upon request in connection with
relations between the Company and any outside professionals; and relations
between the Company and its shareholders and investors. Consultant shall perform
such other duties pertaining to the Company's business as the Company and
Consultant shall from time to time mutually agree.
3. Nature of Services. Consultant agrees to perform diligently and to the
best of his talents, skills and expertise, all services which he is required to
perform under this Agreement and to devote such productive time thereto as
Consultant reasonably determines to be necessary and appropriate to fulfill
Consultant's obligations hereunder. Consultant shall not delegate the
performance of any such services to any other person, firm or corporation
without the prior written consent of the Company. Consultant shall have the
right to engage in any other gainful activities and businesses in his sole and
absolute discretion, provided that Consultant hereby agrees that he shall not
engage in any activities or businesses which conflict or compete with the
activities and business of the Company. Consultant's services hereunder need not
be performed at the Company's offices.
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4. Compensation. The Company shall pay to Consultant or, at Consultant's
direction to Worldtech Waste Management, Inc., and Consultant agrees to accept
as payment in full for all services rendered by him to the Company during each
year of the term hereof as compensation 120,000 shares of restricted common
stock (with piggy-back registration rights) payable as follows: 10,000 shares on
or before the first of each month following the most recent month of service.
The Company shall have the right to terminate this Agreement in the event of the
sale of the business of the company either through stock sale, asset sale,
merger, and reorganization or equivalent transaction. In such event, the Company
shall pay Consultant the pro rata value of the compensation which would have
been payable for the balance of the term of this Agreement.
5. Expenses and Taxes. The Consultant shall be solely responsible for all
out-of-pocket expenses incurred by Consultant in the performance of his duties
hereunder. Additionally, the Consultant shall be responsible for his income tax
liability consistent with his status as an independent contractor.
6. Confidential Relationship Created by Agreement. Consultant
acknowledges and agrees that this agreement creates a relationship of confidence
and trust on the part of Consultant for the benefit of the Company. During the
term of this agreement, Consultant may be responsible, in whole or in part, for
the creation of, or may acquire certain "Confidential Information" (as
herein-after defined) from or regarding the Company's employees, agents, and
representatives or documents, or otherwise as a result of performing the
services of Consultant hereunder. Consultant acknowledges and agrees that the
Company would not have entered into this Agreement unless the Company were
assured that all such confidential information would be held in confidence by
Consultant, in trust for the sole benefit of the Company, and according to the
terms set forth in this paragraph 6.
During the term of this Agreement and at all times thereafter, Consultant
shall keep all of he Confidential Information in confidence and shall not
disclose any of the same to any other person, except the Company's personnel
entitled thereto and other persons designated in writing by the Company.
Consultant shall not cause, suffer or permit the Confidential Information to be
used for the gain or benefit of any party outside of the company or for
Consultant's personal gain or benefit outside the scope of Consultant's
engagement by the company.
The term "Confidential Information", as used herein, means all information
or material not generally known by non-company personnel which (a) gives the
Company some competitive business advantage or the opportunity of obtaining such
advantage or the disclosure of which could be detrimental to the interests of
the Company; (b) which is owned by he Company or in which the Company has an
interest and (c) which is either (i) marked "Confidential Information,"
"Proprietary Information" or other similar marking, (ii) known by the Consultant
to be considered confidential and proprietary by the Company or (iii) from all
the relevant circumstances should reasonably be assumed by Consultant to be
confidential and proprietary to the Company. Confidential Information includes,
but is not limited to, the following types of information and other information
of a similar nature (whether or not reduced to writing): trade secrets,
inventions, drawings, file data, documentation, diagrams, specifications, know
how, processes, formulas, models, flow charts, software in various stages of
development, source codes, object codes, research and development procedures,
research or development and test results, marketing techniques and materials,
marketing and development plans, price lists, pricing
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policies, business plans, information relating to customers and/or suppliers'
identities, characteristics and agreements, financial information and
projections, and employee files. Confidential Information also includes any
information described above which the Company obtains from another party and
which the Company treats as proprietary or designates as confidential
information, whether or not owned or developed by the Company. NOTWITHSTANDING
THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS
GENERIC INFORMATION OR GENERAL KNOWLEDGE WHICH CONSULTANT WOULD HAVE LEARNED IN
THE COURSE OF PERFORMING SIMILAR CONSULTING SERVICES ELSEWHERE IN THE TRADE OR
IF IT IS OTHERWISE PUBLICLY KNOWN AND IN THE PUBLIC DOMAIN.
Consultant agrees not to make any written use of or reference to the
Company's name for any marketing, public relations, advertising, display or
other business purpose or make any use of the Company's facilities for any
activity unrelated to the express business purposes and interests of the Company
under this Agreement, without the prior consent of the Company, which consent
may be withheld or granted in the Company's sole and absolute discretion.
Consultant acknowledges and agrees that the remedy at law for the breach of
any provision of this Paragraph 6 may be inadequate and that the Company shall
be entitled to injunctive relief without bond, in addition to any other rights
or remedies which the Company may have for such breach.
Consultant agrees that the obligations, covenants and agreements of
consultant and the rights of the Company as set forth in this paragraph 6 shall
survive any termination expiration of this agreement.
7. No Conflicting Agreements. Consultant warrants and represents that
there are no agreements to which he is a party, which would prevent his timely
and complete performance of the terms and, conditions of this agreement, and
Consultant agrees not to enter into any such agreement during the term of this
Agreement.
8. Indemnification. Each party, (Indemnifying Party) agrees to indemnify
and hold harmless the other party (Indemnified Party) and each of the
Indemnified Party's directors, officers, agents, employees, and controlling
persons against any losses, claims, damages, or liabilities related to or
arising out of any actions or omissions committed by the Indemnifying Party
hereunder (including any violations of applicable federal and state securities
laws). The provisions of this section shall survive any termination of this
Agreement and shall be binding upon any successors or assigns of the Company.
9. Notice. All notices or demands of any kind which either party hereto
may be required or desires to serve upon the other party under the terms of this
Agreement shall be in writing and shall be served upon such other party by
personal delivery upon such other party or by leaving a copy of said notice or
demand, addressed to such other party at the address set forth below, whereupon
service shall be deemed completed, or by mailing a copy thereof by certified or
registered mail, postage prepaid with return receipt requested, to the
appropriate address set forth below.
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If to Consultant:
R. Xxxxxxx XxXxxxx
000 Xxx Xxxx
Xxxxxxxx, XX 00000
If to the Company:
Computone Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
In the case of service by mail, it shall be deemed complete at the
expiration of the third day after the date of mailing. The addresses to which
notices and demands shall be delivered or sent may be changed from time to time
by notice served as hereinabove provided.
10. Attorneys' Fees. In the event of any action or proceeding between the
parties hereto to enforce any provision or right hereunder, the unsuccessful
party to such action or proceeding agrees to pay the successful party all costs
and expenses, including but not limited to, actual attorneys' fees incurred
therein by such successful party, which costs, expenses and attorneys' fees
shall be included in and as a part of any judgment or award rendered in such
action or proceeding.
11. Relationship and Authority. The relationship between the Company and
Consultant intended to be created by this agreement is that of independent
contractor and nothing herein contained shall be construed as creating a
relationship of employer and employee or principal and agent between the parties
hereto. Consultant agrees that he shall neither act nor make any representation
that he is authorized to act as an agent or officer of the Company.
12. Assignment. The services to be rendered and the duties to be performed
by Consultant hereunder are of a unique and personal nature. Nothing contained
in this agreement shall be construed to permit assignment by consultant of any
right or obligation under this agreement and any such assignment is expressly
prohibited except Consultant may direct the Company to issue any portion of his
compensation to Designee.
13. Paragraph Headings. The headings of the several paragraphs of this
agreement are inserted solely for convenience of reference and are not part of
and are not intended to govern, limit or aid in the construction of any term or
provision hereof.
14. Entire Agreement. This Agreement is intended to constitute the final,
entire, complete and exclusive agreement between the parties hereto pertaining
to the subject matter hereof, and expressly supersedes all prior written and
oral agreements and understandings between the parties hereto with respect to
the subject matter hereof.
15. Engagement at Will. Either Company or Consultant shall deem any
continuance of Consultant's engagement by Company and Consultant after
expiration of the term of this Agreement an engagement at will and shall be
subject to termination with or without cause upon delivery of notice thereof to
the other party. Any such continuance of engagement shall be upon the terms and
conditions as set forth herein or as otherwise mutually agreed between the
parties.
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16. Waiver; Modification. No provision of this Agreement may be amended or
modified, or the termination or discharge thereof agreed to or acknowledged
orally, but such may be accomplished only by an agreement in writing signed by
the party against whom the enforcement of any such waiver, amendment,
modification, termination or discharge is sought.
17. Severability. The provisions of this Agreement are severable, and in
the event that any provision is declared invalid, this Agreement shall be
interpreted as if such invalid provision were not contained herein.
18. Applicable Law. This Agreement shall constitute a contract under the
laws of the State of Texas and shall be governed and construed in accordance
with the laws of said state.
19. Execution of Documents. The Company and Consultant shall, whenever and
as often as reasonably requested to do so by any other party, execute,
acknowledge and deliver or cause to be executed, acknowledged or delivered, any
and all agreements and instruments as may be necessary, expedient or proper in
the opinion of the requesting party to carry out the intent and purposes of this
Agreement
20. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same agreement.
INTENDING TO BE LEGALLY BOUND, the parties hereto have executed the
agreement as of the day and year first set forth above.
"CONSULTANT"
/s/ R. Xxxxxxx XxXxxxx
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R. Xxxxxxx XxXxxxx
"COMPANY"
Computone Corporation.
/s/ E. Xxx Xxxxxx
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E. Xxx Xxxxxx
Its: Chief Executive Officer
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