CONSULTING AGREEMENT
Exhibit
10.27
This
Consulting Agreement (the "Agreement') is dated as of May 10, 2007 (the
"Effective Date") by and between XXXXXXX
TECHNOLOGIES CORP., a
Delaware corporation (the "Company"), and XXXXXXXX
X. XXXXX ("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 foregoing premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Consultant
hereby agree as
follows:
1.
Services.
Company
hereby engages and Consultant agrees to serve the Company as an independent
contractor providing business development, financial consulting, investor
relations, strategic planning,
and other valuable services to the Company. Consultant acknowledges and agrees
that he shall be
an
independent contractor and shall not be an "employee" of the Company for any
purpose. Consultant acknowledges that he shall provide his own welfare benefits
and that the Company shall not provide any welfare
benefits to Consultant. Consultant shall be solely responsible for the payment
of all foreign, federal,
state and local sales taxes, use taxes, value added tax, withholding taxes,
income tax, unemployment
and workers' compensation insurance premiums, and similar taxes and charges
of
any kind
with
respect to his compensation and the services provided under this
Agreement.
2.
Terms
and Termination. The
term
of this Agreement shall begin on the Effective Date and
terminate one year after the Effective Date; provided, however, that this
Agreement may be terminated
at any time by either party upon thirty days' written notice to the other
party.
3. Compensation.
In
consideration of the services to be rendered by the Consultant during
the
term
hereof, the Company shall pay Consultant:
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(a)
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An
initial payment of $75,000, which shall be payable within 3 business
days
of the Company's receipt of the proceeds from the completion after
the
Effective Date of one or more financing transactions in which aggregate
proceeds are no less than $250,000 (the "First Financing");
and
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(b)
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An
additional payment of $75,000, which shall be payable within 3 business
days of the Company's
receipt of the proceeds from the completion of one or more subsequent
financing
transactions in which, together with the First Financing, aggregate
proceeds to the Company are at least $500,000 (a "Subsequent Financing,"
and together with the First Financing, the "Financing
Transactions").
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Consultant
acknowledges that the Company shall not have any obligation to compensate
Consultant under this Agreement unless and until the receipt by the Company
of
the funds from each of the Financing Transactions.
4.
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 under circumstances in which it is
reasonably foreseeable
that such person is likely to purchase or sell such securities.
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5.
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 time 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.
6. 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.
7. 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
he
is not restricted or prohibited, contractually or otherwise, from entering
into
and performing this Agreement, and that his 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.
8. Indemnification
by Consultant. Consultant
agrees to indemnify, defend, and shall hold harmless
the Company, its subsidiaries, directors, officers, employees and agents, from
and against any and
all
claims, demands, causes of action, debts or liabilities, including reasonable
attorneys' fees (collectively,
"Damages"), to the extent that any such Damages is based upon or arises out
of
(i) a breach of
any of
Consultant's representations and warranties contained herein, (ii) the gross
negligence or willful misconduct of Consultant, or (iii) a violation of any
federal or state laws by Consultant.
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9. 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.
10. 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.
11. 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.
12. Entire
Agreement; Amendment. This
Agreement supersedes any and all 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 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.
13. Governing
Law. This
Agreement will be governed and construed in accordance with the laws of Omaha,
Nebraska, without resort to the conflict of law principles thereof. Any lawsuit
brought to enforce or interpret this Agreement must be filed and prosecuted
in
the state court (or federal court if the requirements
of federal jurisdiction are met), as the case may be, sitting in Xxxxxxx County,
Nebraska, and
each
of the parties hereby voluntarily submits to the jurisdiction of such court
for
such purpose and hereby voluntarily waives any defense or objection to the
exercise of such jurisdiction by any such court.
14. 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 mail 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.
15. Third
Party Beneficiary. No
person, firm, group or corporation is a third party beneficiary
of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed the Agreement as of
the
date
first mentioned above.
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COMPANY:
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XXXXXXX
TECHNOLOGIES CORP.
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By:
/s/ XX X'Xxxxx
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Name:
XX X'Xxxxx
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Title:
Acting COO
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Address:
0000 X. 000xx Xxxxxx
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Xxxxx,
XX 00000
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CONSULTANT:
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/s/
Xxxxxxxx X. Xxxxx
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XXXXXXXX
X. XXXXX
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Address:
000 Xxxxxxxxx Xxxxx
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Xxxxxx,
XX 00000
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