CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 26 day of
October 2001 (the "Effective Date") by and between Xxxxx X. German ("German" or
"Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Ire., (the "Company"), a
Colorado corporation, D.B.A. novahead, inc. and any of its successor
corporations acquired or merged with any other company.
The Company desires to engage German subject to the terms and conditions of
this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agree to hold
themselves available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services rendered to the Company's management shall
include but not be limited to (a) advice concerning the corporate planning and
development of the Company, and or (b) assistance in marketing and promotions of
any or all products of the Company; (c) other bona fide services.
2. TERM
The term of this Agreement ("Term") as to the consulting services shall begin as
of the Effective Date and shall terminate two (2) year thereafter. Any change
herein is only by mcttal agreement and negotiated, therefore agreed to in
writing by the parties hereto.
3. COMPENSATION
A. WARRANTS
Each Consultant or his nominees) shall receive compensation in the form of
a Warrant to purchase two hundred & fifty thousand (250,000) shares of the
Company's Common Stock (the "Warrants'). The Warrants shall be exercisable
at a price of $0.50 per Share. The Warrants shall be deemed exercisable
immediately after the Company has received a trading symbol and is publicly
trading on any exchange. Further, the Warrants shall be deemed exercisable
if the Company becomes a public company through a merger to another public
trading company, or is acquired by a public corporation or by transfer of
assets through a sale, or by an Initial Public Offering, "IPO".
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the OTC Bulletin Board, it will register the shares underlying
the Warrant according to Federal haw with the Securities and Exchange
Commission.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant are acting as independent contractors in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might lx expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services far, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of each
Consultant. Consultant Strand shall therefore not voluntarily or bay operation
of law assign or otherwise transfer the obligations incurred on its part
pursuant to the terms of this Agreement without the prior written consent of the
Company. Any attempt at assignment or transfer by Consultant of its obligations
without such consent shall be wholly void. This Agreement shall be binding upon
and inure to the benefit of the successors-in- interest, assignees and personal
representatives of the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
its representatives with certain Confidential Information (as defined below). In
consideration of the Company Publishing (prior to and subsequent to the date
hereof) such Confidential Information, Consultant agree as follows:
(a) Confidential Information. Confidential Information means any and all
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to
Consultant, its agents or representatives, together with analyses,
compilations, forecasts, studies or other documents prepared by the
Company, its agents, representatives (including lawyers, accountants
and financial advisors) or employees which captain or otherwise
reflect the foregoing described information, as well as any oral
communications with respect to the foregoing.
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, its agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant do not know
they are prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
xxx be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agree to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
termination of this Agreement all: copies of the Confidential
Information, except far that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees and oral Confidential Information
may be retained by Consultant and kept confidential and subject to the
terms of this Confidentiality Agreement or destroyed upon the request
of the Company. Such destruction will be confirmed in writing to the
Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. :(n the event that Consultant or anyone to whom they
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled: to disclose any of the
Confidential Information or any information relating to Consultant's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Consultant will provide
the Company with prompt notice so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of its
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information. In arty event, neither
Consultant nor anyone to whom it transmits the Confidential
Information pursuant to this Confidentiality Agreement will oppose
action by the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded
the Confidential Information.
(f) Enforcement. Consultant acknowledge that remedies at law may be
inadequate to protect against breach of this Confidentiality
provision, and they hereby in advance agree to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available; at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or its directors, officers, partners, employees, agents or
advisers have breached this Confidentiality provision then it shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom.
(g) Reciprocal Nature. of Section 7. In the event Consultant provide
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
------- -------
CONSULTANT Xxxxx X. German
0000 X. 00" Xxxxxx
Xxxxxxx, XX. 00000
COMPANY
Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx -- Xxxxx, Inc.
D.B.A, novahead, inc.
0000 X. Xxxxxxxx, Xxx 000
Xxxxxxx, XX 00000
All such notices and communication shall be, deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the fall and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this
Agreement may be changed or amended only by an amendment in writing signed by
both of the Parties or his respective successors-in-interest.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform his obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in his
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
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IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
XXXXXXXXXXX - XXXXX, TNC.
By:/s/Xxxxxx X. Xxxxxxx
-----------------------
XXXXXX X. XXXXXXX, CHIEF ECECUTIVE OFFICER
CONSULTANT
XXXXX X. XXXXX
BY /s/Xxxxx X. German
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XXXXX X. GERMAN
