EXHIBIT 10.30
BUSINESS CONSULTANT SERVICES AGREEMENT
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This Agreement (this "Agreement") is entered into and effective as of
September 23, 2005 (the "Effective Date") by and between BigString Corporation,
a company incorporated under the laws of the State of Delaware, having its
principal office at 0000 Xxxxxxx 00, Xxx Xxxx, XX 00000 (the "Company"), and
Xxxxxx Associates, Inc., having its principal place of business at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, XX 00000 (the "Consultant").
RECITALS:
WHEREAS, the parties are entering into this Agreement to set forth and
confirm their respective rights and obligations with respect to the retention of
the Consultant by the Company;
NOW, THEREFORE, in consideration of the mutual covenants herein described,
the parties hereto mutually agree as follows:
1. SCOPE OF SERVICES TO BE PROVIDED. The Company hereby retains the
Consultant to provide from its office at the address specified above, or such
other location as is chosen by the Consultant, general business consulting
services regarding all aspects of the Company's business, including, but not
limited to, management, accounting, product development, product enhancement,
marketing, sales, advertising, employment of others, day-to-day operations,
business development, business growth, and general business and administrative
procedures and processes (the "Services"). The Consultant has advised the
Company that tax and/or legal advice is specifically excluded from the scope of
the Services the Consultant will provide to the Company under this Agreement.
The Consultant will not, without specific approval of the Company's President
and Chief Executive Officer, contractually obligate the Company to do or refrain
from any act.
2. DUTIES. The Consultant hereby agrees to devote such time, attention,
skills and efforts to the provision of the Services to be provided hereunder as
may be mutually agreed upon by the parties from time to time. Notwithstanding
the foregoing, the Company acknowledges that the Consultant has other business
interests and hereby consents to the continuation of those interests and
relationships.
3. TERM. The term of this Agreement will commence on the Effective Date
and continue for a period of one (1) year from the Effective Date.
4. COMPENSATION.
4.1. Cash Retainer. As partial consideration for the Services to be
provided by the Consultant to the Company hereunder during the term of this
Agreement, the Company shall pay to the Consultant on the Effective Date, a
non-refundable retainer fee of $25,000 (the "Retainer Fee"). The Consultant
shall be entitled to retain the Retainer Fee irrespective of whether the Company
has required the Consultant to perform sufficient Services during the term of
this Agreement to account for the retainer. The Consultant shall invoice and
account to the Company on a monthly basis for the Services provided by Xxxx
Xxxxxx at an hourly rate of $175 per hour. If the services of other
representatives of the Consultant are required by the Company,
then those representatives will be invoiced and accounted to the Company on a
monthly basis at $100 per hour. The $25,000 Retainer Fee will be applied toward
monthly invoices until the $25,000 amount is fully used or the earlier
termination or expiration of this Agreement. Any monies owed to the Consultant
which exceed the amount of the Retainer Fee shall be paid promptly after the
receipt of the Consultant's invoice. The parties may mutually agree on a flat
fee on major projects to be worked on by the Consultant.
4.2. Warrants to Purchase Shares of the Company's Common Stock and
Registration of Such Shares. Contemporaneously with the execution of this
Agreement by the parties hereto, the Company shall grant to the Consultant a
fully-vested Warrant to purchase 1,246,707 shares of the Company's common stock,
par value $.0001 per share ("Common Stock"), at an exercise price of $.16 per
share ("Warrant 1"). A copy of the form of Warrant 1 is annexed hereto as
Appendix A. In addition, contemporaneously with the execution of this Agreement
by the parties hereto, the Company shall grant to the Consultant a fully-vested
Warrant to purchase 1,196,838 shares of Common Stock at an exercise price of
$.20 per share ("Warrant 2"). A copy of the form of Warrant 2 is annexed hereto
as Appendix B. The Company has agreed to take all action reasonably necessary
for the inclusion of the shares of Common Stock underlying Warrant 1 and Warrant
2 in the Company's Registration Statement on Form SB-2 that was filed with the
Securities and Exchange Commission on August 29, 2005 (the "Registration
Statement"). If deemed necessary by the parties, the Consultant and the Company
will enter into a mutually agreeable registration rights agreement regarding the
registration of the shares of Common Stock underlying Warrant 1 and Warrant 2
under the Registration Statement. The Company undertakes to maintain a current
registration statement for a period of at least two years and to file all
necessary amendments with the Securities and Exchange Commission.
4.3. Other Business Services. This Agreement covers a vast array of
management and other business advisory services. In the event that the
Consultant introduces the Company to one or more persons or entities that result
in increased revenues, decreased expenses and/or other benefits to the Company,
the parties will mutually agree upon the consideration to be paid to the
Consultant pursuant to a separate agreement.
5. EXPENSES. The Company will promptly reimburse the Consultant in
accordance with the Company's policies and practices for all expenses reasonably
incurred by the Consultant in performance of the Consultant's duties under this
Agreement. All expenses shall be pre-approved in writing by the Company.
6. TERMINATION. Any party may terminate this Agreement at any time with
five (5) days prior written notice. If terminated, the Consultant shall retain
Warrants 1 and 2 and any unused portion of the Retainer Fee, and all
reimbursable expenses shall be paid immediately by the Company.
7. PRESERVATION OF CERTAIN PROVISIONS. Notwithstanding any of the other
provisions of this Agreement to the contrary, Sections 8 through 16 hereof shall
survive the termination of this Agreement as necessary to give full enforcement
of all of the provisions of this Agreement.
8. AGENCY. It is understood and agreed that the Consultant is an
independent contractor in respect to the Consultant's relationship to the
Company, and that neither the
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Consultant nor any of its representatives is nor should be considered an agent
or employee of the Company for any purpose. The Consultant agrees not to
represent itself as an agent or employee of the Company at any time.
Nothing in this Agreement will be construed or implied to create a
relationship of partners, agency, joint venturers, or of employer and employee
between the Consultant, or any of its representatives, and the Company.
9. INDEPENDENT CONTRACTOR STATUS. The Consultant will have full control
and discretion as to the ways and means of performing any and all of the
Services to be provided under this Agreement. It is understood by the parties
that in the performance of this Agreement, none of the representatives of the
Consultant is in any way acting as an employee of the Company and at all times
the Consultant shall be acting as an independent contractor. The Company shall
not pay any contribution to social security, unemployment insurance or federal
or state withholding taxes, nor provide any other contributions or benefits
which might be expected in an employer/employee relationship. The Consultant
agrees to report and pay any contributions for taxes, unemployment insurance,
social security and any other costs applicable to it or its representatives.
As an independent contractor, the Consultant agrees that the Company has
no obligation under the state or federal laws regarding employee liability, and
that the Company's total commitment and liability under this arrangement is the
performance and the fees limited as described herein.
10. CONFIDENTIAL INFORMATION. The Consultant recognizes and acknowledges
that it will have access to certain information of the Company which is
confidential, including, but not limited to, financial, personnel, sales,
scientific, technical and other information regarding formulas, patterns,
compilations, programs, devices, methods, techniques, operations, trade secrets,
plans and processes that are owned by or licensed to the Company, and that such
information constitutes the Company's "Confidential Information."
The Consultant agrees that the Company has a legitimate interest in
protecting the Confidential Information. The parties agree that the Company is
entitled to protection of its interests and the Consultant shall at no time,
either during or subsequent to the term of this Agreement, disclose to others
any Confidential Information without the prior consent of the Company, and the
Consultant agrees to execute a Confidentiality/Non-Disclosure Agreement if so
requested by the Company.
The Company will own any and all Confidential Information, inventions or
other proprietary rights created or discovered by the Consultant or its
representatives in connection with the Consultant's performance of its duties
under this Agreement. The Consultant agrees to cooperate with Company in
executing any documents necessary to convey or establish title in such
Confidential Information, inventions or other proprietary rights to the Company.
The Consultant specifically agrees that it will not misuse,
misappropriate, or disclose in writing, orally, or by electronic means, any
trade secrets, directly or indirectly, to any other person or use them in any
way, either during the term of this Agreement, or at any other time thereafter,
except as is (a) required in the course of the Consultant's engagement, and (b)
pre-approved by the Company.
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The Consultant acknowledges and agrees that the sale or unauthorized use
or disclosure in writing, orally or by electronic means, of any of the Company's
trade secrets obtained by the Consultant during the course of the Consultant's
engagement under this Agreement, including information concerning the Company's
actual or potential work, services or products, or that any such work, services
or products are planned, under consideration or in production, as well as any
descriptions thereof, constitute unfair competition. The Consultant promises and
agrees not to engage in any unfair competition with the Company, either during
the term of this Agreement or at any time thereafter.
The restrictions against disclosure and/or use of Confidential Information
does not apply to information which the Consultant can demonstrate was at the
time of the execution of this Agreement:
(a) in the public domain; or
(b) part of the Consultant's prior knowledge; or
(c) learned from a third party without the breach of a confidential
relationship between the third party and the Company.
The Consultant agrees that all files, records, documents, drawings,
specifications, equipment, software and similar items, whether maintained in
hard copy or in electronic form, relating to the Company's business, whether
prepared by the Consultant or others, are and will remain exclusively the
property of the Company and that they will not be removed from the Company's
premises or, if kept in electronic form, from the Company's computer systems,
without the express prior written consent of the Company's President and Chief
Executive Officer.
11. DELIVERY OF DOCUMENTS UPON TERMINATION. The Consultant shall deliver
to the Company at the termination of its services copies of all of the Company
documents, materials and information in its possession at time of termination.
12. INDEMNIFICATION. The Company shall indemnify, defend and hold harmless
the Consultant and its officers, directors, employees and representatives from
and against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, reasonable attorney's fees and costs, that the
Consultant or any officer, director, employee or representative thereof shall
incur or suffer, which arise out of, result from, or relate to the performance
by the Consultant of the Services to be provided hereunder or in any way relate
to this Agreement; provided, however, that the Company shall not be required to
indemnify the Consultant or any of its officers, directors, employees or
representatives for any damages suffered by the Consultant or any such officer,
director, employee or representative as a result of the Consultant's gross
negligence or unlawful or fraudulent conduct in performing the Services to be
provided hereunder.
The Consultant agrees to indemnify the Company against all federal, state,
and local tax liability (including penalties and interest) which may result from
any federal, state, or local tax audit (including, but not limited to, income,
social security, disability, and unemployment taxes) that deems the Consultant
to be an employee rather than an independent contractor of the Company.
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13. AGREEMENT BINDING ON SUCCESSORS. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
to expressly assume and agree in writing to perform this Agreement in the manner
and to the same extent that the Company would be required to perform if no such
succession had taken place. As used in the Agreement, "Company" shall mean the
Company herein before defined and any successor to its business or assets
aforementioned which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
14. ASSIGNMENT. The Company may not assign this Agreement, except to the
acquiror of all or substantially all of the business assets of the Company;
provided that such acquiror expressly assumes and agrees in writing to perform
this Agreement as provided in Section 13 of this Agreement. The Consultant may
not assign its rights or delegate its duties or obligations under this
Agreement.
15. NOTICE. Any notices or other communication required hereunder shall be
in writing and shall be deemed to have been delivered or given (a) when hand
delivered, (b) one (1) business day after being sent by fax (confirmed by mail)
or sent by overnight courier, and (c) five (5) days after being mailed by
registered or certified mail, postage prepaid, return receipt requested, to the
party to whom such communication was given at the address set forth on page 1,
which address may be changed by notice given in accordance with this Section.
16. MISCELLANEOUS.
16.1. Severability. If any provision of the Agreement shall be held to
be invalid or unenforceable, in whole or in part, such invalid or
unenforceability shall not affect the remaining provisions of this Agreement,
which shall remain in full force and effect.
16.2. No Oral Modification, Waiver, or Discharge. No provision to this
Agreement may be modified, waived or discharged orally, but only by waiver,
modification or discharge in writing signed by an authorized representative of
the Consultant and such officer as may be designated by the Board of Directors
of the Company to execute such a waiver, modification or discharge.
16.3. Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, the parties hereby agree
that the portion deemed invalid, enforceable or void shall, if possible, be
reduced in scope, or otherwise be stricken from this Agreement to the extent
required for the purpose of validity and enforcement thereof.
16.4. Entire Agreement. This Agreement represents the entire agreement
of the parties with respect to the subject matter hereof and shall supersede all
previous contracts, arrangements or understandings, express or implied, between
the Consultant and the Company with respect to the subject matter hereof.
16.5. Execution in Counterparts. The parties may sign this Agreement
in counterparts, all of which shall be considered one and the same instrument.
16.6. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New Jersey
without application of its conflict of laws rules. The parties hereby submit to
the exclusive jurisdiction
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and venue of the courts of the State of New Jersey or the United States District
Court for the District of New Jersey for purposes of any legal action.
16.7. Headings. The section headings herein are for convenience only
and shall not affect the interpretation or construction of this Agreement.
16.8. Further Assurances. Each party shall cooperate with and take
such action as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement.
The parties hereby execute this Agreement as of the Effective Date.
COMPANY: CONSULTANT:
BIGSTR1NG CORPORATION XXXXXX ASSOCIATES ,INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxx Xxxxxx
Title: President and Chief Executive Officer Title: Managing Director
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