EXHIBIT 99.9
CONSULTANT AGREEMENT
CONSULTANT AGREEMENT (this "AGREEMENT") dated as of January 3, 2005,
and with an effective date of January 1, 2004 ("EFFECTIVE DATE") between
Xxxxxxxx Technology, Inc. (including, as the context may require, its
subsidiaries, the "COMPANY"), a Florida corporation, and Verdi Consulting, (the
"CONSULTANT"), located in East Xxxxxxxxx, Xxxxx Xxxxxx, 00000.
WHEREAS, the Company and Consultant had previously entered into an
employment agreement dated May 12, 2004 (the "PRIOR AGREEMENT"); and
WHEREAS, the Company wishes to employ the CONSULTANT to render services
for the Company on the terms and conditions set forth in this Agreement, and the
Consultant wishes to be retained and employed by the Company on such terms and
conditions; and
WHEREAS, to accomplish the foregoing, the Company and Consultant wish
to supplant the prior Agreement with this Agreement retroactive from the
Effective Date.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. TERMINATION OF PRIOR AGREEMENT; CURRENT ENGAGEMENT -The Prior Agreement is
hereby deemed performed through the Effective Date and is hereby terminated
as of the Effective Date. The Company hereby employs the Consultant, and
the Consultant accepts such engagement and agrees to perform services for
the Company, for the period and upon the other terms and conditions set
forth in this Agreement.
2. TERM - Unless terminated at an earlier date in accordance with Section 8 of
this Agreement or otherwise extended by agreement of the parties, the term
of the Consultant's engagement hereunder shall be for a period of five
years, commencing on January 2, 2004. The period of engagement may be
extended by written agreement or e-mail between the parties, provided that
certain provisions relating to compensation may change upon commencement of
any extension hereto.
3. POSITION AND DUTIES
(a) SERVICE WITH COMPANY - During the term of the Consultant's
engagement, the Consultant agrees to perform such reasonable services as
the Board of Directors of the Company (the "BOARD") shall assign to
Consultant from time to time. The Consultant shall commence as a business
development and financing consultant..
(b) PERFORMANCE OF DUTIES - The Consultant agrees to serve the Company
faithfully and to the best of Consultant's ability and to devote a
reasonable amount of time, attention and efforts to the business and
affairs of the Company during Consultant's engagement by the Company. The
Consultant hereby confirms that Consultant is under no contractual
commitments inconsistent with Consultant's obligations set forth in this
Agreement and that during the term of this Agreement, Consultant will not
render or perform services for any other corporation, firm, entity or
person, which are inconsistent with the provisions of this Agreement. While
Consultant remains employed by the Company, the Consultant may participate
in reasonable professional, charitable, and/or personal investment
activities so long as such activities do not interfere with the performance
of Consultant's obligations under this Agreement.
4. COMPENSATION
(a) BASE CONSIDERATION - As compensation for services to be rendered
by the Consultant under this Agreement, the Company shall pay to the
Consultant during the term of the contract a base payment of $25,000.00
gross per month (total of $300,000 per year, the "ANNUAL SALARY"), which
payment shall be paid in arrears in accordance with the Company's normal
procedures and policies.
(b) INCENTIVE COMPENSATION - In addition to the base payment, the
Consultant shall be eligible to participate in any bonus or incentive
compensation plans that may be established by the Board from time to time
applicable to the Consultant's services.
(c) EXPENSES- The Company will pay or reimburse the Consultant for all
reasonable and necessary out-of-pocket expenses incurred by Consultant in
the performance of Consultant's duties under this Agreement, subject to the
Company's normal policies for expense verification. In addition, Company
agrees to provide Consultant with up to $5,000 monthly for auto expense,
business office expense, medical and life insurance expenses.
(d) INITIAL GRANT OF STOCK - The company agrees to CONDITIONALLY grant
to Consultant shares of common stock in the Company (the "COMMON STOCK") at
five different periods: (i) the first ("GRANT ONE") being upon the
conclusion of a 90 day period following the Effective Date, (ii) the second
("GRANT TWO") being upon the conclusion of a 180 day period following the
Effective Date, (iii) the third ("GRANT THREE") being upon the conclusion
of a 210 day period following the Effective Date, (iv) the fourth ("GRANT
FOUR") being upon conclusion of a 1 year period following the Effective
Date , and the fifth ("GRANT FIVE") being upon conclusion of an eighteen
(18) month period following the Effective Date (Grant One, Grant Two, Grant
Three, Grant Four, Grant Five, Grant Six and Grant Seven may be referred to
as "GRANT" or "GRANTS"). Each Grant shall be equivalent to a "STOCK
PERCENTAGE" of the Common Stock Equity of the Company (defined below)
calculated as of the "FINAL DATE" associated with that Grant, as follows:
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GRANT STOCK PERCENTAGE FINAL DATE
-------------------- ------------------------ ----------------------------
Grant One 2.5 April 1, 2004
-------------------- ------------------------ ----------------------------
Grant Two 1.00% July 1, 2004
-------------------- ------------------------ ----------------------------
Grant Three 1.00% Oct 1, 2004
-------------------- ------------------------ ----------------------------
Grant Four 2.5% January 3, 2005
-------------------- ------------------------ ----------------------------
Grant Five 0.5% July 1, 2005
-------------------- ------------------------ ----------------------------
The Grant will be earned based upon PERFORMANCE CRITERIA achieved by the
Company as defined below. AT ANY TIME AFTER THE COMPANY HAS IMPLEMENTED AN
EFFECTIVE ESOP PROGRAM THE CONSULTANT MAY OPT TO ACCEPT OPTION GRANTS IN
LIEU OF RESTRICTED COMMON STOCK GRANTS ON A ONE FOR ONE BASIS. THE
CONSULTANT MAY DO SO AT EACH INDIVIDUAL GRANT DATE.
The number of shares of Common Stock reflected by the Stock Percentage
("Consultant's Shares") shall be calculated against all issued and
outstanding capital stock or other equity or conversion right in the
Company inclusive of warrants (in aggregate the "Company Equity"). With
respect to any convertible stock of the Company, including without
limitation preferred stock classes C and D, and any other conversion right,
the calculation determining the number of Consultant's Shares shall be made
as if each such conversion had taken place in accordance with the
conversion rights associated with such security, (without regard to
limitations on the number of shares that may be converted in a single
instance or in a defined period), on the Final Date ("Imputed Conversion").
The price of the Common Stock to be used for calculating the Imputed
Conversion shall be the average price of the Common Stock for the 10
business days prior to the Final Date reflected on the NASD/OTCBB Market or
if the Common Stock is no longer listed on that market, the principal
securities exchange or trading market on which the Common Stock is listed
or traded, including the pink sheets. With respect to each Grant the final
calculation of the total number of Consultant's Shares shall be made within
fifteen days of the Final Date, in accordance with the following formula
("Formula"):
Total # Consultant's Shares = applicable Stock Percentage x the Equity
The Equity = Company Equity outstanding as of the Final Date
+ number of Common Shares resulting from Imputed Conversion
Each Grant is CONDITIONED upon the Company achieving its year-end
performance objectives for revenue and profitability, based on a plan to be
ratified by the Board of the Company during regularly scheduled meetings
for each of the applicable years. For example, whether Grant One occurs
will be measured against the plan set forth by the Board in the first
quarter of year 2004 for year 2004.
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The subject shares issued via each share grant are non transferable and
subject to forfeiture.
(e) Registration - All Consultant's Shares and Accrued Shares
(collectively hereafter referred to as "Consultant's Shares") may be
unregistered, unless registered prior to issuance.
Such unregistered shares shall bear the following legend.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE, IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
Consultant's Shares shall not contain the legend set forth above or any
other restrictive legend if all of the following conditions are satisfied:
(i) there is an effective Registration Statement under the Securities Act
at such time, (ii) the Consultant has delivered a certificate to the
Company to the effect that the Consultant will comply with all applicable
prospectus delivery requirements under the Securities Act in any sale or
transfer of the Consultant's Shares by the Consultant, and (iii) the
Consultant has delivered to the Company an opinion of counsel (acceptable
to the Company) that such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission). The Company agrees
that it will provide the Consultant, upon request, with a certificate or
certificates representing Consultant's Shares, free from such legend at
such time as such legend is no longer required hereunder. The Company may
not make any notation on its records or give instructions to any transfer
agent of the Company which enlarge the restrictions of transfer set forth
in this Section.
The Company covenants that it will take such further action as any holder
of Consultant Shares may reasonably request, all to the extent required
from time to time to enable such holder to sell the Shares without
registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act,
including the legal opinion of counsel to the Company pursuant in a written
letter to such effect, addressed and acceptable to the Company's transfer
agent for the benefit of and enforceable by the Consultant or successor in
interest thereto. Upon the request of any such holder, the Company shall
deliver to such holder a written certification of a duly authorized officer
as to whether it has complied with such requirements.
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(f) REGISTRATION RIGHTS - In the event of a registration of Company
common stock following the Final Date, Consultant shall have the right to
participate in such registration at Company's expense. Additionally, for a
period of five years from the date of this Agreement, Consultant shall have
preemptive rights in the event of any potentially dilutive event (excluding
exercise of any conversion rights accounted for in the Imputed Conversion
in Paragraph 4 (d) above), such that Consultant may, within a reasonable
time, elect to participate in such dilutive event under the terms thereof
to maintain Consultant's then current percentage interest in the Company.
(g) BONUS: Consultant shall be eligible to receive a bonus as may be
payable pursuant to the performance criteria as described below in Section
(h). The Bonus shall be based on 300% of the Consultant's annual salary.
(h) PERFORMANCE CRITERIA: For any quarter of the company's operation
the consultant may be eligible for a portion of his bonus if the company
achieves revenue or revenue and profit milestones set forth by the Board in
its periodic meetings. For the first year of this Agreement, the milestone
shall be $ 1.0 million in each quarter and $6 million for the calendar year
2004..
(i) CHANGE OF CONTROL - In the event of a change of control of the
Company during the period covered by this Agreement, all stock grants
listed above shall be granted immediately and all cash and expense
compensation due for the earlier of 1) three years from the date of change
of control, or 2) until the end of the Term of this Agreement, shall be
placed in escrow in an account established by the company with the
designated escrow agent. The designated escrow agent shall be Xx. Xxxxx
Xxxxxxxx Esq. of Xxxxx & Xxxx of Boston, MA. A change of control will be
defined as a change in the majority ownership of the Equity of the Company,
or the resignation or termination of the majority of the directors on the
Board within a 2 month period or the replacement of either the CEO or
President of the Company.
5. CONFIDENTIAL INFORMATION - Except as permitted or directed by the Company's
Board of Directors, during the term of Consultant's engagement or at any
time thereafter, the 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 the Consultant has acquired or become
acquainted with or will acquire or become acquainted with prior to the
termination of the period of Consultant's engagement by the Company
(including engagement by the Company or any affiliated companies prior to
the date of this Agreement) whether developed by Consultant self/herself or
by others, concerning any trade secrets, confidential or secret designs,
processes, formulae, plans, devices or material (whether or not patented or
patentable) directly or indirectly useful in any aspect of the business of
the Company, any customer or supplier lists of the Company, any
confidential or secret development or research work of the Company, or any
other confidential information or secret aspects of the business of the
Company. The Consultant acknowledges that the above-described knowledge or
information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company, 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. Both during and after the term of
Consultant's engagement, the Consultant will refrain from any acts or
omissions that would reduce the value of such knowledge or information to
the Company. The foregoing obligations of confidentiality shall not apply
to any knowledge or information that is now published and publicly
available 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 the Consultant.
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6. VENTURES - If, during the term of Consultant's engagement the Consultant is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in such project, program or venture shall belong to the Company,
unless prior written consent from the Company is obtained. Except as
approved by the Company's Board of Directors, the Consultant shall not be
entitled to any interest in such project, program or venture or to any
commission, finder's fee or other compensation in connection therewith
other than the compensation to be paid to the Consultant as provided in
this Agreement. The Consultant shall not enter into any arrangement through
which Consultant acquires or may acquire any interest, direct or indirect,
in any vendor or customer of the Company other than Consultant.
7. Patent and Related Matters; Disclosure and Assignment - The Consultant will
promptly disclose in writing to the Company complete information concerning
each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to practice
by the Consultant, either solely or in collaboration with others, during
the term of this Agreement, whether or not during regular working hours,
relating either directly or significantly and indirectly to the business,
products, practices or techniques of the Company ("Developments"). The
Consultant, to the extent that Consultant has the legal right to do so,
hereby acknowledges that any and all of the Developments are the property
of the Company and agrees to assign and hereby assigns to the Company any
and all of the Consultant's right, title and interest in and to any and all
of the Developments ("Assignment"). During the period commencing upon the
day after the Consultant's last day performing services for the Company and
ending one year after termination of the Consultant's engagement with the
Company, at the reasonable request of the Company, the Consultant will
confer with the Company and its representatives for the purpose of
disclosing all Developments to the Company, provided that such conference
is at the Company's expense and Consultant is compensated at no less that a
rate of $250 per hour for Consultant's time.
(a) LIMITATION ON SECTION 7(a) - The provisions of Section 7 shall not
apply to any Development meeting the following conditions: (i) such
Development was developed entirely on the Consultant's own time without the
use of any Company equipment, supplies, facility or trade secret
information; and (ii) such Development does not relate directly or
significantly to the business of the Company to the Company's actual or
demonstrably anticipated research or development; or result from any work
performed by the Consultant for the Company.
(b) COPYRIGHTABLE MATERIAL - All right, title and interest in all
copyrightable material that the 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
by this Agreement assigned to the Company along with ownership of any and
all copyrights in the copyrightable material. Upon request and without
further compensation therefor, but at no expense to the Consultant, the
Consultant shall execute all papers and perform all other acts necessary to
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assist the Company to obtain and register copyrights on such materials in
any and all countries, except that Consultant shall be compensated at no
less that a rate of $250 per hour for Consultant's time for compliance with
this provision following termination or expiration of this Agreement. Where
applicable, works of authorship created by the Consultant for the Company
in performing Consultant's responsibilities under this Agreement shall be
considered "WORKS MADE FOR HIRE," as defined in the U.S. Copyright Act. To
the extent not considered as work made for hire, such works will be
considered assigned to the Company under the Assignment provision of this
Section 7.
(c) KNOW-HOW AND TRADE SECRETS - All know-how and trade secret
information conceived or originated by the Consultant that arises out of
the performance of Consultant's obligations or responsibilities under this
Agreement or any related material or information shall be the property of
the Company, and all rights therein are by this Agreement assigned to the
Company.
8. TERMINATION OF ENGAGEMENT; GROUNDS FOR TERMINATION - The Consultant's
engagement shall terminate prior to the expiration of the initial term set
forth in Section 2 or any extension thereof in the event that at any time:
(i) The Consultant dies, (ii) The Board elects to terminate this Agreement
for "cause" and notifies the Consultant in writing of such election, (iii)
The Board elects to terminate this Agreement without "cause" and notifies
the Consultant in writing of such election, (iv) The Consultant elects to
terminate this Agreement and notifies the Company in writing of such
election, or (v) The Consultant elects to terminate this Agreement for
"good reason" (as defined below) and notifies the Company in writing of
such election.
If this Agreement is terminated pursuant to clause (i) or (ii) of this
Section 8(a), such termination shall be effective immediately. If this
Agreement is terminated pursuant to clause (iii), (iv), or (v) of this
Section 8(a), such termination shall be effective 30 days after delivery of
the notice of termination.
(b) "CAUSE" DEFINED - "Cause" means: (i) The Consultant has breached
the provisions of Section 5, 6 or 7 of this Agreement in any material
respect, (ii) The Consultant has engaged in willful and material
misconduct, including willful and material failure to perform the
Consultant's duties as an officer or Consultant of the Company and has
failed to cure such default within 30 days after receipt of written notice
of default from the Company, (iii) The Consultant has committed fraud,
misappropriation or embezzlement in connection with the Company's business,
or (iv) The Consultant has been convicted or has pleaded NOLO CONTENDERE to
criminal misconduct (except for parking violations, occasional minor
traffic violations and other similar minor violations).
(c) EFFECT OF TERMINATION - Notwithstanding any termination of this
Agreement, the Consultant, in consideration of Consultant's engagement
hereunder to the date of such termination, shall remain bound by the
provisions of this Agreement which specifically relate to periods,
activities or obligations upon or subsequent to the termination of the
Consultant's engagement.
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(d) SURRENDER OF RECORDS AND PROPERTY- Upon termination of
Consultant's engagement with the Company, the Consultant shall deliver
promptly to the Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables,
calculations or copies thereof that relate in any way to the business,
products, practices or techniques of the Company, and all other property,
trade secrets and confidential information of the Company, including, but
not limited to, all documents that in whole or in part contain any trade
secrets or confidential information of the Company, which in any of these
cases are in Consultant's possession or under Consultant's control.
(e) PAYMENT CONTINUATION - If the Consultant's engagement by the
Company is terminated by the Company pursuant to clause (iii) of Section
8(a) or by Consultant for Good Reason pursuant to clause (v) of Section
8(a), the Company shall continue to pay to the Consultant Consultant's base
payment (less any payments received by the Consultant from any disability
income insurance policy provided to Consultant by the Company) and shall
continue to provide health insurance benefits for the Consultant through
the earlier of (a) the date that the Consultant has obtained other
full-time engagement, or (b) three (3) months from the date of termination
of engagement. If this Agreement is terminated pursuant to clauses (i),
(ii) or (iv) of Section 8(a), the Consultant's right to base payment and
benefits shall immediately terminate, except as may otherwise be required
by applicable law.
(f) "GOOD REASON" DEFINED - Good Reason shall mean: (i) the assignment
of the Consultant to any duties inconsistent in any respect with the
Consultant's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
Section 3(a) or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Consultant; (ii) any
termination or reduction of a material benefit under any benefits plan in
which the Consultant participates unless (1) there is substituted a
comparable benefit that is economically substantially equivalent to the
terminated or reduced benefit prior to such termination or reduction or (2)
benefits under such plan are terminated or reduced with respect to all
Consultants previously granted benefits thereunder; (iii) without limiting
the generality of the foregoing, any material breach of this Agreement by
the Company or any successor thereto.
9. INDEMNIFICATION - In the event that Consultant is made, or threatened to be
made, a party to any action or proceeding, whether civil or criminal, by
reason of the fact that Consultant is or was a director, officer, or member
of a committee of the Board or serves or served any other corporation,
partnership, joint venture, trust, Consultant benefit plan or other
enterprise in any capacity at the request of the Company, or resulting from
any of Consultant's actions in any of the foregoing roles Consultant shall
be indemnified by the Company and the Company shall advance Consultant's
related expenses to the fullest extent permitted by law (including without
limitation, damages, costs and reasonable attorney fees), as may otherwise
be provided in the Company's Certificate of Incorporation and By Laws as
incurred and will start prior to any judicial preceding. The Company
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further covenants not to amend or repeal any provisions of the Certificate
of Incorporation or Bylaws of the Company in any manner which would
adversely affect the indemnification or exculpatory provisions contained
therein as they pertain to acts. The provisions of this Section are
intended to be for the benefit of, and shall be enforceable by, each
indemnified party and Consultant's or her heirs and representatives. If the
Company or any of its successors or assigns (i) shall consolidate with or
merge into any other corporation or entity and shall not be the continuing
or surviving corporation or entity of such consolidation or merger or (ii)
shall transfer all or substantially all of its properties and assets to
such Person, then and in each such case, proper provisions shall be made so
that the successors and assigns of the Company shall assume all of the
obligations set forth in this section 9.
10. MISCELLANEOUS
(a) COUNTERPARTS - This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken
together shall constitute one and the same agreement, and any party hereto
may execute this Agreement by signing any such counterpart.
(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 provisions of this
Agreement will not be affected or impaired thereby. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent
of, or business activities covered by, any provision of this Agreement be
in excess of that which is valid and enforceable under applicable law, then
such provision shall be construed to cover only that duration, extent or
activities which may validly and enforceably be covered.
(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) ASSIGNABILITY - Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the
prior written consent of the other party to this Agreement, except that the
Company may, without the consent of the Consultant, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity with or into which the Company may merge or consolidate, or to which
the Company may sell or transfer all or substantially all of its assets, or
of which 50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Provided such assignee explicitly assumes such responsibilities,
after any such assignment by the Company, the Company shall be discharged
from all further liability hereunder and such assignee shall thereafter be
deemed to be the Company for the purposes of all provisions of this
Agreement including this Section 10.
(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. No delay on the part of the Company or
Consultant 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 the Consultant shall constitute a waiver of any other right
or breach by the Consultant.
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(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 herein. All such communications shall be effective when received.
If to the Company:
Xxx Xxxxx, Xx.
Facsimile: 000-000-0000
Attn: President
#000 - 00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Consultant:
Xxxx X Xxxxx
000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Any party may change the address set forth above by notice to the
other party given as provided herein.
(g) HEADINGS - The headings and any table of contents contained in
this Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
(h) 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 CONNECTICUT, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW PROVISIONS THEREOF.
(i) VENUE; FEES AND EXPENSES - Any action at law, suit in equity or
judicial proceeding arising directly, indirectly, or otherwise in
connection with, out of, related to or from this Agreement, or any
provision hereof, shall be litigated only in the state courts located in
the State of Connecticut, County of Fairfield or the federal courts in the
district which covers such county. The Consultant and the Company consent
to the jurisdiction of such courts. The prevailing party shall be entitled
to recover its reasonable attorneys' fees and costs in any such action.
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(j) WAIVER OF RIGHT TO JURY TRIAL - Each party hereto hereby waives,
except to the extent otherwise required by applicable law, the right to
trial by jury in any legal action or proceeding between the parties hereto
arising out of or in connection with this Agreement.
(k) 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.
(l) WITHHOLDING TAXES - The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THIS AGREEMENT AND ANY EXHIBITS HERETO ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR ALL
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
ACCEPTED AND AGREED:
XXXXXXXX TECHNOLOGY, INC. VERDI CONSULTING
By: Xxx Xxxxx. By: Xxxx Xxxxx.
President
/s/ Xxx Xxxxx /s/ Xxxx Xxxxx
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Date: 1-3-2005 Date: 1-3-2005
