CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (this “Agreement”)
is
effective as of November 12, 2008 (the “Effective
Date”),
by
and between BBM Holdings, Inc. (the “Company”),
a
Utah corporation with offices at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx
Xxxx,
Xxxx 00000 and Xx. Xxxxxx Xxxxxxxxx (the “Consultant”),
an
individual residing at __________________.
BACKGROUND
WHEREAS,
the Company entered into a certain certain Asset Purchase Agreement, by and
between the Company and the Consultant, dated as of November 12, 2008 to
purchase certain assets from the Consultant; and
WHEREAS,
the Company desires to engage the Consultant to perform services for it from
time to time, as requested by the Company, and the Consultant is willing to
be
engaged, on the terms and conditions set forth below;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged and intending to be legally bound, IT IS
AGREED:
TERMS
1. Engagement.
Upon
the terms and conditions set forth below, the Company hereby engages the
Consultant to perform the Consulting Services (as defined below) and the
Consultant hereby accepts such engagement.
2.
(a) Consulting
Services.
During
the period commencing on the date of this Agreement and ending on December
31,
2009, unless mutually extended in writing between the parties (the “Consulting
Term”),
the
Consultant shall at the request of the Company’s board of directors (the
“Board”)
shall
serve on a part-time basis as the Company’s Chief Executive Officer and provide
consulting services at the request of the Board, including without limitation,
as may be needed to lead acquisitions and product development (the “Consulting
Services”).
The
Consultant shall report to the Board. The Consultant may at all times during
the
Consulting Term (as defined below) and thereafter be engaged in any other
business activity, provided that he does not engage in any activities that
are
competitive, directly or indirectly, with the Company’s business while on the
Company’s premises. The
Consulting Services shall be performed at mutually convenient times and at
mutually convenient locations. The Consulting Services shall be provided
in telephone conversations or at the offices of the Company exclusively unless
the Board reasonably requests that the Consulting Services be furnished in
other
cities and the Consultant determines in his sole discretion to do so.
(b) Independent
Contractor Status.
The
parties agree that the Consultant is an independent contractor of the Company,
and is not an employee, partner, joint venturer, or agent of the Company.
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(c) Indemnity.
The
Company shall indemnify and hold harmless the Consultant from and against any
liability, loss, expense, damage, or injury suffered or sustained by it or
him
by reason of any acts, omissions or alleged acts or omissions arising out of
his
activities on behalf of the Company or in furtherance of the interests of the
Company (including any judgment, award, settlement, and any reasonable
attorneys’ fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding, or claim and including
any payment by the Consultant), but only if the conduct of the Consultant did
not constitute gross negligence or willful misconduct and if the Consultant
acted in a manner it reasonably believed to be in, or not opposed to, the best
interests of the Company and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or
upon
a plea of nolo
contendere
or its
equivalent shall not, of itself, create a presumption that the party to be
indemnified did not act in a manner which he reasonably believed to be in,
or
not opposed to, the best interests of the Company or that he had reasonable
cause to believe that his conduct was unlawful.
3. Compensation.
During
the Consulting Term, the Consultant shall be compensated for his Consulting
Services and expenses set forth below:
(a) Fees.
In full
consideration for the Consulting Services during the Consulting Term and all
other obligations undertaken pursuant to this Agreement, the Company shall
pay
the Consultant the sum of $1, receipt of which is hereby
acknowledged.
(b) Expenses.
The
Company shall reimburse the Consultant for the reasonable expenses incurred
by
the Consultant in connection with the Consulting Services, payable upon receipt
of a monthly invoice from the Consultant, subject to the delivery to the Company
of appropriate documentation of such expenses. The Consultant shall not incur
any travel or other substantial expenses without the prior written approval
of
the Company, nor shall the Consultant be reimbursed for any such
expenses.
(c) No
Employee Benefits.
As an
independent contractor, the Consultant shall not be entitled to any of the
benefits, privileges or coverage made available to employees of the Company,
including, without limitation, social security, unemployment, medical, or
pension payments or insurance. The compensation paid to the Consultant pursuant
to this Agreement is not subject to federal, state, or local tax withholdings
and the Consultant is responsible for all tax liability incurred by the
Consultant.
4. Term
and Termination.
This
Agreement shall commence as of the Effective Date and shall terminate on the
close of business on December 31, 2009, unless the Consulting Term is mutually
extended in writing between the parties, in which case this Agreement shall
terminate on the close of business on the date on which the Consulting Term
is
to expire, except for the provisions of Sections 2(c), 4, 5, 6 and 7 which
shall
survive indefinitely.
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(a) Consultant’s
Duties Upon Termination.
The
Consultant shall (i) promptly deliver to the Company all of the Consultant’s
Work Product (as defined below); and (ii) return to the Company all property
belonging to the Company or used in its business and in the Consultant’s
possession. Notwithstanding the termination of Consulting Services, the
Consultant shall continue to be bound by the covenants set forth in Section
5,
Section 6 and Section 7.
(b) Duties
Upon Termination.
After
termination of the Consulting Term, upon reimbursement of expenses pursuant
to
Section 3(b), all obligations of the Company to the Consultant shall cease,
and
Consultant shall have no obligations to the Company except pursuant to Section
5, Section 6 and Section 7 of this Agreement.
5. Work
Product.
The
Consultant acknowledges that any and all writings, documents, know-how, plans,
memoranda, research, and data that the Consultant makes, conceives, discovers
or
develops, either solely or jointly with any other person, at any time during
the
term of the Consultant’s engagement, whether during working hours, at a Company
facility, or at any other time or location, and whether upon the request or
suggestion of the Company or otherwise, that arise from or are related to the
Consultant’s performance of the Consulting Services hereunder (collectively,
“Work
Product”),
shall
be the sole and exclusive property of the Company. The Consultant shall deliver
all deliverable Work Product and instruments of assignment or transfer thereof
to the Company at its request without any charge therefor.
6. Confidentiality;
Non-solicitation; Invention and Non-Compete Agreement.
(a) Confidentiality.
The
Consultant acknowledges the time and expense incurred by the Company in
connection with developing proprietary and confidential information in
connection with its business and operations. The Consultant agrees that during
the Term and for a period of three (3) years thereafter, he will not divulge,
communicate, use to the detriment of the Company or for the benefit of any
other
person, firm or entity, or misappropriate in any way, any confidential
information or trade secrets relating to the Company or any of its businesses
including without limitation, business strategies, operating plans, strategies,
financial information, market plans or analyses, potential acquisitions or
strategic transactions, personnel information, trade processes, manufacturing
methods, know-how, customer lists and relationships, supplier lists, or other
non-public proprietary and confidential information relating to the Company
(collectively, “Confidential
Information”),
provided that,
Confidential Information shall not include information which becomes generally
available to the public through no breach by the Consultant of the provisions
of
this Section 6(a).
(b) Non-Solicitation.
Commencing on the Effective Date and continuing until six (6) months after
the
date of termination of the Consultant’s engagement, the Consultant shall not,
directly or indirectly, for himself or on behalf of any other person, firm
or
entity, employ, engage or retain any person who at any time during the preceding
six (6) month period shall have been an employee of the Company, or contact
any
employee of the Company for the purpose of soliciting or diverting any such
employee from the Company or otherwise interfering with the business
relationship of the Company with any of the foregoing.
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(c) Invention
Assignment and Non-Compete Agreement.
In
connection with Consultant’s engagement by the Company, Consultant shall enter
into with the Company, and during the Consulting Term and any other period
thereafter as set forth therein, hereby agrees to be bound by the terms and
conditions of, that certain Invention Assignment and Non-Compete Agreement,
to
be dated as of the even date herewith (the “Invention
Assignment and Non-Compete Agreement”),
a
form of which is annexed hereto as Annex
1.
(d) Acknowledgement.
The
Consultant acknowledges that his services hereunder and covenants herein are
an
essential inducement to the Company’s entering into this Agreement. Without
limiting the foregoing, the Consultant further acknowledges that the
Consultant’s agreement to the covenants set forth in Section 6 (including
without limitation, his agreement to enter into and be bound by the terms and
conditions of the Invention Assignment and Non-Compete Agreement pursuant to
Section 6(c)) was an essential inducement to the Company’s entering into this
Agreement and that the Company would suffer irreparable harm upon a breach
of
the foregoing covenant or agreement. Accordingly, the Consultant shall be bound
by the provisions hereof (including the provisions of Section 5 or this Section
6 to the maximum extent permitted by law, it being the intent and spirit of
the
parties that this Agreement shall be fully enforceable).
(e) Specific
Enforcement.
The
Consultant acknowledges that the services to be rendered under the provisions
of
this Agreement are of a unique nature and that it would be difficult or
impossible to replace such services and that by reason thereof the Consultant
agrees and consents that if he violates the provisions of Section 5 or this
Section 6, the Company, in addition to any other rights and remedies available
under this Agreement or otherwise, shall be entitled to an injunction to be
issued or specific enforcement to be required (without the necessity of any
bond) restricting the Consultant from committing or continuing any such
violation.
(f) Return
of Material.
In the
event of the termination of this Agreement for any reason whatsoever, the
Consultant shall promptly surrender and deliver to the Company (without
retaining any copies), all records, documents, materials, reports, analysis
or
other materials of any nature pertaining to or derived from any Confidential
Information.
(g) Suspension
of Payments.
If the
Consultant has breached any provision of Section 5 or this Section 6, the
Company shall be entitled to suspend all payments due the
Consultant.
(h) Savings
Provision.
If any
restriction set forth in Section 5 or this Section 6 is found by any court
of
competent jurisdiction to be unenforceable because it extends for too long
a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
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(i) Survival.
The
covenants and agreements set forth in Section 5 or this Section 6 shall survive
termination of this Agreement.
7. Miscellaneous.
(a) Binding
Nature of Agreement.
This
Agreement shall be binding upon and inure to the benefit of the Company and
its
successors and assigns and shall be binding upon the Consultant, and the
Consultant's heirs and legal representatives.
(b) Notice.
Any
notice required or permitted under this Agreement shall be given in writing
to
the parties at their respective addresses specified above, or at such other
address for a party as that party may specify by prior notice,
(c) Assignment.
The
Company shall have the right to assign this Agreement and any such successor
shall be bound by all of the provisions of this Agreement. The Consultant shall
have no right to assign or delegate any of his rights, obligations or duties
under this Agreement and any attempted assignment or delegation by the
Consultant shall be void and of no force and effect.
(d) Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York without regard to principles of conflicts of
law.
Each party hereby irrevocably consents and submits to the jurisdiction of any
New York State or United States Federal Court sitting in the State of New York,
County of New York, over any action or proceeding arising out of or relating
to
this Agreement and irrevocably consents to the service of any and all process
in
any such action or proceeding by registered mail addressed to such party at
its
address specified herein (or as otherwise noticed to the other party). Each
party further waives any objection to venue in New York and any objection to
an
action or proceeding in such state and county on the basis of forum
non conveniens.
Each
party also waives any right to trial by jury.
(e) Entire
Agreement.
This
Agreement and the Invention Assignment and Non-Compete Agreement contain the
entire understanding between the Consultant and the Company relating to the
subject matter hereof and supersede any prior oral or written agreements and
understandings between them relating to the subject matter hereof. No provision
of this Agreement may be modified, waived or discharged unless such
modification, waiver, or discharge is agreed to in writing by both the Company
and the Consultant. In the event of any conflict between this Agreement and
the
Invention Assignment and Non-Compete Agreement, the terms of the Invention
Assignment and Non-Compete Agreement shall govern.
(f) Provisions
Separable.
The
provisions of this Agreement are independent of and separable from each other,
and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other provision may be invalid or
unenforceable in whole or in part.
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(g) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be binding as
of
the date first written above, and all of which shall constitute one and the
same
instrument. Each such copy shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than
one such counterpart.
IN
WITNESS WHEREOF,
the
undersigned agree to the terms and conditions contained herein and hereby
acknowledge the same by affixing their signatures below as of the date and
year
first above written.
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By:
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/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title:
President and CEO
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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