EXHIBIT 10.7
AGREEMENT
This Agreement is entered into and is effective this 22nd day of April,
2005 by and between Xxxxx Xxxxxxx, having his principal place of business at
_______, Israel and Xxxxxxx.xxx, Inc., an Utah corporation, currently having an
address at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Company").
WHEREAS, the Company desires to continue to retain Consultant to provide
services to the Company.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do covenant and agree, as
follows:
1. Retention. The Company hereby agrees to continue to retain Consultant
to act as a consultant to the Company, and continue to perform such services to
the Company as requested by the officers and directors of the Company (the
"Services"). Consultant agrees to use his best efforts to supply the Services in
a professional and diligent manner, and to devote as much time and effort as is
necessary to perform such Services.
2. Term. The term of this Agreement (the "Term") shall be for two (2)
years commencing as of January 1, 2005, but the Company may, with or without
cause, elect to terminate the Agreement by giving five (5) days' written notice.
Upon such termination, Consultant shall be relieved of any further obligation of
performance to the Company; provided, however, that notwithstanding the date of
termination (a) the Company shall pay the Consultant for the remainder of the
Term, including without limitation the issuance of the shares described below,
and (b) all obligations of confidentiality, non-disclosure and non-competition
will continue in full force and effect for one (1) year from the effective date
of any termination.
3. Compensation. The monthly cash compensation payable to the Consultant
is $2,700 for each month of the Term, payable on a monthly basis. In addition,
the Company shall, in consideration of Services to be performed, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, issue to the Consultant, 5,000 shares of common stock of the
Company each month of the Term. The Company agrees to use its best efforts to
have the shares issued to the Consultant pursuant to this Agreement registered
with the SEC pursuant to a registration statement on Form S-8. The Company shall
also pay all expenses incurred by the Consultant related to the Services,
provided that the Consultant provides itemized invoices and receipts thereof.
4. The Consultant understands and agrees that the securities issued
pursuant to this Agreement are being offered pursuant to Section 4(2) of the
Securities Act of 1933, as amended, (the "Securities Act"), and that such shares
and any interests therein, may not be offered, sold, transferred, pledged or
otherwise disposed of except pursuant to (i) an effective registration statement
under the Securities Act and any applicable state securities laws or (ii) an
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exemption from registration under such act and such laws which, in the opinion
of counsel for the holder of the Securities, which counsel and opinion are
reasonably satisfactory to counsel for the Company, is available. The Consultant
represents that he is an "accredited investor" as such term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act. The Consultant also
understands and agrees that the following legend shall appear on Securities and
that the Company may give appropriate instructions to the transfer agent for the
Securities to enforce such restrictions:
THESE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE
NOT BEEN ACQUIRED WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF
1933 AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933 OR UNDER APPLICABLE STATE SECURITIES LAWS.
6. Consultant's Non-Disclosure of Information/Non-Competition.
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a. The Consultant acknowledges that in the course of its engagement he may
become familiar with trade secrets and other confidential information
(collectively, "Confidential Information") concerning the Company and Consultant
shall hold in a fiduciary capacity for the benefit of the Company all secret,
confidential proprietary information, knowledge or data relating to the Company
that shall have been obtained by the Consultant during its engagement by the
Company and that shall have not been or now or hereafter have become public
knowledge (other than by acts by the Consultant or its representatives in
violation of this Agreement). Consultant agrees that it shall not disclose to
any third party any Confidential Information for any purpose other than the
performance of its duties under this Agreement. During the Term and at all times
thereafter, regardless of the reason for the termination of this Agreement,
Consultant shall not, without the prior written consent of the Company or as
otherwise may be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by the Company.
b. Upon completion of the Term or earlier termination of this Agreement
for any reason, Consultant will return to the Company any confidential materials
or information which the Company may have supplied to the Consultant. Consultant
may retain a copy of such materials or information for Consultant's own due
diligence file. However, Consultant hereby agrees not to distribute or release
such confidential materials or information without giving the Company at least
five (5) days' written notice so that Company shall have the opportunity, at
Company's sole cost and expense, to move to prevent Consultant's distribution or
release of the confidential material or information.
c. Subject to the limitations set forth herein, Consultant agrees that
during the Term and for a period of one year thereafter he shall not directly or
indirectly, own, manage, control, participate in, consult with, render services
for, or in any manner engage in any business competing with the business of the
Company as such business exists within any geographical area in which the
Company conducts its business. In addition, Consultant shall not solicit,
interfere with or conduct business with any vendors, customers or employees of
the Company during the term of this Agreement or for a period of one year after
the termination hereof. In the event the Company breaches any of its duties or
obligations under this Agreement, the Company agrees that Consultant shall not
be bound by the provisions of this Agreement, except for the provisions
concerning Confidential Information.
6. Law. This Agreement and all matters and issued collateral thereto shall
be governed by the laws and the courts of the State of New York without regard
to the principles of conflicts of laws.
7. Severability. If any provision of this Agreement becomes or is found to
be illegal or unenforceable for any reason, such clause or provision must first
be modified to the extent necessary to make this Agreement legal and enforceable
and then if necessary, second, severed from the remainder of the Agreement to
allow the remainder of the Agreement to remain in full force and effect.
8. Counterparts. This Agreement may be executed in several counterparts
and by facsimile, and all of such counterparts taken together shall be deemed to
be one Agreement.
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9. Attorneys' Fees. If either party shall commence any action or
proceeding against the other in order to enforce the provisions hereof, or to
recover damages resulting from the alleged breach of any of the provisions
hereof, the prevailing party therein shall be entitled to recover all reasonable
costs incurred in connection therewith, including, but not limited to,
reasonable attorneys' fees and expenses.
10. Notices. Each notice, demand, request, approval or communication
("Notice") which is or may be required to be given by any party to any other
party in connection with this Agreement and the transactions contemplated
hereby, shall be in writing, and given by personal delivery, certified mail,
return receipt requested, prepaid, or by overnight express mail delivery and
properly addressed to the party to be served at such address as set forth above.
Notices shall be effective on the date delivered personally, the next day if
delivered by overnight express mail or three days after the date mailed by
certified mail.
11. Entire Agreement. This Agreement contains the entire agreement between
Consultant and Company, and correctly sets forth the rights and duties of each
of the parties to each other concerning such matter as of this date. Any
agreement or representation concerning the subject matter of this Agreement or
the duties of Consultant in relation to Company not set forth in this Agreement
is null and void.
12. Binding Effect. The rights created by this Agreement shall inure to
the benefit of, and the obligations created hereby shall be binding upon the
parties, their heirs, successors, assigns and personal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first hereinabove written.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Xxxxxxx.xxx, Inc.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Director
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