Consulting Agreement
THIS
CONSULTING AGREEMENT (this “Agreement”)
is
entered into as of January 12, 2006 by and between Wherify Wireless, Inc.,
a
Delaware corporation (the “Company”)
and W.
Xxxxxxx Xxxxxx, 000 Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000 (“Xxxxxx”).
In
consideration of the mutual promises and covenants contained herein, the parties
hereto agree as follows:
1. Engagement.
The
Company hereby retains Xxxxxx as a financial advisor to the Company. In general,
Xxxxxx’x duties shall consist of advising, and as appropriate, assisting the
Company in evaluating and executing the Company’s strategic business
alternatives including negotiations related to such alternatives. Such advisory
services shall be at mutually agreed upon times and places. Xxxxxx shall not
negotiate financings for the Company nor take any action requiring that he
register as a broker-dealer under applicable law.
2. Compensation.
2.1 Retainer.
The
Company shall pay Xxxxxx a retainer fee of $10,000 per month payable each month
in advance.
2.2 Expenses. Xxxxxx
shall be entitled to reimbursement by the Company for all reasonable out of
pocket expenses reasonably incurred by him in the performance of his duties
hereunder.
2.3 Confidentiality.
Some
information which the Company will furnish Xxxxxx may contain nonpublic
confidential information of the Company. Xxxxxx agrees not to disclose or use
any such confidential information except in connection with the engagement
or
with the prior consent of the Company.
2.4 Indemnification.
The
Company agrees to indemnify Xxxxxx in accordance with the indemnification letter
attached hereto as Schedule A, the provisions of which are incorporated herein
in their entirety.
3. Miscellaneous.
3.1 Severability.
The
severability of any provision of this Agreement shall not affect the validity
or
enforceability of any other provision of this Agreement.
3.2 Assignment.
Since
this is a personal services agreement, Xxxxxx’x rights and obligations shall not
be assignable by Xxxxxx. This Agreement may be assigned by the Company and
shall
be binding upon any successors and assignees of the Company.
3.3 Governing
Law.
This
Agreement and the rights and obligations of the parties, hereunder shall be
interpreted in accordance with the laws of the State of California.
3.4 Cancellation
Provisions.
This
Agreement may be cancelled by either party upon 30 day written notice to the
other party.
3.5 Entire
Agreement.
This
Agreement is the entire agreement between the parties as to the subject matter
of this Agreement and supersedes and replaces all prior discussions,
understandings and agreements between the parties, written or oral, including
without limitation that certain Consulting Agreement, effective January 1,
2004,
between Xxxxxx and Wherify California, Inc. This Agreement may be amended only
in writing signed by both parties.
[Remainder
of Page Intentionally Left Blank]
2
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
indicated above, the Company by its officer duly authorized.
| /s/ Xxxxxxx X. Xxxxx | /s/ W. Xxxxxxx Xxxxxx | ||
|
|
|
||
| Xxxxxxx
X.
Xxxxx President and CEO |
W.
Xxxxxxx Xxxxxx
134
Shore Drive West
New
Seabury, MA 00000
000-000-0000
(phone)
000-000-0000
(fax)
|
3
Exhibit
A
Recognition
that transactions of the type contemplated in this engagement sometimes result
in litigation and that Xxxxxx’x role is advisory in nature, the Company agrees
to indemnify and hold harmless Xxxxxx, from and against any losses, claims
damages and liabilities related to or arising in any manner out of any
transaction, proposal or any other matter (collectively, the “Matter”)
contemplated by the engagement of Xxxxxx hereunder, and will promptly reimburse
Xxxxxx for all reasonable and documented expenses (including reasonable and
documented fees and expense of legal counsel) incurred in connection with the
investigation of or defense of any pending or threatened claim related to or
arising in any manner out of any Matter contemplated by the engagement of Xxxxxx
hereunder, or any action or proceeding arising therefrom (collectively,
“Proceedings”).
Notwithstanding the foregoing, the Company shall not be liable in respect of
any
losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted primarily from
the
gross negligence, bad faith or willful misconduct of Xxxxxx. The Company further
agrees that it will not, without the prior written consent of Xxxxxx (which
consent will not be unreasonably withheld or delayed) settle, compromise or
consent to the entry of any judgment in any pending or threatened Proceeding
in
respect of which indemnification may be sought hereunder, unless such
settlement, compromise or consent includes an unconditional release of Xxxxxx
from all liability arising out of such Proceeding. Xxxxxx agrees that he will
not settle, compromise or consent to the entry of any judgment in any pending
or
threatened Proceeding in respect of which indemnification may be sought
hereunder with out the prior written consent of the Company (which consent
shall
not be unreasonably withheld).
Promptly
after receipt by Xxxxxx of notice of any complaint or the commencement of any
Proceeding with respect to which indemnification is being sought hereunder,
Xxxxxx will notify the Company of such complaint or of the commencement of
such
Proceeding. The failure to notify the Company will not relieve the Company
from
any liability which the Company may have hereunder, except to the extent that
such failure results in the forfeiture by the Company of substantial rights
and
defense in respect of such Proceeding. If the Company so elects, the Company
will assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to Xxxxxx and the payment of the fees and expense of
such counsel. In any Proceeding the defense of which the Company assumes, Xxxxxx
will have the right to participate in such litigation and to retain his own
counsel at Xxxxxx’x expense unless (i) the Company shall have agreed to pay the
fees and expenses of counsel to Xxxxxx, (ii) the Company shall have failed
to
employ counsel reasonably satisfactory to Xxxxxx or to assume the defense of
the
Proceeding in a timely manner, or (iii) Xxxxxx reasonably determines in his
judgment that having common counsel would present actual or potential conflicts
of interest, including situation in which there are one or more legal defenses
available to Xxxxxx that are different from or addition to those available
to
the Company, in which case Xxxxxx may employ separate counsel to represent
or
defend him in such proceeding and the Company will pay the reasonable fees
and
expenses of not more than one separate counsel.
