EMPLOYMENT/CONSULTING/WARRANT AGREEMENTS
CONSULTING AGREEMENT
This Consulting Agreement (the Agreement ) is entered into effective
as of November ___, 1999, by and between LEAPFROG SMART PRODUCTS, Inc.,
a Colorado corporation f/k/a ALBARA CORPORATION, (the Company ), and
REAL XXXXXXXXXX ( Consultant ). The Company and Consultant are each a
party and together are the parties to this Agreement.
W I T N E S S E T H:
WHEREAS, the Company desires to engage Consultant to provide
certain services on the terms provided herein; and
WHEREAS, Consultant desires to provide such services
to the Company.
NOW THEREFORE, in consideration of the mutual benefits to be
derived and the representations and warranties, conditions and
promises herein contained, and other good and valuable consideration,
the sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Services to be Provided. The Company hereby employs
Consultant to provide and Consultant hereby agrees to provide to the
Company for the Term as defined below) the following services (the
Services ):
(a) Executive, management and marketing services and other
services consistent with the office of Vice President of the
Company;
(b) Business development services; and
(c) Strategic planning services, including but not limited to
acquisition strategies and exit strategies for investors.
2. Consultant Fees. As compensation for Consultant s performance
of the Services, the Company shall issue to Consultant upon the
date of execution of this Agreement a Warrant ( Warrant ) in
the form of Exhibit A attached hereto providing for the right
to purchase common stock of the Company.
3. Reimbursable Expenses. Notwithstanding any provision
herein, the Company shall remain directly and primarily responsible
for all reasonable expenses incurred in connection
with Consultant rendering the Services. Consultant shall be
entitled to reimbursement, in cash at the time incurred, for
reasonable expenses incurred by or on behalf of Consultant for
the benefit of the Company and attributable to the business of
the Company.
4. Indemnification. In addition to the other remedies specified
hereunder, the Company agrees to hold harmless, defend and
indemnify Consultant from any claim, demand, obligation, action,
suit, judgment, penalty, loss, damage, liability, cost or
expense of any kind or any nature whatsoever arising out of the
actions of Consultant on behalf of the Company in accordance
with the terms of this Agreement. Notwithstanding the above, the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability: (i) is found in the
judgement of a court of competent jurisdiction to have resulted
from Consultant s gross negligence or misfeasance in performing
the Services; or (ii) arises out of, or is based upon, any untrue
statement of a material fact or omission of a material fact made in
any written communication or any amendment or supplement
thereto in reliance upon, and in conformity with, information
furnished to the Company by Consultant expressly for use
therein. Such indemnification pursuant to this Section 4 shall
include attorneys fees, incurred by or against Consultant.
5. Independent Manager and Operator. Consultant and the Company
hereby acknowledge that Consultant is and will be an independent
contractor. Accordingly, Consultant has the sole right to manage,
control and direct the method, manner and means by which the
Services are executed, as long as the manner of execution meets
with the terms and conditions in this Agreement. Further, the
Company hereby acknowledges that Consultant is engaged
in business activities and will continue to have certain business
responsibilities in addition to the Services to be provided
hereunder. Further, the Company hereby acknowledges that
Consultant does not guaranty the favorable results of any
activity performed by Consultant pursuant to this Agreement.
6. Duties and Conflicts. The Company recognizes that Consultant
has other business interests, activities and investments, some of
which may be in conflict or competition with the business of the
Company, and that Consultant is entitled to carry on such other
business interests, activities and investments during the Term.
Consultant may each engage in or possess an interest in any
other business or venture of any kind, independently or with others,
on his own behalf or on the behalf of other entities, with which
he is affiliated or associated, and Consultant may engage in
any activities, whether or not competitive with the Company,
without any obligation to offer any interest in such activities to
the Company and the Company shall not have any right, by
virtue of this Agreement, in or to such activities, or the income or
profits derived therefrom. In addition, the parties acknowledge
that nothing contained herein shall affect their ownership rights,
interests or title to any of their tangible and intangible property,
including any intellectual property, and nothing contained herein
shall cause or affect a transfer, assignment, sale or disposition
of such property.
7. Confidentiality. Consultant will obtain certain confidential and
proprietary information from the Company for the sole purpose
of performing his obligations under this Agreement, and the
Company is willing to provide such information to Consultant
for the limited purpose and under the terms and conditions
set forth herein:
(a) The terms of this confidentiality provision (the Confidentiality
Provision ) shall be for a period of three (3) years from the date
of execution of this Agreement.
(b) Definitions:
Trade Secrets include, but shall not be limited to, information
encompassed in all scientific research and development, related
scientific experimentation, sources of information, scientific
formulas, leads, drawings, designs, plans, flow charts, proposals,
marketing and sales plans, financial information, costs, pricing
information, and all concepts or ideas in or reasonably related to
the business of Company or a third party that have not previously
been publicly released and which give Company a competitive
advantage in the relevant industry;
Copyright means any claim to copyright protection in works of
authorship that describe any scientific research and design methods,
scientific procedures, calculations, formulas or research and
development prototypes, or programs, whether they are in machine
readable form, in English or any other language. The term shall not
be limited to the requirement of any notice as required in the United States
of America, but shall include that subject matter in its published
or unpublished form under the copyright statutes of the United
States, the Universal Copyright Convention, the Berne Convention,
and/or any other convention to which the United States is a signatory; and
Confidential Information includes all Trade Secrets and all Copyrighted
materials, as well as any scientific technology, research and development
diagrams, instruction manuals, scientific studies, technical
specifications, procedures, scientific formulas and all other
information that has been marked confidential or is known to be
proprietary, whether it has a copyright notice or a claim to copyright
thereon.
(c) Consultant acknowledges and agrees that Confidential
Information is a valuable asset of the Company and that any disclosure
or unauthorized use thereof will cause irreparable harm and loss to the
Company.
(d) In consideration of the disclosure to Consultant of Confidential
Information, Consultant agrees to treat Confidential Information in
confidence and to undertake the following additional obligations
with respect thereto:
(i) to use Confidential Information for the sole purpose of
performing his obligations under this Agreement;
(ii) not to disclose Confidential Information outside of the scope
of this Agreement;
(iii)to limit dissemination of Confidential Information to only
those of Consultant's employees who have a need to know to perform
the limited tasks set forth in item (a) above; and
(iv) to return Confidential Information and all documents, notes
or physical evidence thereof to the Company upon the expiration or
termination of this Agreement, a decision by Consultant not to
enter into this Agreement, a determination that Consultant no longer
has a need therefor, or a request therefor from the Company,
whichever occurs first, except that Consultant may retain one (1)
copy of such documents for his personal business records and files
so long as he advises the Company of said actions.
(e) The restrictions and obligations of this Confidential Provision
shall survive any expiration, termination or cancellation of this
Agreement and shall continue to bind Consultant, his successors,
heirs and assigns.
(f) Except as expressly set forth herein, no rights or licenses,
expressed or implied, are hereby granted to Consultant as a result
of or related to this Agreement.
(g) Any controversy or claim arising out of or related to this
Confidential Provision, or breach thereof, which cannot be resolved
by the parties hereto, shall be subject to arbitration under the rules
of the American Arbitration Association, requiring three arbitrators,
subject to arbitration in the County and State where the Company
normally shall conduct its business. The Consultant further agrees that the
award of the three appointed arbitrators shall be binding under Title IX
of the United States Code.
8. Effective Date, Term and Termination. This Agreement shall
take effect on November ___, 1999, and shall continue in effect for
ninety (90) days (the Term ).
9. Amendments. This Agreement may be amended or
modified only by written agreement of the parties.
10. No Assignment or Waiver. This Agreement is personal in
nature and may not be assigned, sold, pledged as security or
otherwise transferred, nor may any provision hereof be waived by
either party without the prior written consent of the other party.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal law, and not the law of
conflicts, of the State of Texas.
12. Notices. All notices given hereunder shall be considered as
properly given when delivered by hand or sent by first class
mail to the parties at the following addresses:
If to the Company:
Leapfrog Smart Products, Inc.
000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
If to Consultant:
Real Xxxxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Each party shall have the right to change its address for notice by
giving fifteen (15) days prior written notice thereof to the other
party hereto.
13. Captions. The captions of the sections herein are for convenience
of reference only and shall be accorded no substantive significance in the
construction hereof.
14. Binding Effect. This Agreement shall be binding upon and inure the
benefit of Consultant, the Company and their respective successors and
assigns. This Agreement or a similar agreement providing in substance
for the same Consultant fees and reimbursement rights to Consultant
and its Affiliates shall remain in effect upon any reconstitution and
continuation of the Company after a dissolution, merger or liquidation
of the Company.
15. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original but all of which
shall constitute one and the same instrument.
16. Authorization. The Company hereby represents that it has
received and has become duly authorized by all necessary corporate
action on behalf of such entity, including but not limited to the
proper approval by the Board of Directors of such entity, and that the
execution of this Agreement shall constitute a legal, valid and binding
obligation of the Company in accordance with its terms.
17. Limitation of Liability. In no event shall Consultant be liable to the
Company for any damages, including, without limitation, liability arising
out of contract, strict liability and tort for any consequential, incidental
or punitive loss, damages or expenses (including lost profits or savings).
18. Severability. If any of the terms and conditions of this
Agreement are held by any court of competent jurisdiction to contravene,
or to be invalid under, the laws of any political body having jurisdiction
over this subject matter, that contravention or invalidity shall not
invalidate the entire Agreement. Instead, this Agreement shall be
construed as reformed to the extent necessary to render valid the particular
provision or provisions held to be invalid, consistent with the original
intent of that provision and the rights and obligations of the parties
shall be construed and enforced accordingly, and this Agreement
shall remain in full force and effect as reformed.
19. No Third Party Beneficiary. Any agreement to pay an amount
or any assumption of liability herein contained, express or implied, shall
be only for the benefit of the undersigned parties and their permitted
successors and assigns, and such agreements and assumption shall
not inure to the benefit of the obligees of any other party,
whomsoever, it being the intention of the undersigned that no one
shall be deemed to be a third party beneficiary of this Agreement.
EXECUTED this day of November, 1999.
LEAPFROG SMART PRODUCTS, INC.
f/k/a ALBARA CORPORATION,
a Colorado corporation
__________________________________
By: Xxxxxxxx Xxxxxx
Its: CEO
__________________________________
By: Real Xxxxxxxxxx
Individual
