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Exhibit 10.3
RETAINER AGREEMENT
THIS RETAINER AGREEMENT, (the "Agreement") effective February 20, 2000
(the "Effective Date") is entered into by and between Xxxxxxx.xxx Corporation, a
Washington corporation (the "Company"), and The Xxxx Law Group, PLLC, a
Washington limited liability company, hereinafter the ("TOLG").
WHEREAS, the Company desires to retain TOLG and TOLG has consented to
provide various services and to otherwise be available to assist with Company
matters seven (7) days per week, twenty-four (24) hours per day.
NOW, THEREFORE, the Company and TOLG agree to the following terms and
conditions of the Agreement.
1. Retention. Beginning on the Effective Date, the Company will
retain TOLG, and TOLG will accept retention by the Company, and
TOLG shall also have an obligation to report to the Company's
Chief Executive Officer in accordance with the terms of this
Agreement.
2. Duties.
2.1 TOLG's primary duties will be to be available seven (7)
days per week, twenty-four (24) hours per day, to
provide advice and assistance to the Company and perform
such other reasonable duties as the Chief Executive
Officer of the Company determines.
2.2 As part of TOLG's duties and compensation hereunder,
TOLG will communicate, if requested, with those
representatives of the Company as determined by the
Company's Chief Executive Officer.
3. Time Obligations. If and when requested by the Company's Chief
Executive Officer, TOLG will devote whatever time is necessary
and use his best efforts to complete the duties set forth
herein.
4. Compensation. In connection with TOLG remaining available to
provide services under the terms of this Agreement, TOLG shall
receive cash compensation in the amount of three hundred
eighty-five thousand dollars ($385,000) (the "Retainer Amount"),
which cash compensation shall be deemed paid as of the Effective
Date. Further, TOLG shall continue to provide, and shall be paid
separately at the designated hourly
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rate on a monthly basis, for legal services relating to
corporate finance, securities, contracts, corporate governance,
mergers and acquisitions, other matters involving the Company's
operations, any securities issuance and compliance,
documentation preparation and review and identifying and
structuring transactions between the Company and appropriate
strategic partners including, without limitation, companies
involved in or otherwise benefiting from, the Company's
technology and/or products and related information. TOLG shall
also assist the Company in its efforts to develop its business
development and sales and marketing operations, complete certain
strategic goals and develop a business plan
5. Term and Termination.
5.1 Unless otherwise terminated, in writing, as provided in
this Section 5, this Agreement shall expire on February
19, 2003.
5.2 This Agreement shall be terminated, in writing, upon the
following:
(a) Dissolution of TOLG;
(b) Inability of TOLG to perform the duties set
forth herein for a period of thirty (30)
consecutive days in any one calendar year due to
sickness or of any principal of TOLG; or
(c) For cause as provided in Section 6.1.
5.3 TOLG shall be entitled to its entire Retainer Amount
regardless of whether termination (i) is with or without
cause by either the Company or TOLG, as the case may be
or (ii) occurs under this Section 5.
6. Cause and Breach.
6.1 Where reference is made in this Agreement to termination
being by the Company with or without cause, "cause"
shall mean cause given by the Company to TOLG and is
limited to the following:
(a) Repeated failure or refusal to carry out the
reasonable written directions of the Company,
provided such directions are consistent with the
duties and obligations herein set forth to be
performed by TOLG; or
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(b) Violation of a state or federal law involving
the commission of a crime against the Company or
a felony materially adversely affecting the
Company.
7. Notice. All notice and requests in connection with the Agreement
shall be in writing and may be given by personal delivery,
registered or certified mail, return receipt requested, telegram
or any other customary means of communications addressed as
follows:
Advisor: Xxxxx X. Xxxx, Esq.
The Xxxx Law Group
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxxxx.xxx
Corporation: Xxxxxx Xxxxx, CEO
Xxxxxxx.xxx Corporation
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Or to such other address as the party to receive the notice or
request shall designate by notice to the other. The effective
date of any notice or request shall be five (5) days from the
date which it is sent by the addressor by registered or certified
mail, or when delivered to a telegraph company, properly
addressed as above with charges prepaid, or when personally
delivered.
8. Assignment. The rights of either party shall not be assigned or
transferred either voluntarily or by operation of law without the
other party's written consent, nor shall the duties of either
party be delegated, in whole or part, either voluntarily or by
operation of law without the other party's written consent. Any
unauthorized assignment transfer or delegation shall be of no
force or effect.
9. Independent Counsel. TOLG also acts as counsel to the Company.
All parties have retained independent legal counsel to advise
them with respect to this Agreement and are not relying on the
Company or its counsel for legal or tax advise.
10. Independent Contractor. TOLG is an independent contractor. This
Agreement shall not create the relationship of employer and
employee, a partnership, or a joint venture. The Company shall
not control or direct the details and means by which TOLG
performs its business and services. TOLG shall determine the
number of days and hours of its work as well as
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the number of assistants, partners or employees utilized by TOLG
in its responsibilities under this Agreement. TOLG shall be
solely responsible for the amount of wages, benefits, work
schedules and/or any conditions of any of either TOLG's
assistants, partners or employees. Finally, TOLG is an
independent contractor and not an employee of the Company and
agrees to comply with all federal and state tax and Social
Security legislation as applicable to such independent
contractors. TOLG has no authority to bind the Company or incur
any obligation on behalf of the Company.
11. Confidential Information and Covenant. As a result of TOLG's
independent contractor relationship with the Company, TOLG could
acquire confidential information about the Company. TOLG will
respect the confidences of the Company and will not, at any
time, during or after termination of this Agreement, directly or
indirectly, divulge or disclose for any purpose whatsoever, or
use for their own benefit, any confidential information that has
been created or obtained by or disclosed to TOLG as a result of
his relationship with the Company, including but not limited to,
technology concepts or projects as they relate to the business
and technology developed by the Company. In addition, all
information created or received by TOLG shall be deemed the
property of the Company and no information shall be furnished to
persons not associated with this Agreement without prior
permission of the Company.
12. Miscellaneous.
12.1 Waiver. No waiver of any of the provisions of this
Agreement shall be valid unless in writing, signed by
the party against whom such waiver is sought to be
enforced, nor shall failure to enforce any right
hereunder constitute a continuing waiver of these same
or a waiver of any other right hereunder.
12.2 Amendments. All amendments of this Agreement shall be
made in writing, signed by the parties, and nor oral
amendment shall be binding on the parties.
12.3 Integration. This Agreement constitutes the entire
agreement between the parties relating to the subject
matter hereunto and supersedes and cancels any other
prior oral and/or written agreement or understandings of
the parties in connection with such subject matter
12.4 Severability. The enforceability or invalidity of any
provision or provisions of this Agreement shall not
render any other provision of provisions hereof
unenforceable or invalid. If any one or more of the
provisions of this Agreement shall for any reason be
excessively broad as to duration, scope, activity or
subject, it shall be construed by reducing
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such provisions, so as to be enforceable to the extent
compatible with applicable law.
12.5 Headings. The headings or titles in this Agreement are
for the purpose of reference only and shall not in any
way affect the interpretation or construction of this
Agreement.
12.6 Governing Law. This Agreement will be governed by the
laws of the State of Washington, applicable to
agreements between Washington residents to be performed
within the State of Washington. Any disputes arising out
of or from this Agreement shall be submitted to binding
arbitration for resolution in Seattle, Washington.
12.7 Attorney's Fees. In the event of litigation to enforce
this Agreement, the prevailing party will be entitled to
recover its reasonable attorneys' fees as determined by
the court.
IN WITNESS HEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE XXXX LAW GROUP, P.L.L.C.
By:
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Name:
Title:
XXXXXXX.XXX CORPORATION
By:
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Name:
Title:
