CONSULTING AGREEMENT
This Consulting Agreement, dated as of March 2, 2001, is between Xxxx
Xxxxxxx, a resident of the State of Maryland ("Consultant") and Xxxxx Group
Inc., a Delaware corporation with its usual place of business in (the
"Corporation") and is to the following effect.
WHEREAS, Consultant provides various Merger and Acquisition related
services to clients and has the capacity to perform such services and so-called
back office services; and
WHEREAS, both the Consultant and the Corporation intend to set forth
the terms and conditions of services provided, each to the other,
NOW, THEREFORE, in consideration of the mutual covenants, Agreements
and provisions hereof, Consultant and Corporation agree as follows:
1. ENGAGEMENT. The Corporation hereby retains Consultant and Consultant
agrees to provide Consulting services to the Corporation as follows:
Consultant agrees to perform such services for Corporation or
Corporation's Clients as are requested by Corporation to include
business and management advisory services as well as strategy
advisory services.
2. REPRESENTATION. Consultant represents and warrants that Consultant is duly
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qualified and expert in the field of the Corporation's business.
3. DUTIES. Consultant shall have duties as are assigned from time to time by
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the Corporation's President and/ or Board of Directors connecting
with services outlined above.
4. INDEPENDENT CONTRACTOR. All services to be performed by Consultant
----------------------- hereunder shall be performed in the capacity of an
independent contractor and Consultant shall not be an employee of the
Corporation by reason of this Agreement. Consultant shall be free to
dispose of such portion of Consultant's entire time, energy and skill
during regular business hours as Consultant shall determine. Consultant is
expressly permitted to be an employee, independent contractor or consultant
to other parties during the Term hereof. Consultant will be responsible for
making all required payments of federal and state income and unemployment
taxes, if any, as well as payments under the Federal Insurance
Contributions Act or Medical Contributions.
5. (a) CONFIDENTIALITY. The Consultant acknowledges that as a result of
Consultant's position with the Corporation, Consultant will have access to
the customer list, the product information, concepts and designs,
strategies, know-how and other proprietary information vital to the
profitability of the Corporation (the "Proprietary Assets or Trade
Secrets"). The Consultant acknowledges that it is the intention of the
Corporation to continue to develop, improve and market such valuable and
unique strategies, know-how, methods and other information. Such Trade
Secrets have or may become known to the Consultant as a consequence of the
Consultant's engagement or relationship with the Corporation. Trade Secrets
also include any proprietary, secret or confidential information which the
Consultant has acquired or may hereafter acquire during his engagement or
relationship the Corporation, including, but not limited to marketing and
business plans, information about the Corporation's customers, clients and
other business relationships, customer lists, methods and strategies and
documentation and ideas relating to the activities of the Corporation or
its clients. Furthermore, the Consultant acknowledges that the Proprietary
Assets of the Corporation are valuable, special, and unique assets of the
Corporation's business. Consultant understands that the Corporation has no
adequate remedy at law should Consultant breach the terms of this
paragraph. Thereof, in the event of a breach or threatened breach by the
Consultant of the provisions of this paragraph the Corporation shall be
entitled to injunctive relief restraining the Consultant from disclosing,
in whole or in part, the list of the Corporation's customers, or from
rendering any services to any person, firm, employer, association, or other
entity to whom such list or any other Proprietary Asset, in whole or in
part, has been disclosed or is threatened to be disclosed. Nothing herein
shall be construed as prohibiting the Corporation from pursuing any other
remedies available to the Corporation for such breach or threatened breach,
including the recovery of damages from the Consultant. The Corporation
shall be entitled to recover from Consultant the costs of enforcement of
this paragraph, including reasonable attorney's fees and court costs.
(b) NONDISCLOSURE AND NONUSE. The Consultant shall not, either during
Consultant's engagement or relationship by or with the Corporation or
at any time thereafter, use in any way or disclose the Corporation's
customer list or any other of the Proprietary Assets or any part
thereof to any person or entity for any reason or purpose whatsoever,
or in any way appropriate for Consultant's own benefit any of the
Proprietary Assets or any Trade Secrets except in connection with
Consultant's good faith efforts to promote the Corporation's business.
(c) USE AND RETURN OF DOCUMENTS. The Consultant shall (I) exercise all
precautions necessary to protect the integrity of all Proprietary
Assets or Trade Secrets and keep confidential all documents and
records embodying any part of any Proprietary Assets or Trade Secrets,
whether prepared by the consultant or others, and (II) will not copy
any such documents or records or remove any such documents or records
or copies thereof from the Corporation's premises. Upon termination of
Consultant's employment with the Corporation, the consultant shall
promptly deliver to the Corporation all documents and records
embodying any part of or relating to Proprietary Assets or Trade
Secrets, and any copies thereof, then in Consultant's possession or
under Consultant's control, whether or not on the premises of the
Corporation.
(d) COVENANT NOT TO COMPETE. The Consultant recognizes and acknowledges
that Consultant has developed a unique and valuable expertise in the
business of the Corporation or that of its clients and the Corporation
has agreed to enter into this Agreement and to offer engagement or
relationship, in direct reliance on the covenants and Agreements of
the Consultant contained in this Agreement. It is therefore agreed
that during Consultant's engagement or relationship by or with the
Corporation and for two years from the date of the termination of such
employment, for whatever cause or reason, the Consultant (a) shall
not, without the prior approval of the Corporation, alone or as a
member, consultant or agent of any partnership or as an officer,
agent, consultant, director, shareholder compete with any business or
activity currently or hereafter conducted by the Corporation or any
subsidiaries or affiliates (existing now or hereafter) of the
Corporation, and (b) shall not hire or entice or in any other manner
persuade or attempt to persuade any Consultant, independent
contractor, dealer, supplier, client or customer of the Corporation to
discontinue his, her or its relationship or violate any Agreement with
the Corporation as Consultant, independent contractor, supplier,
client or customer, as the case may be.
(e) WORK FOR HIRE. Consultant is a work for hire and hereby assigns and
sets over all designs, patents, copyrights, or other intellectual
property of or relating to the Proprietary Assets or Trade Secrets or
to the subject matters thereof or any other intellectual property
created by Consultant during the term of this Agreement
notwithstanding where conceived, intending that all such property is
that of the Corporation and shall be deemed Proprietary Assets.
6. COMPENSATION. The Corporation shall pay, and Consultant hereby accepts as
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full compensation for services rendered hereunder, the following:
(a) Consultants shall receive $10,000 in cash and/or stock at the
market price of stock at the end of each month.
The company will register an S-8 and a joint escrow account will be setup with
up to 1.4 Million shares.
(b) WARRANTS. The Corporation hereby grants to Consultant Warrants to
acquire the following number of shares:
(i) 150,000 shares at an exercise price of $0.15
(ii) 150,000 shares at an exercise price of $0.25
(iii) 100,000 shares at an exercise price of $0.375
(iv) 200,000 shares at an exercise price of $0.50
(v) 100,000 shares at an exercise price of $0.75
(vi) 300,000 shares at an exercise price of $1.00
Warrants can be exercised during contract and will be exercisable during life of
contract.
(c) ADDITIONAL SERVICES. for all back office services provided by
Corporation, fees shall be paid and determined consistent with
current policy and pricing of Corporation, unless otherwise
agreed in writing at the time of engagement.
7. REGISTRATION. As soon as practicable, the Corporation agrees to file a
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Registration Statement with the Securities and Exchange Commission on
Form S-8 with respect to the shares of Common Stock and Warrants
issued to Consultant pursuant to this Agreement.
8. TERMINATION. The Corporation may terminate this Agreement, with or
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without cause, on three (3) days written notice to the Consultant. In
the event this Agreement is terminated for any reason whatsoever, the
Consultant shall deliver immediately to the Corporation all
Corporation materials including, but not limited to, its price lists,
temporary personnel lists, supplies, equipment, checks, xxxxx cash,
and all their materials and records of any kind that may be in the
Consultant's possession or under his control, including any and all
copies of the foregoing. Upon breach hereof, the Consultant shall be
entitled to injunctive relief. If Corporation does not terminate
contract by June 2, 2001, contract will automatically terminate unless
both Consultant and Corporation agree to an extension. If an extension
is agreed upon, a new Consulting Agreement will be drafted to disclose
the terms of the extension.
9. WORKING FACILITIES. The Consultant shall be responsible for providing
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itself/himself/herself with such office facilities, secretarial and
other office personnel, and telephones and telephone service,
appropriate forms and invoices, and materials, supplies and equipment
as may be deemed necessary by the Consultant for the performance of
the services contemplated by this Agreement at no charge or cost to
the Corporation.
10. SEVERABILITY. If any provision of this Agreement or portion of such
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provision or any application thereof to any person or circumstances is
held invalid, the remainder of this Agreement (or the remainder of
such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
11. NONASSIGNABILITY. Consultant acknowledges that Corporation enters into
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this Agreement with Consultant personally because of Consultant's
special knowledge and expertise. Therefore, Consultant agrees not to
undertake to assign any of its duties hereunder. Any attempted
assignment shall be null and void and without further force or effect.
12. NOTICES. All notices given hereunder shall be in writing and effective
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when delivered or mailed (certified, return receipt requested) as
follows:
If to the Corporation, to it at: XXXXX GROUP INC.
00 XXXXXXX XX.
XXXX XXXXXXXX, XX 00000
If to the Consultant, by name at: XXXX XXXXXXX
000 XXXXXXX XXXXXX XX.
XXXXXX, XX 00000
A party may change its address by giving notice to the other
party pursuant to the foregoing procedure at least ten (10) days prior to the
effective date thereof.
13. GENERAL MATTERS.
(a) This Agreement shall be governed and construed by and in accordance
with the laws of the Commonwealth of Maryland.
(b) The heading of the sections of this Agreement have been inserted for
convenience and shall not modify, define, limit or expand the express
provisions of this Agreement.
(c) This document constitutes the entire Agreement of the parties as to
the subject matter hereof and may be amended except by a writing
executed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
/s/ Xxxxxx Xxxxxxxxxxx /s/ Xxxx X. Xxxxxxx
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XXXXXX XXXXXXXXXXX, PRESIDENT XXXX X. XXXXXXX
XXXXX GROUP INC.
