Exhibit 10.8
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (hereinafter referred to as "Agreement") is
made and entered into effective as of January 1, 2000, by and between
xxxxxxxxxxx.xxx inc. ("CSI"), a Michigan corporation, and Xxxxxx Xxxxx
(hereinafter referred to as the "Consultant").
W I T N E S S E T H:
WHEREAS, CSI has developed and operates a system which enables
advertisers to advertise their products, and issue coupons, gift certificates,
rebates certificates and other certificates, via the internet and/or an online
service (the "Business"); and
WHEREAS, Consultant was an employee of CSI and voluntarily terminated
his employment with CSI effective December 31, 1999; and
WHEREAS, Consultant is familiar with CSI and the operation of its
Business; and
WHEREAS, CSI is desirous of engaging Consultant for use of
Consultant's services:
NOW THEREFORE, in consideration of the mutual covenants, promises,
representations and warranties contained herein, and for other valuable
consideration, the adequacy, sufficiency and receipt of which is hereby
acknowledged and agreed, the parties hereto hereby agree as follows:
1. Scope of Agreement. This Agreement shall apply to all services
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provided by Consultant to CSI, as such services are from time to time requested
by CSI.
2. Independent Contractor Agreement. It is specifically agreed and
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understood that in performing the services herein specified, Consultant is
acting as an independent contractor and not as an agent or employee of CSI.
Further, nothing contained in this Agreement shall be construed to create the
relationship of principal and agent, partnership, joint venture or any other
relationship between the parties hereto other than the relationship of
independent contractors.
3. Consultant's Services/Authority. Consultant shall perform any
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and all services reasonably requested by CSI in the development or operation of
the Business, provided however, that in no event shall such time requirement
exceed twenty five (25) hours per week. Consultant shall have no authority to
execute contracts for or on behalf of CSI or otherwise to bind CSI to any legal
obligation.
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4. Term. This Agreement shall have a term of one (1) year from the
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effective date hereof. CSI shall be permitted to terminate this Agreement at
any time for just cause by tendering thirty (30) days prior written notice of
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such termination and the reasons for same to Consultant. "Just Cause" as used
herein shall, by way of example, include but not be limited to: incompetence,
insubordination, misconduct, poor attendance, breach of any representation and
warranty set forth in the Termination Agreement by and between Consultant and
CSI dated December 30, 1999, conviction of a crime that: (a) has a direct or
indirect financial impact on CSI's business, (b) interferes with the
relationship with any customer, supplier, or other party with which CSI does
business, or (c) may cause embarrassment or bring negative publicity to CSI;
misfeasance, malfeasance, or otherwise failing to adhere to those standards of
job performance established from time to time by CSI (in the exercise of its
reasonable discretion and business judgment). In the event that Consultant (a)
neglects or poorly performs the duties assigned to Consultant by CSI, or (b) has
poor work attendance, CSI shall first advise Consultant, in writing, of
Consultant's actions or omissions, which CSI believes constitutes just cause.
Thereafter, CSI shall extend to Consultant a reasonable period of time, as
determined in the sole and uncontrolled discretion of CSI, in which Consultant
shall be afforded an opportunity to cure same. In the event that Consultant
fails to timely cure his performance to the reasonable satisfaction of CSI
within the time period set forth in such notice, then CSI may terminate
Consultant's services hereunder. Except for the notice requirement explicitly
referenced in the preceding three (3) sentences, no notice or cure period shall
be required with respect to any other basis for just cause termination
hereunder.
5. Consideration. In consideration for the services and other
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covenants to be performed by Consultant pursuant to this Agreement, CSI shall
pay Consultant a yearly consulting fee in the amount of One Hundred Twenty
Thousand and 00/100 ($120,000.00) Dollars payable bi-weekly in equal
installments. Provided, however, that if Consultant shall perform more than One
Thousand Three Hundred (1,300) hours of services during the initial term hereof,
Consultant shall be compensated at the rate of One Hundred and 00/100 ($100.00)
Dollars per hour for services provided in excess of 1,300 hours during such
initial term. CSI shall reimburse the Consultant for all travel and other
related expenses which are reasonably necessary for Consultant to incur while
providing services to CSI under this Agreement and which have been approved in
advance by an authorized representative of CSI. Consultant shall submit accurate
invoices for all services rendered and all duly authorized expenses which have
been incurred. CSI shall pay the amounts due thereunder within thirty (30) days
of the receipt of such invoices and any reasonably requested back up therefor.
6. Medical Insurance. During the term hereof and only to the
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extent allowable under the medical insurance plan from time to time covering
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CSI's employees ("Medical Plan"), CSI hereby agrees to provide medical
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insurance benefits to Consultant upon the terms and conditions set forth in the
Medical Plan from time to time. Upon the expiration or termination of this
Agreement, or the inability of CSI to provide medical insurance coverage,
Consultant will be eligible for COBRA benefits as allowed pursuant to applicable
law. In the event that during the term of this Agreement, CSI is unable to
reasonably provide the medical insurance benefits to Consultant and the medical
Plan from time to time in existence, then CSI shall pay to Consultant, on a
monthly basis, an amount equal to the cost of his COBRA benefits, as allowed
pursuant to applicable law, plus an amount equal to the income tax payable by
Consultant which is attributable
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to the inclusion of such Cobra benefits' amount in Consultant's gross income.
7. Confidential Information.
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A. CSI Information. Consultant agrees at all times during the term
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hereof and thereafter, to hold in strictest confidence, and not to use, except
for the benefit of CSI, or to disclose to any person, firm or corporation
without written authorization of CSI, the Confidential Information of CSI.
Consultant understands that "Confidential Information" means any CSI proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, marketing plans, products, services,
customer lists and customers (including, but not limited to, customers of CSI on
whom Consultant may call or with whom Consultant becomes more acquainted during
the term of this Agreement or has become acquainted during any prior period in
which he performed services for CSI), software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, financial or other business information
disclosed to Consultant by CSI either directly or indirectly in writing,
electronically, orally or by drawings or observation of parts or equipment prior
to or after the commencement of this Agreement.
In light of the highly competitive nature of the industry in which CSI
conducts its business, Consultant agrees that all Confidential Information
heretofore or in the future obtained by the Consultant as a result of the
Consultant's association with CSI shall be considered confidential. In
recognition of this fact, the Consultant agrees that he will not, except in the
performance of his duties under this Agreement or except as otherwise provided
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herein, during and after the execution of this Agreement, disclose any of such
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Confidential Information to any person or entity for any reason or purpose
whatsoever and he will not make use of any Confidential Information for his own
purposes or for the benefit of any person or entity (except CSI) under any
circumstances. The provisions contained in this paragraph shall also apply to
information obtained by Consultant with respect to any subsidiary of or company
otherwise affiliated with CSI.
In the event that Consultant is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, any informal or formal investigation by any government or
governmental agency or authority or otherwise) to disclose any of the
Confidential Information, Consultant will notify CSI promptly in writing so that
CSI may seek a protective order or other appropriate remedy or, in CSI's sole
discretion, waive compliance with the terms of this Agreement. Consultant agrees
not to oppose any action by CSI to obtain a protective order or other
appropriate remedy. In the event that no such protective order or other remedy
is obtained, or that CSI waives compliance with the terms of this agreement,
Consultant will furnish only that portion of the Confidential Information which
Consultant is advised in writing by counsel that he is legally required to
furnish and will exercise his reasonable best efforts, at CSI's expense, to
obtain reliable assurance that confidential treatment will be accorded to the
Confidential Information.
B. Former Employer Information. Consultant agrees not to
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improperly use or disclose any proprietary information or trade secrets of any
former or concurrent employer or other person or entity or trade secrets of any
former or concurrent employer or other person or
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entity, and Consultant will not bring on the premises of the CSI any unpublished
document or proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or entity.
C. Third Party Information. Consultant recognizes that CSI has
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received and in the future will receive from third parties their confidential or
proprietary information (such as, but not limited to, Member information and
software programs provided by license) subject to a duty on CSI's part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except as necessary in carrying out Consultant
work for CSI consistent with CSI's agreement with such third party. Consultant
agrees to comply with CSI's policies and procedures, as applicable from time to
time with respect to such information.
D. Competing Business. In order to further protect the
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confidentiality of the Confidential Information and in recognition of the highly
competitive nature of the industries in which CSI conducts its business, and for
the consideration set forth in Sections 5 and 6 herein, Consultant further
agrees as follows:
(i) for the period commencing on the date hereof and ending on the
second anniversary of the effective date of Termination of this
Consulting Agreement (as hereinafter defined) (the "Preservation
Period"), Consultant will not, directly or indirectly engage in any
Business Activities (as hereinafter defined), other than on behalf of
CSI, whether such engagement is as an officer, director, proprietor,
employee, partner, investor (other than as a holder of less than 3% of
the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise, in any geographic area in
which the products or services of CSI have been distributed or
provided by CSI during the period commencing two years prior to the
date hereof and ending on the effective date of Termination of this
Consulting Agreement.
As used in this Agreement: "Business Activities" shall mean the
providing of marketing services directly to consumers over the
Internet, including but not limited to, the distribution of coupons,
saving notices, gift certificates and other promotional incentives;
and "Termination of this Consulting Agreement" shall mean: (x) the
expiration of this Consulting Agreement; or (y) any termination of
this Consulting Agreement in accordance with the terms of this
Consulting Agreement, prior to the expiration of the term then in
effect under this Consulting Agreement, by either Consultant or CSI;
whichever occurs first.
(ii) Consultant will not, during the Preservation Period, directly or
indirectly engage in any activities, provide any services or supply
any products (other than on behalf of CSI) which would constitute
Business Activities to any company or customer with whom CSI has done
any business during the period commencing two years prior to the date
hereof and ending on the effective date of Termination of this
Consulting Agreement, whether as an officer, director, proprietor,
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employee, partner, investor (other than as a holder of less than 3% of
the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise.
(iii) Consultant will not, during the Preservation Period, directly
or indirectly assist others in engaging in any of the Business
Activities in the manner prohibited to Consultant.
(iv) Consultant will not, during the Preservation Period, directly
or indirectly induce employees of CSI or any of its subsidiaries to
engage in any activities hereby prohibited to CSI or to terminate
their employment.
It is expressly understood and agreed that although Consultant and CSI
consider the restrictions contained in each of clauses (i) through (iv)
above to be reasonable for the purpose of preserving the goodwill,
proprietary rights and going concern value of CSI, if a final judicial
determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in this Section 7 is an
unenforceable restriction on the activities of Consultant, the provisions
of this Section 7 shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such other extent as
such court may judicially determine or indicate to be reasonable.
Alternatively, if the court referred to above finds that any restriction
contained in this Section 7 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other
restrictions contained therein or the availability of any other remedy.
8. Inventions
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A. This Section 8 does not apply to an invention for which no equipment,
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supplies, facility or trade secret of CSI was used and which was developed
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entirely on Consultant's own time, and (1) which does not relate (a) to the
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business of CSI or (b) to CSI's actual or demonstrably anticipated research or
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development, or (2) which does not result from any work performed by Consultant
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for CSI.
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B. Consultant agrees to fully and promptly disclose to CSI all Inventions
(the word "Inventions", as used in this Agreement, shall include Inventions,
discoveries, improvements, ideas, conceptions, developments and designs, whether
or not patentable, tested, reduced to practice, subject to copyright or other
rights or forms of protection, or relating to data processing communications,
computer software systems, programs and procedures) which Consultant may make,
conceive, discover, develop or reduce to practice, either solely or jointly with
others, during the term of this Agreement or during any prior period in which
Consultant performed services for or on behalf of CSI, whether or not during
usual working hours, which relate to, result from or are suggested by any
activities of CSI which Consultant is exposed to or any work Consultant may do
or have done for CSI. Consultant agrees that all such Inventions shall be and
remain the sole and exclusive property of CSI, and Consultant agrees to assign,
and hereby assigns, all Consultant's right, title and interest in and to any
such Inventions to CSI.
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C. Consultant agrees to fully and promptly disclose to CSI, in
confidence, all Inventions which Consultant may make, conceive, discover,
develop or reduce to practice, either solely or jointly with others, during the
term hereof, whether or not during usual working hours, for review by CSI to
determine whether such Inventions are subject to Section 7.B. hereof.
D. Consultant agrees to fully and promptly disclose and offer to CSI all
Inventions which Consultant may make, conceive, discover, develop or reduce to
practice, either solely or jointly with others, within one (1) year after the
last date that Consultant performs services for or on behalf of CSI, which
relate to, result from, are suggested by or based on (a) confidential
information of CSI to which Consultant had access during the term hereof, or (b)
activities of CSI to which Consultant was exposed or work Consultant did for
CSI. At the request of CSI, Consultant agrees to assign to CSI, Consultant's
entire right, title and interest in and to such Inventions and agrees to execute
and deliver all documents as CSI shall deem necessary and desirable to obtain
Letters Patent, Utility Models, Inventor's Certificates, Copyrights or other
appropriate legal rights of the United States and foreign countries as CSI may,
in its sole discretion, elect and to vest title thereto in CSI, its successor,
assignees or nominees.
E. Consultant agrees to assist CSI, or its designee, at CSI's expense in
every proper way to secure CSI's rights in the Inventions and any copyrights,
patents or other intellectual property rights relating thereto in any and all
countries, including the disclosure to CSI of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments (including, but not limited to Letters
Patent, Utility Models, Inventor's Certificates, Copyrights, Trademarks, etc.),
which CSI shall deem necessary in order to apply for and obtain such rights and
in order to assign and convey to CSI, its successors, assigns and nominees, the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Consultant agrees that the obligations to execute or cause to
be executed, when it is in Consultant's power to do so, and such instrument or
papers shall continue after the expiration or termination of this Agreement. If
CSI is unable to secure Consultant's signature due to mental or physical
incapacity or if Consultant is otherwise unavailable or unable to sign or to
apply for or pursue any Inventions or original works of authorship assigned to
CSI as above, then Consultant hereby irrevocably designates and appoints CSI and
its duly authorized officers and agents as Consultant's agent and attorney in
fact, to act for and in Consultant's behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letter patent or copyright resignations thereon with
the same legal force and effect as if executed by Consultant.
F. This agreement shall not embrace or include Inventions, applications
for and/or Letters Patent owned or controlled by Consultant prior to the date
Consultant first provided services to CSI as an Consultant ("Prior Inventions"),
all of which, if any, are fully identified on Exhibit "A" attached hereto, and
if no Exhibit "A" is attached, Consultant represents that there are no Prior
Inventions. If Consultant shall incorporate a Prior Invention into any CSI
software, product, process or machine, Consultant hereby grants to CSI a non-
exclusive, royalty free, irrevocable, perpetual, worldwide license to make, have
made, modify, use and sell such Prior Invention as part of or in connection with
such CSI software, product, process or machine.
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Consultant represents that Consultant is under no disability and has no
undisclosed obligation by reason of prior employment or otherwise, which might
in any way affect his ability to perform all of his obligations under this
agreement.
9. Returning Company Documents. Consultant agrees that, at such
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time as Consultant is no longer providing services to CSI, or at the expiration
of this Agreement, whichever shall first occur, Consultant will deliver to CSI
(and will not keep in possession, recreate or deliver to anyone else) any and
all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items developed by
Consultant pursuant to this Agreement or otherwise belonging to CSI, its
successors or assignees.
10. Solicitation of Employees. Consultant agrees that during the
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period that Consultant is performing services for CSI, and for a period of
twelve (12) months immediately thereafter, Consultant shall not induce or
influence, or seek thereto, any person who is engaged as an employee, agent,
Consultant, or otherwise by CSI to terminate his or her engagement with CSI or
to engage or otherwise participate in business activity directly or indirectly
competitive with CSI's business.
11. Relief. Consultant agrees that it would be impossible or
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inadequate to measure and calculate CSI's damages from any breach of the
covenants set forth in Sections 7, 8 and 9 herein. Accordingly, Consultant
agrees that upon breach of any of such Sections, CSI will have available, in
addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such breach of
threatened breach and to specific performance of any such provision of this
Agreement. Consultant further agrees that no bond or other surety shall be
required to obtain such relief and Consultant hereby consents to the issuance of
such injunction and to any order of specific performance.
12. Severability. If any provision of this Agreement is held
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invalid by any tribunal in a final decision from which no appeal is or can be
taken, such provision shall be deemed modified to eliminate the invalid element,
and, as so modified, such provision shall be deemed a part of this Agreement. If
it is not possible to modify any such provision to eliminate the invalid
element, such provision shall be deemed eliminated from this Agreement. The
invalidity of any provision of this Agreement shall not affect the force and
effect of the remaining provisions.
13. Captions. The captions or headings in this Agreement are for
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convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement and the same shall not be deemed or
construed to affect the meaning or interpretation of this Agreement.
14. Notices. Except as may otherwise be provided in this Agreement,
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any notices required by or submitted in connection with the terms and conditions
of this Agreement shall be in writing and be deemed effective upon the first to
occur of: actual receipt; confirmation of facsimile transmission; or three (3)
days after deposit in the U.S. mail, certified mail, return receipt requested,
and addressed as follows:
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CSI: Consultant:
0000 Xxxx Xxxxxxx Xxxx Xxxxxx Xxxxx
Xxxxx 000 000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx 00000
Any party hereto may change its address for the purposes of this paragraph by
tendering notice of such change of address to the other party in the manner
herein provided for giving notice.
15. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Illinois. Consultant
expressly consents to the personal jurisdiction of the state and federal courts
located in the State of Illinois for any lawsuit filed there by CSI arising from
or relating to this Agreement.
16. Execution of Documents. Each of the parties hereto shall use
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its best efforts and take any and all action reasonably necessary, including,
but not limited to, upon request of the other, execution of any and all
documents necessary, to effectuate the intent and provisions of this Agreement.
17. Amendments and Modifications. This Agreement may not be amended,
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changed, modified or altered except in writing signed by both of the parties
hereto, nor may any rights of either of the parties be waived except in writing
signed by Consultant and the President or Chairman of CSI.
18. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties hereto and shall be deemed to supersede and cancel
any other agreements between the parties relating to the transactions herein
contemplated. None of the prior and/or contemporaneous negotiations, preliminary
drafts, or prior versions of this Agreement leading up to its execution and not
set forth herein shall be construed to, or otherwise affect the validity of this
Agreement. Each party acknowledges that no representation, inducement or
condition not set forth herein has been made or relied upon by either party.
19. Draftsmanship. Each of the parties hereto has been represented
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by counsel in negotiating this Agreement, and the parties agree that there shall
be no presumption favoring or burdening any one or more parties hereto based
upon draftsmanship. Whenever necessary in this agreement the context would
permit, the singular term and the related pronoun shall include the plural, the
masculine and the feminine terms.
20. Assignment. This Agreement is for the personal services of
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Xxxxxx Xxxxx only, and not for any other individual or entity or of any other
entity which currently employs, or has employed, Xxxxxx Xxxxx. As such, this
Agreement is not assignable by Consultant under any circumstances whatsoever and
Consultant hereby agrees that this restriction is reasonable in view of the
special nature of the services to be performed by him (including but not limited
to, the existence and use of his business contacts).
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21. Successors. This Agreement shall be binding upon and the
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benefits thereof, shall inure to the parties hereto and their respective legal
representatives, heirs, successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the day and year above set forth.
Witnesses: "CSI"
xxxxxxxxxxx.xxx inc., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________ ____________________________________
Its: CEO
_____________________________ ___________________________________
"CONSULTANT"
By:/s/ Xxxxxx Xxxxx
_____________________________ ____________________________________
Xxxxxx Xxxxx
_____________________________
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EXHIBIT "A"
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Except as listed below, Consultant certifies that there are no Prior
Inventions (as such term is defined in the Independent Contractor Agreement):
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
CONSULTANT
By: /s/ Xxxxxx Xxxxx
__________________________
Xxxxxx Xxxxx
Dated: December 30, 1999
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