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EXHIBIT 10.21
CONSULTING AGREEMENT
THIS AGREEMENT made as of this 17th day of July, 2000, by and between
xXxxxxx.xxx, Inc., a corporation organized and existing under and by virtue of
the laws of the State of Delaware (the "Company") and Xxxxxx X. Xxxxxxxx (the
"Consultant").
WHEREAS, the Company desires to retain Consultant to provide specified
consulting services and Consultant desires to be retained to provide such
services under the terms and conditions set forth in this Agreement:
W I T N E S S E T H:
Section 1. APPOINTMENT. The Company hereby retains Consultant to
provide advice and consultation with respect to (a) the development of an
information technology consulting business (the "Business"), (b) the
establishment of an office in Houston, Texas (the "Houston Office") to provide
information technology consulting services, (c) the identification and
solicitation of potential employees of the Company to staff the Houston Office
and (d) such other matters related to the foregoing as the Company may
reasonably request.
Section 2. COMPENSATION.
(a) In consideration of all services to be performed by
Consultant hereunder, the Company shall pay Consultant at the rate of
Ten Thousand Eight Hundred Twenty-Nine Dollars ($10,829) per month on
the last business day of each month this Agreement is in effect
beginning on the last business day of the month immediately succeeding
the date of the signing of this Agreement (the "Payment"). For the
month of July 2000 or in the event that this Agreement terminates for
any reason and the Consultant is entitled to be paid for services
rendered for a period of less than one month, then the Company shall be
obligated to pay a pro-rata portion of the $10,829 monthly fee based
upon the number of days of service rendered.
(b) In the event that during the term of this Agreement the
Houston Office (i) generates gross revenues of not less than $135,000
per month, (ii) achieves a gross profit margin of 36% or more after
taking into account a $26,000 general administrative expense to be
charged to the Business by the Company, the Consultant shall be
entitled to fifty percent (50%) of the net income attributable to the
Business of the Houston Office for such month but in no event shall
such additional compensation exceed $16,500 for any one month or
$82,500 in the aggregate. To the extent that the net income
attributable to the Business of the Houston Office for any month during
the term of this Agreement (including amounts carried over pursuant to
this sentence) exceeds $33,000, such excess shall be carried over and
be deemed net income in the next succeeding month. The additional
compensation payable under this Section 2(b) shall be payable on the
last day of the month following the month in which the requirements set
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forth in this Section 2(b) are met. Except as indicated above, the
determination of gross profit and net income shall be made in
accordance with generally accepted accounting principles.
(c) It is understood and agreed by and between the parties
hereto that the compensation set forth in this Agreement constitutes
the entire compensation due from the Company to Consultant for the
services performed by Consultant hereunder and Consultant does not now
have nor will he in the future have any right to any further
compensation whether by way of contingencies or otherwise arising out
of the rendering to the Company of the services set forth in this
Agreement unless approved by the Company's Board of Directors;
(d) Any compensation paid to Consultant hereunder shall be
payable without deduction for federal or state income taxes or for
social security payments.
Section 3. TERM AND TERMINATION.
(a) This Agreement shall be effective as of July 17, 2000 and
shall remain in full force and effect until November 30, 2000 unless
sooner terminated as provided herein;
(b) Either party shall have the right to terminate this
Agreement at any time upon written notice in the event the other party
shall commit a breach of any of the terms of this Agreement;
(c) Either party shall have the right to terminate this
Agreement at any time upon fourteen (14) days written notice to the
other party.
Section 4. ASSIGNMENT. This Agreement may not be assigned by Consultant
nor may Consultant's duties hereunder be delegated, the services to be rendered
hereunder being of a personal nature.
Section 5. INDEPENDENT CONTRACTOR. Nothing contained in this Agreement
shall be construed as appointing Consultant as an agent or employee of the
Company, it being expressly agreed and understood that in rendering the services
hereunder, Consultant shall at all times act as an independent contractor. The
Company shall carry no Workers' Compensation insurance to cover Consultant. The
Company shall not pay any contribution to Social Security, unemployment
insurance, federal or state withholding taxes, nor provide any other
contributions or benefits which might be expected in an employer-employee
relationship. Consultant agrees to report and pay any contributions for taxes,
unemployment insurance, Social Security and any and all other benefits for
himself.
Section 6. CONFIDENTIALITY.
(a) Consultant hereby agrees that during the term of this
Agreement and for a period of three (3) years following the termination
of this Agreement, he will not disclose, cause to be disclosed, or
otherwise allow any Confidential Information (as hereinafter defined)
to come into the possession of any person or entity, without the
written consent of the Company, whether such information is on or in
the Company's documents, records, forms, memos, computer disks or tape,
or otherwise, and whether the Confidential Information is in written,
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verbal or electronic form. Consultant's obligation to keep confidential
all Confidential Information does not apply to any portions of the
Confidential Information which, without breach of any obligation to the
Company hereunder, is required to be disclosed by court order. If
Consultant believes that any Confidential Information may have to be
disclosed as a result of a court order, the Consultant will contact the
Company as soon as possible prior to such disclosure, and any failure
to so contact the Company shall be a breach of Consultant's obligations
hereunder.
(b) "Confidential Information" means (i) all notes, analyses,
compilations, studies, or other documents which are prepared by
Consultant or given to Consultant in performance of his duties under
this Agreement, and (ii) any written or oral information, data and/or
materials pertaining to the Company's strategic focus, products,
processes, customers, supplies, operations and services including
information relating to research and development, inventions,
manufacturing and purchasing.
(c) The obligation of confidence assumed by Consultant
hereunder shall not apply to information:
(i) which at the time of disclosure is in the public
domain; or
(ii) which after disclosure thereafter lawfully
becomes a part of the public domain other than through
disclosure by Consultant or through Consultant; or
(iii) which is lawfully disclosed to Consultant by a
third party not under an obligation of confidence to the
Company with respect to said information.
Section 7. DUTY OF LOYALTY. Consultant shall disclose promptly to the,
any and all technology consulting opportunities and acquisition opportunities
brought to the attention of or conceived or created by Consultant during the
term of this Agreement and related to the business or activities of the Company.
Section 8. NON-COMPETITION. Except pursuant to the advance written
consent of the Company, the Consultant covenants and agrees with the Company
that during the term of this Agreement and for a period of sixty days after the
termination of this Agreement neither the Consultant nor any Controlled
Affiliate (as hereinafter defined) shall, whether on his or its own behalf or on
behalf of any other person, firm, partnership, corporation or other business
venture (hereinafter, a "person"), own, manage, control, participate in, consult
with, be employed by, render services for or otherwise assist in any manner any
person that is engaged in, any Competitive Business Activity (as hereinafter
defined). Further, except pursuant to the advance-written consent of the Company
and without limiting the quality of the other provisions of the Agreement,
Consultant agrees that neither he nor any Controlled Affiliate shall, whether on
his or its own behalf or on behalf of any other person, commercially exploit or
otherwise use for any purpose any of the information, written or oral, acquired
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by him in the course of rendering services to the Company and that neither he
nor any Controlled Affiliate shall provide such information to or otherwise
compete with any such person in the commercial exploitation or other use of such
information.
(a) Nothing in this Agreement shall prohibit the Consultant or
any Controlled Affiliate from being an owner of not more than 5% of the
equity or debt securities of any public company, so long as the
Consultant has no active participation (other than exercising voting or
consensual rights with respect to such interest of up to 5%) in the
business of such public company.
(b) As used herein, "Controlled Affiliate" of Consultant means
any member of the Consultant's immediate family and any other person or
entity which, directly or indirectly, is at any time, controlled by the
Consultant. For purposes of this definition, "control" of a person or
entity means the power, direct or indirect, to cause the direction of
the management and policies of such person, whether by contract or
otherwise.
(c) As used herein: "Competitive Business Activity," with
respect to any person, means information technology consulting services
and the contract placement of consultants to provide such services.
SECTION 9. BINDING EFFECT. This Agreement shall inure to the benefit of
the Company and its successors and assigns and be binding upon Consultant and/or
Consultant's heirs, executors, administrators or other legal representatives;
SECTION 10. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties and hereby supercedes any and all other
arrangements, agreements and understandings between the parties, whether oral or
written concerning the subject matter hereof.
SECTION 11. GOVERNING LAW. The validity of this Agreement and the
interpretation and performance of all of its terms shall be governed by the
substantive laws of the State of New Jersey.
SECTION 12. BUSINESS EXPENSES. Consultant shall be reimbursed for all
reasonable business expenses incurred by Consultant during the term of the
Agreement on behalf of the Company in the performance of services for the
Company. Consultant is required to submit itemized requests for reimbursement of
such expenditures supported by sufficient documentation of the expenditures and
explanation of their purpose.
SECTION 13. WAIVER. Failure of either party hereto to insist upon
strict compliance with any of the terms, covenants and conditions hereof shall
not be deemed a waiver or relinquishment of any similar right or power hereunder
at any subsequent time or of any other provision hereof.
SECTION 14. SURVIVAL OF PROVISIONS. In the event that any provision,
term or condition of this Agreement is invalid or unenforceable as written but
may be rendered valid and enforceable by limitation thereof, then such provision
shall be construed as valid and enforceable to the maximum extent permitted by
applicable law. The provisions of Sections 6, 7 and 8 of this Agreement shall
survive the termination of this Agreement or the termination of services being
provided by the Consultant of the Company.
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SECTION 15. NOTICE. Any notice required or permitted to be given
hereunder shall be given either by personal delivery or by registered mail, by
air if to a different country, return receipt requested, to the appropriate
party at the following address or to such other address as the parties may
hereafter communicate to each other in writing; it being understood that such
notice shall be deemed given as of the date so delivered or mailed:
To: Company xXxxxxx.xxx, Inc.
000 00xx Xxxxxx, Xxxxx X
Xxxx Xxxxx, XX 00000
Copy to: Xxxxxx, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
To Consultant: Xxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have hereunto set their hands as of
this day and year first above written.
xXxxxxx.xxx, Inc.
By:
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Xxxxxxx X. Xxxx, President
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Xxxxxx X. Xxxxxxxx
Consultant
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