Contract
Exhibit
10.1
This
Consulting Agreement, dated effective October 1, 2007 (this “Agreement”), is
made and entered into by and among E-OIR Technologies, Inc., a Virginia
corporation (the “Company”) and Xxxxxx Xxxx (the “Consultant”).
ARTICLE
1 - SCOPE OF WORK
1.1 Services
- The
Company has engaged Consultant to provide services in connection with the
Company’s strategic initiatives with the US Army and other government and
commercial entities as the Company may from time to time reasonably request
(collectively, the “consulting services”).
1.2 Time
and Availability
- Consultant will devote up to 40 hours per month in performing
the services for the Company as stated herein. Consultant shall have
discretion in selecting the dates and times it performs such consulting services
throughout the month giving due regard to the needs of the Company’s
business. If the Company deems it necessary for the Consultant to
provide more than 40 hours in any month, Consultant is not obligated to
undertake such work unless Consultant is able to perform such additional
services and the Company pays Consultant $200 per hour for such additional
work
performed.
1.3 Confidentiality
- In order for Consultant to perform the consulting services,
it
may be necessary for the Company to provide Consultant with Confidential
Information (as defined below) regarding the Company’s business and
products. The Company will rely heavily upon Consultant’s integrity
and prudent judgment to use this information only in the best interests of
the
Company.
1.4 Standard
of Conduct
- In rendering consulting services under this Agreement,
Consultant shall conform to high professional standards of work and business
ethics. Except to perform the consulting services hereunder,
Consultant shall not use time, materials, or equipment of the Company without
the prior written consent of the Company. In no event shall
Consultant take any action or accept any assistance or engage in any activity
that would result in any university, governmental body, research institute
or
other person, entity or organization acquiring any rights of any nature in
the
results of work performed by or for the Company.
1.5 Outside
Services
- Consultant shall not use the service of any other person,
entity or organization in the performance of Consultant’s duties without the
prior written consent of an officer of the Company. Should the
Company consent to the use by Consultant of the services of any other person,
entity or organization, no information regarding the services to be performed
under this Agreement shall be disclosed to that person, entity or organization
until such person, entity or organization has executed an agreement to protect
the confidentiality of the Company’s Confidential Information (as defined below)
and the Company’s absolute and complete ownership of all right, title and
interest in the work performed under this Agreement.
1.6 Reports
-
Consultant shall on a monthly basis provide an activity report to the Company
setting forth the Consultant’s activities for the month and the amount of hours
worked. Upon the termination of this Agreement, Consultant shall,
upon the request of Company, prepare a final report of Consultant’s
activities.
ARTICLE
2 - INDEPENDENT CONTRACTOR
2.1 Independent
Contractor
- Consultant is an independent contractor and is not an
employee, partner, or co-venturer of, or in any other service relationship
with,
the Company. The manner in which Consultant’s services are rendered
shall be within Consultant’s sole control and discretion. Consultant
is not authorized to speak for, represent, or obligate the Company in any manner
without the prior express written authorization from an officer of the
Company.
2.2 Taxes
-
Consultant shall be responsible for all taxes arising from compensation and
other amounts paid under this Agreement, and shall be responsible for all
payroll taxes and fringe benefits of Consultant’s employees. Neither
federal, nor state, nor local income tax, nor payroll tax of any kind, shall
be
withheld or paid by the Company on behalf of Consultant or its
employees. Consultant understands that it is responsible to pay,
according to law, Consultant’s taxes and Consultant shall, when requested by the
Company, properly document to the Company that any and all federal and state
taxes have been paid.
2.3 Benefits
- Consultant and Consultant’s employees will not be eligible
for, and shall not participate in, any employee pension, health, welfare, or
other fringe benefit plan, of the Company. No workers' compensation
insurance shall be obtained by Company covering Consultant or Consultant’s
employees.
ARTICLE
3 - COMPENSATION FOR CONSULTING SERVICES
3.1 Compensation
-
The Company shall pay to Consultant $8,000.00 per month (for up to 40 hours
of
services per month) for services rendered to the Company under this Agreement.
A
written activity report shall be provided by the Consultant to the Company
with
each monthly invoice setting forth the Consultant’s activity. To the extent the
Consultant works more than 40 hours per month, the Consultant’s hours worked
shall be reflected in the written activity report submitted to the
Company. The Company agrees to pay Consultant $200 per hour for such
additional work performed. The monthly compensation shall be paid on the fifth
business day of the month following the Company’s receipt of the activity report
and the invoice. For avoidance of doubt, this Agreement does not cover any
services performed by Consultant for serving on the board of directors of
Technest Holdings, Inc. and Consultant should not commingle any compensation
or
expenses owed to him for such services in any activity report or monthly invoice
submitted to the Company for the consulting services performed under this
Agreement.
3.2 Reimbursement
-
The Company agrees to reimburse Consultant for all actual reasonable and
necessary expenditures, which are directly related to the consulting services
and reimbursable based on Company policy and FAR and DFARS regulations governing
allowable costs. These expenditures include, but are not limited to,
expenses related to travel (i.e. airfare, hotel, temporary housing, meals,
parking, taxis, mileage, etc.), telephone calls, and postal expenditure.
Expenses shall be provided as part of the monthly invoice and shall include
proper backup documentation for expenses. Documents include
itineraries, receipts, per diems based on the JTR, xxxxx://xxxxxxxxx0.xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxxxxxxxx.xxxx.
Expenses
shall be reimbursed by the Company at the same time as the monthly invoices
are
paid to the Consultant.
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ARTICLE
4 - TERM AND TERMINATION
4.1 Term
- This Agreement shall be effective as of October 1, 2007,
and
shall continue in full force and effect for 12 consecutive
months. The Company and Consultant may negotiate to extend the term
of this Agreement and the terms and conditions under which the relationship
shall continue.
4.2 Termination
- The Company may terminate this Agreement for “Cause,” after
giving Consultant written notice of the reason. Cause means: (1)
Consultant has breached the provisions of Article 5 or 7 of this Agreement
in
any respect, or materially breached any other provision of this Agreement and
the breach continues for 30 days following receipt of a notice from the Company;
(2) Consultant has committed fraud, misappropriation or embezzlement in
connection with the Company’ s business; (3) Consultant has been convicted of a
felony, or (4) Consultant’s use of narcotics, liquor or illicit drugs has a
detrimental effect on the performance of her employment responsibilities, as
determined by the Company.
4.3 Responsibility
upon Termination
- Any equipment provided by the Company to the Consultant in
connection with or furtherance of Consultant’s services under this Agreement,
including, but not limited to, computers, laptops, and personal management
tools, shall, immediately upon the termination of this Agreement, be returned
to
the Company.
4.4 Survival
-
The
provisions of Articles 5, 6, 7 and 8 of this Agreement shall survive the
termination of this Agreement and remain in full force and effect
thereafter.
ARTICLE
5 - CONFIDENTIAL INFORMATION
5.1 Obligation
of Confidentiality
- In performing consulting services under this Agreement,
Consultant may be exposed to and will be required to use certain “Confidential
Information” (as hereinafter defined) of the Company. Consultant
agrees that Consultant will not and Consultant’s employees, agents or
representatives will not, use, directly or indirectly, such Confidential
Information for the benefit of any person, entity or organization other than
the
Company, or disclose such Confidential Information without the written
authorization of the President of the Company, either during or after the term
of this Agreement, for as long as such information retains the characteristics
of Confidential Information.
5.2 Definition
-
“Confidential Information” means information, not generally known, and
proprietary to the Company or to a third party for whom the Company is
performing work, including, without limitation, information concerning any
patents or trade secrets, confidential or secret designs, processes, formulae,
source codes, plans, devices or material, research and development, proprietary
software, analysis, techniques, materials or designs (whether or not patented
or
patentable), directly or indirectly useful in any aspect of the business of
the
Company, any vendor names, customer and supplier lists, databases, management
systems and sales and marketing plans of the Company, any confidential secret
development or research work of the Company, or any other confidential
information or proprietary aspects of the business of the
Company. All information which Consultant acquires or becomes
acquainted with during the period of this Agreement, whether developed by
Consultant or by others, which Consultant has a reasonable basis to believe
to
be Confidential Information, or which is treated by the Company as being
Confidential Information, shall be presumed to be Confidential
Information.
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5.3 Property
of the Company
- Consultant agrees that all plans, manuals and specific
materials developed by the Consultant on behalf of the Company in connection
with services rendered under this Agreement, are and shall remain the exclusive
property of the Company. Promptly upon the expiration or termination
of this Agreement, or upon the request of the Company, Consultant shall return
to the Company all documents and tangible items, including samples, provided
to
Consultant or created by Consultant for use in connection with services to
be
rendered hereunder, including without limitation all Confidential Information,
together with all copies and abstracts thereof.
ARTICLE
6 - RIGHTS AND DATA
6.1 Data-All
drawings, models, designs, formulas, methods, documents and tangible items
prepared for and submitted to the Company by Consultant in connection with
the
services rendered under this Agreement shall belong exclusively to the Company
and shall be deemed to be works made for hire (the “Deliverable
Items”). To the extent that any of the Deliverable Items may not, by
operation of law, be works made for hire, Consultant hereby assigns to the
Company the ownership of copyright or mask work in the Deliverable Items, and
the Company shall have the right to obtain and hold in its own name any
trademark, copyright, or mask work registration, and any other registrations
and
similar protection which may be available in the Deliverable
Items. Consultant agrees to give the Company or its designees all
assistance reasonably required to perfect such rights.
ARTICLE
7 - CONFLICT OF INTEREST AND NON-SOLICITATION
7.1 Conflict
of Interest
– Consultant agrees to raise in a timely manner any potential
or
actual conflict of interest to the CEO of the Company for mutual
resolution.
7.2 Non-Solicitation
- Consultant covenants and agrees that during the term of this
Agreement, Consultant will not, directly or indirectly, through an existing
corporation, unincorporated business, affiliated party, successor employer,
or
otherwise, solicit, hire for employment or work with, on a part-time,
consulting, advising or any other basis, other than on behalf of the Company
any
employee or independent contractor employed by the Company while Consultant
is
performing services for the Company.
ARTICLE
8 - RIGHT TO INJUNCTIVE RELIEF
Consultant
acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are
reasonably necessary to protect the legitimate interests of the Company, are
reasonable in scope and duration, and are not unduly
restrictive. Consultant further acknowledges that a breach of any of
the terms of Articles 5, 6, or 7 of this Agreement will render irreparable
harm
to the Company, and that a remedy at law for breach of the Agreement is
inadequate, and that the Company shall therefore be entitled to seek any and
all
equitable relief, including, but not limited to, injunctive relief, and to
any
other remedy that may be available under any applicable law or agreement between
the parties. Consultant acknowledges that an award of damages to the
Company does not preclude a court from ordering injunctive
relief. Both damages and injunctive relief shall be proper modes of
relief and are not to be considered as alternative remedies.
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ARTICLE
9 - GENERAL PROVISIONS
9.1 Construction
of Terms
- If any provision of this Agreement is held unenforceable
by a
court of competent jurisdiction, that provision shall be severed and shall
not
affect the validity or enforceability of the remaining provisions.
9.2 Governing
Law -
This Agreement shall be governed by and construed in accordance with the
internal laws (and not the laws of conflicts) of the Commonwealth of
Virginia.
9.3 Complete
Agreement
- This Agreement constitutes the complete agreement and sets
forth the entire understanding and agreement of the parties as to the subject
matter of this Agreement and supersedes all prior discussions and understandings
in respect to the subject of this Agreement, whether written or
oral.
9.4 Dispute
Resolution
- If there is any dispute or controversy between the parties
arising out of or relating to this Agreement, the parties agree that such
dispute or controversy will be arbitrated in accordance with proceedings under
American Arbitration Association rules, and such arbitration will be the
exclusive dispute resolution method under this Agreement. The
decision and award determined by such arbitration will be final and binding
upon
both parties. All costs and expenses, including reasonable attorney’s
fees and expert’s fees, of all parties incurred in any dispute which is
determined and/or settled by arbitration pursuant to this Agreement will be
borne by the party determined to be liable in respect of such dispute; provided,
however, that if complete liability is not assessed against only one party,
the
parties will share the total costs in proportion to their respective amounts
of
liability so determined. Except where clearly prevented by the area
in dispute, both parties agree to continue performing their respective
obligations under this Agreement until the dispute is resolved.
9.5 Modification
-
No modification, termination or attempted waiver of this Agreement, or any
provision thereof, shall be valid unless in writing signed by the party against
whom the same is sought to be enforced.
9.6 Waiver
of Breach
- The waiver by a party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver
of
any other or subsequent breach by the party in breach.
9.7 Successors
and Assigns
- This Agreement may not be assigned by either party without
the
prior written consent of the other party; provided, however, that the Agreement
shall be assignable by the Company without Consultant’s consent in the event the
Company is acquired by or merged into another corporation or business
entity. The benefits and obligations of this Agreement shall be
binding upon and inure to the parties hereto, their successors and
assigns.
9.8 No
Conflict -
Consultant warrants that Consultant has not previously assumed any obligations
inconsistent with those undertaken by Consultant under this
Agreement.
IN
WITNESS WHEREOF, this Agreement is executed as of the date set forth
above.
E-OIR
TECHNOLOGIES, INC.
|
Xxxxxx
Xxxx
|
By:
/s/ Xxxxxx X.
Xxxxxx
|
By:
/s/ Xxxxxx
Xxxx
|
Its:
President
|
Its: ____________________________________
|
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