EXHIBIT 10.26
CONSULTING AGREEMENT
This agreement (this "Agreement") dated as of August 4, 2004, sets forth the
terms and conditions upon which ISIS Capital Management, LLC (the "Consultant")
will provide certain services to Warp Technology Holdings, Inc. (the "Company").
NOW, THEREFORE, in consideration of the above, the promises contained herein and
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Consulting Services. Consultant will consult with and assist the
Company with its business development and strategic plans and activities.
Consultant will provide advice concerning such activities. Further, the
Consultant will provide administrative support, and arrange for office apace for
the Company. All such services will be provided upon request from the Company,
provided that Consultant has the capacity and resources to provide such
requested services, and provided further that Consultant either provides such
services to other clients, or that Consultant is then willing to provide such
services.
2. Term. This Agreement shall continue for a term of five years, during
which time the Consultant shall provide the services described above. In
addition, upon request by the Company, the Consultant shall continue to provide
the services for an additional one year period if the activities engaged in by
the Company and for which the Consultant advised or otherwise assisted the
Company shall continue beyond the initial five year period.
3. Fees; Payment; Expenses.
(a) In consideration for the services to be provided hereunder, the
Company agrees to pay the Consultant the regular rates and charges that
Consultant offers to its clients (for such services), which are subject to
change from time to time upon notice to the Company. The Company shall be
responsible to pay all fees and charges as billed, and will be charged interest
at the applicable federal rate on past-due payments.
(b) In addition, the Company shall reimburse ISIS for any
out-of-pocket expenses incurred in the course of the engagement hereunder. In
the event consultants or other service providers are engaged to provide services
to the Company in the course of the services requested by the Company hereunder,
all fees and expenses due to such providers shall be the responsibility of the
Company, and the Company shall pay such amounts when billed either by ISIS or by
such other providers.
4. Independent Parties. Each of the parties hereto is an independent
contractor and is not nor shall it be deemed to be an employee, agent, partner
or representative of the other. Neither party shall have any right or authority
to create any obligations of any kind on behalf of the other, and neither party
shall make any representation to any third party to the contrary. The
relationship and transactions contemplated hereunder are non-exclusive and each
of the parties hereto has the right to enter into other similar arrangements and
transactions with other entities.
5. Termination.
(a) This agreement shall become effective on the date hereof and
shall continue until terminated in accordance herewith. The provisions of this
Section 5, and the provisions of Sections 6, 7, and 13 shall survive any
termination of this Agreement.
(b) The Company and the Consultant may terminate this Agreement at
any time upon mutual consent.
(c) Either party may terminate this Agreement for "Cause." The term
"Cause" shall mean the following: (i) the other party's insolvency, assignment
for the benefit of creditors, filing of a voluntary petition in bankruptcy, or
becoming subject to an involuntary petition in bankruptcy which is not dismissed
within 60 days after its filing date; or (ii) the other party's material
misrepresentation, material breach of
warranty or material breach of any of the provisions of this Agreement which is
not cured within thirty (30) days after receipt of written notice thereof
setting forth the alleged misrepresentation or breach in sufficient detail. Said
termination shall become effective on the date the notice of such termination is
sent in the case of clause (i), or upon the expiration of said thirty (30) day
period without cure in the case of clause (ii).
6. Notices. All notices which may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally,
if sent by registered mail, postage prepaid and return receipt requested, or if
sent by a recognized overnight courier (provided a signature is received by the
courier upon delivery) at the following address (or such different address as is
specified in writing pursuant to this Section 6): if to the Consultant: ISIS
Capital Management, LLC, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000: or if to the
Company: CEO, Warp Technology Holdings, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, with a copy to Corporate Secretary, Warp Technology Holdings, Inc., 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000. Notices shall be deemed to have been sent
on the date of personal delivery, on the date of deposit in the mail, or on the
date accepted for delivery by a courier, as applicable. Notices shall be deemed
to have been received on the date of personal delivery, on the date indicated on
the return receipt (or if none 4 days after the date of deposit in the mail), or
on the date of the signature received by the courier, as applicable.
7. Complete Agreement; Amendment; Modification; Counterparts. This
Agreement and the Proprietary and the Confidential Information Agreement between
the parties hereto represent the sole agreements of the parties with respect to
the subject matter hereof and, except as provided in Section 9(b) below, may not
be amended or modified except by an instrument signed by the party to be
charged. This Agreement may be executed in one or more counterparts, which
together shall constitute one instrument.
8. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, without regard to its
conflict of law provisions.
9. Binding Effect; Application; Assignment.
(a) The benefits of this Agreement, shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and their
respective permitted assigns and designees, and, subject to (b), their rights
and obligations hereunder shall not be assignable, transferable or delegable
without the written consent of the other party hereto. Subject to (b) below, any
attempted assignment, transfer or delegation hereof without such consent shall
be void.
(b) No consent shall be required for the assignment and delegation
of a party's rights and obligations hereunder in a transaction or series of
related transactions (i) to a third party acquiring control of the party or
acquiring substantially all of the assets of a party or (ii) to an entity
controlling, controlled by or under common control with the party; provided,
however, that the third party described in clause (i) or clause (ii) continues
to engage in substantially the same business and activities of the party.
10. Standards of Conduct Each party agrees to perform its obligations
hereunder and conduct the activities contemplated hereby in compliance with all
applicable federal and state laws and regulations. Each party agrees to conduct
itself in good faith in connection with its duties and contemplated activities
hereunder.
11. Interpretation and Construction
(a) Plurals. The use of the singular form shall be deemed to include
the plural, and vice-versa, as the context may require.
(b) Fair Meaning; Drafting Responsibility. The language in all parts
of this Agreement shall be construed, in all cases, according to its fair
meaning. The parties acknowledge that each party had the opportunity to review
this Agreement with its counsel and have revisions made thereto, and the parties
agree that the normal rules of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
(c) Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, then that provision shall be reformed to the
maximum extent permitted to preserve the parties' original intent as agreed by
the parties hereunder; failing which, such provision shall be severed from this
Agreement with the balance of the Agreement continuing in full force and effect.
Such occurrence shall not have the effect of rendering the provision in question
invalid in any other jurisdiction or in any other case or circumstance, or of
rendering invalid any other provisions of this Agreement to the extent that such
other provisions are not themselves actually in conflict with any applicable
law. Notwithstanding the foregoing, in the event a provision to be reformed or
severed, will, if so reformed or severed, materially alter the parties' original
intent as agreed by the parties hereunder such that a party would be required to
perform without receiving a material portion of the consideration which it would
have received hereunder (determined without reforming or severing the
provision), such party shall have the right to terminate this Agreement upon
notice to the other party, to be effective upon receipt.
(d) Headings. The headings preceding the text of sections and
subsections of this Agreement are for convenience only and shall not be deemed
part of this Agreement.
12. Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
Any waiver by any party of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement.
13. Confidentiality. Subject to applicable law, the parties acknowledge
and agree that this Agreement and each of its provisions are confidential and
shall be treated strictly confidentially. During the term of this Agreement and
thereafter, neither party nor its affiliates, permitted assigns or designees,
employees or agents shall disclose any terms or information pertaining to any
provision of this Agreement to any person or entity without the prior written
consent of the other party, with the exception of a party's tax, legal or
accounting advisors agreeing to maintain confidentiality, or as otherwise
required by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their respective undersigned duly authorized representatives as of the date
first written above.
ISIS Capital Management, LLC
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Member
WARP TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: President
