EXHIBIT 99.3
EXECUTION VERSION
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of April 30, 2003 (this "Agreement"),
is entered into by and between Stanford Venture Capital Holdings, Inc., a
Delaware corporation (the "Consultant"), and Stronghold Technologies, Inc., a
Nevada corporation (the "Company").
RECITALS :
WHEREAS, the Company desires to retain the Consultant to render certain
financial consulting and advisory services; and
WHEREAS, the Consultant is willing to perform such consulting services on
the terms and subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT
The Company hereby engages the Consultant, and the Consultant hereby accepts
such engagement, as a consultant to render the consulting services set forth
below, as requested by the Company, and in furtherance of the business goals of
the Company.
2. CONSULTANT DUTIES
(a) The Consultant shall, at the request of the Company, provide financial
consulting and advisory services with respect to matters including, but not
necessarily limited to, the following:
(i) market makers and financial public relations specialists;
(ii) alternative capital structures and additional funding
requirements; and
(iii) strategic transactions that the Company may consider from time
to time.
(b) The Consultant may also provide additional services at the request of the
Company upon terms and conditions to be mutually agreed upon by the parties at
the time of such additional engagement.
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(c) The Consultant agrees to use commercially reasonable efforts to provide the
aforesaid consulting services at the direction of the Company and to perform
such duties that may be required of the Consultant pursuant to the express and
explicit terms of this Agreement to the reasonable satisfaction of the Company.
(d) The Consultant shall not be required to devote a minimum number of hours to
the services rendered hereunder.
3. TERM
The term of this Agreement during which such consulting services shall be
provided hereunder shall commence on July 1, 2003 and continue for a period of
two (2) years.
4. COMPENSATION
(a) As compensation for the services to be rendered by the Consultant hereunder,
the Company shall pay the Consultant a fee of $50,000 per year, payable
quarterly in advance in equal installments of $12,500, with the first such
installment due on July 1, 2003. The fee may be paid in cash or common stock at
the option of the Company. The Consultant shall also receive or be reimbursed
for its reasonable travel and other out-of-pocket expenses directly related to
its agreed upon activities in the course of performing its consulting duties. If
the Company chooses to pay any portion of the fee in common stock, the per-share
value of the common stock issued shall be equal to the lowest of (i) the average
of the closing prices for the Company's common stock for the 20 Trading Days (as
defined below) immediately preceding the due date for the relevant installment
payment if such stock is publicly traded, (ii) the lowest issuance price for the
Company's common stock during the three-month period immediately preceding the
due date for the relevant installment payment, or (iii) a per-share price
determined by the Company's Board of Directors in good faith and agreed to by
the Consultant. As used herein, "Trading Day" means any business day on which
(A) the market on which the Company's common stock trades is open for business
and (B) the Company's common stock actually trades on such market. In the event
that the Company and the Consultant fail to agree on the per-share price, the
Company shall make the relevant installment payment in cash.
(b) Such shares of common stock shall not be registered under any federal or
state securities laws and shall be deemed to be restricted securities.
5. CONFIDENTIAL INFORMATION
(a) The Consultant hereby acknowledges that any and all confidential knowledge
or information concerning the Company and its affairs obtained by it, its
principals, employees and/or contractors in the course of its engagement
hereunder will not be disclosed by
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the Consultant to other persons and entities, including, but not limited to,
competitors of the Company, except (i) as required by law, court order or other
legal proceeding, or (ii) to authorized employees, officers or directors of the
Company or the Consultant or to such persons to whom disclosure is necessary or
appropriate in connection with the Consultant's performance of its duties
hereunder.
(b) As used herein, confidential knowledge or information means: (a) all
information regarding the Company which is not generally available to the
public; and (b) all information regarding the Company which was received by the
Consultant from a source with confidentiality obligations to the Company.
(c) The covenant of the Consultant under this Section 5 shall not apply to
information or knowledge which (i) at the time of disclosure is in the public
domain; (ii) after such disclosure, becomes a part of the public domain
otherwise than through the Consultant's breach of its obligations under this
Section 5; or (iii) was lawfully in the possession of the Consultant.
(d) All business plans, private placement memoranda, inventions, discoveries,
computer programs, data, technology, designs, innovations and improvements
(whether or not patentable and whether or not copyrightable) ("Inventions")
related to the business of the Company which are made, conceived, reduced to
practice, created, written, designed or developed by the Consultant, solely or
jointly with others and whether during normal business hours or otherwise,
during the consultation period or thereafter if resulting or directly derived
from confidential information, shall be the sole property of the Company. The
Consultant hereby assigns to the Company all Inventions and any and all related
patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of the Company as his duly authorized
attorney to execute, file, prosecute and protect the same before any government
agency, court or authority. Upon the request of the Company and at the Company's
expense, the Consultant shall execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Inventions to the Company and to assist the company in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention. The Consultant
also hereby waives all claims to moral rights in any Inventions.
(e) The Consultant acknowledges that it is aware (and that its employees,
representatives or agents who are apprised of such confidential information)
that applicable securities laws prohibit any person who is aware of material,
non-public information about a company obtained directly or indirectly from that
company from purchasing or selling securities of such company or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell such
securities.
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6. CONSULTANT STATUS
The parties acknowledge that the Consultant is providing services hereunder as
an independent contractor. Accordingly, the Consultant agrees that any taxes
associated with the performance of its services hereunder shall be its sole
responsibility. The parties further agree that nothing herein shall create a
relationship of partners or joint venturers between the Consultant and the
Company and, except as otherwise set forth herein, nothing herein shall be
deemed to authorize the Consultant to obligate or bind the Company without the
prior written consent of the Company in each instance.
7. INDEMNIFICATION
(a) The Company shall hold harmless and indemnify the Consultant, its
affiliates, and each of the directors, employees, agents, partners,
stockholders, and members of the foregoing from and against any and all damages,
losses, liabilities, obligations, fees, costs and expenses, including, but not
limited to, the payment and advancement of reasonable attorney's fees (including
for appellate proceedings) (collectively, the "Indemnified Liabilities"),
resulting from, or incurred in connection with any claim made against the
Consultant relating to the performance of its duties hereunder.
(b) Notwithstanding the foregoing, the Company shall have no obligation to hold
harmless and indemnify the Consultant from claims made against the Consultant
which arise out of, or in connection with, the Consultant's gross negligence or
willful misconduct in the performance of its duties hereunder.
(c) To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(d) The provision of this Section 7 shall survive termination of this Agreement.
8. ASSIGNMENT
The Consultant shall not have the right to assign, sell, pledge, or dispose of
in any way this Agreement or its rights and obligations hereunder without, and
then only in accordance with, the Company's prior written consent.
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9. TERMINATION OF AGREEMENT
The termination of this Agreement for any reason, whether initiated by the
Consultant or the Company, shall not release the Consultant or the Company, as
the case may be, from their respective obligations under this Agreement which by
their terms shall continue beyond such termination, including, without
limitation, the Consultant's obligations under Section 5 ("Confidential
Information") and the Company's obligation under Sections 4 ("Compensation") and
7 ("Indemnification"). Notwithstanding the foregoing, the Company shall no
longer be obligated to pay any remaining fees under Section 4 ("Compensation")
if the Consultant terminates this Agreement.
10. ENTIRE AGREEMENT
This Agreement contains the complete arrangement between the parties with
respect to the subject matter hereof. The parties stipulate that neither has
made any representation with respect to the subject matter of this Agreement or
the execution or delivery hereof or any other representations except such
representations as are specifically set forth herein, and each of the parties
hereto acknowledges that it has relied on its own judgment in entering into this
Agreement.
11. WAIVER OR AMENDMENT
No waiver, amendment or modification of this Agreement or any condition or
limitation contained herein shall be valid unless in writing and duly executed
by the party to be charged therewith and no evidence of any waiver, amendment or
modification shall be offered or received in evidence or in any proceeding,
arbitration or litigation between the parties hereto arising out of or affecting
this Agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is duly executed in writing. The parties further
agree that the provisions of this section may not be waived except as set forth
herein.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Florida, without regard to its principles of
conflict of laws. Each party consents to the jurisdiction of the federal courts
in Florida or the state courts of the State of Florida in connection with any
dispute arising under this Agreement or any of the transactions contemplated
hereby, and hereby waives, to the maximum extent permitted by law, any
objection, including any objections based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
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13. VALID OBLIGATION
This Agreement has been duly authorized, executed, and delivered by the Company
and is a legal, valid, and binding obligation of the Company.
14. WAIVER OF JURY TRIAL
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THIS AGREEMENT.
15. ATTORNEYS' FEES AND COSTS
If either party seeks to enforce its rights or remedies hereunder by litigation,
arbitration, or otherwise, the prevailing party shall be entitled to reasonable
attorneys' fees, expenses, and costs incurred in connection therewith.
16. COUNTERPARTS
This Agreement may be executed in separate counterparts, each of which so
executed and delivered shall constitute an original, but all such counterparts
shall together constitute one and the same instrument.
(The remainder of this page is intentionally left blank.)
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[SIGNATURE PAGE TO CONSULTING AGREEMENT]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
STANFORD VENTURE CAPITAL STRONGHOLD TECHNOLOGIES, INC.
HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxxxxxxx X. Xxxxx
Title: President Title: President and Chief Executive Officer
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