EXHIBIT 1.3
CONSULTANT AGREEMENT
This agreement is made as of this day, October 1, 2007, by and between
XxxxxXxx Technologies, Inc., a Delaware corporation with principal offices at
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx, 00000 (the "Company") and Xxxxx
Xxxxxx, an individual residing at 0000 XX. 00xx Xxxxx, Xxxx Xxxx, Xxxx, 00000
(the Consultant).
WHEREAS, the Consultant, an independent contractor, desires to perform
advisory and consulting services for the Company; and
WHEREAS, the Company desires to retain and compensate the Consultant for
the performance of such services;
NOW, THEREFORE, the parties hereby agree as follows:
1. Services and Responsibilities
Consultant shall serve at the request and discretion of the
Company's Chief Executive Officer as an advisor and consultant providing
services on a best efforts basis which will include, but not be limited
to, consultation with and assistance in the areas of the Company's
operations, industry conditions, governmental affairs, facilities or any
other initiatives involving the Company or any of its affiliated or
associated entities as deemed appropriate by Chief Executive Officer. In
addition, the Consultant shall introduce Company personnel to key persons
in the local investment and political affairs communities within the State
of Iowa and surrounding states as deemed appropriate (the "Services").
2. Compensation
(a) Consulting Fees. During the Term, the Company shall pay the
Consultant at the rate of six thousand three hundred dollars
($6,300) per month for performance of the Services, with each
monthly amount payable on the last day of each month of during the
Term. Consultant agrees to defer $5,300 of each monthly payment due
under this Agreement commencing with the November 30, 2007 payment
and ending with the April 30, 2008 payment with all deferred amounts
payable on May 31, 2008. All subsequent monthly payments shall be
paid in accordance with this agreement. The Consultant agrees to
devote no more than 40 hours per month in performance of these
services. Consultant shall bear sole responsibility for all office
space and secretarial costs incurred in the performance of the
Services other than those described in section 2(b). Travel time,
other than local travel shall be included in the computation of
hours worked during each monthly period but shall not exceed 8 hours
per day.
(b) Expenses. The Company agrees to pay any professional fees, including
but not limited to legal, accounting and investment banking fees
pre-approved by the CEO. The Company agrees within 30 days of
submission, to pay Consultant's actual out-of-pocket expenses for
all travel and transportation, and all other authorized and
necessary expenditures related to the performance of the Services,
as approved by the CEO. Invoices shall be prepared in the manner
prescribed by the Company and shall be submitted to the Company's
Corporate address to the attention of its CEO.
(c) Other. If the Consultant introduces the Company to an investment
group, person or entity which provides any funding on terms approved
by the Company's Board of Directors, the Company agrees to pay
Consultant a fee of 3.5% of gross proceeds of such funding, as long
as total fees associated with the funding do not exceed 15% of the
gross proceeds. In addition, if the referenced funding is sufficient
to (1) repay 100% of the then outstanding debt of the Company to
Laurus Master Fund, Ltd, it's affiliates or assigns ("Laurus") and
(2) repurchase all outstanding warrants previously granted to
purchase shares of its common stock owned by Laurus then the Company
agrees to grant the Consultant a warrant to purchase 250,000 shares
of the its common stock. The warrant would be exercisable at a price
equal to the closing bid price of the its common stock on the date
such funding is closed and shall be exercisable immediately upon
issuance and shall have a term of 3 years from date of issuance.
3. Terms and Termination.
(a) The term of this Agreement shall commence on October 1, 2007 and end
on March 31, 2011 (the "Term").
(b) This Agreement may be terminated in any of the following ways:
(i) immediately upon Consultant's death or disability (disability
shall be defined as Consultant's inability to perform Services
for an aggregate of one hundred and twenty (120) days due to
mental or physical disability);
(ii) immediately without prior notice to Consultant for Cause, as
hereinafter defined, provided, however, that prior to any
termination for Cause, Consultant has had a reasonable
opportunity to be heard thereon;
(iii) by either party in the event of a material breach by the other
that is not cured within thirty (30) days after written notice
thereof;
(iv) at any time by mutual agreement of the Company and Consultant;
(v) by the Company without cause upon thirty (30) days' advance
notice, and subject to the requirement that the Company pay to
the Consultant all remaining consulting fees due under Section
2(a) as if the agreement had terminated in the normal course
on March 31, 2011.
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(c) "Cause" for the purpose of this Agreement shall mean: (i) The
falseness or material inaccuracy of any of Consultant's
warranties or representations herein or made in connection
with the performance of Services hereunder; (ii) the material
breach of this Agreement including without limitation any
breach of the restrictive covenants or confidentiality
provisions herein; (iii) Consultant's failure or refusal to
comply with the explicit but reasonable directives of the
Chief Executive Officer or to render the Services required
herein; (iv) fraud or embezzlement involving assets of the
Company, its customers, suppliers or affiliates or other
misappropriation of the Company's assets, funds or resources;
(v) acting beyond the scope of the Consultant's status as an
independent contractor.
The existence of Cause for the termination of this Agreement
by the Company shall be subject, upon the written election by the
Consultant or the Company, to binding arbitration as provided in
Section 13 hereof. The cost of arbitration exclusive of the cost of
each party's legal representation (which except as hereinafter
otherwise provided, shall be borne by the party incurring the
expense), shall be borne by the investigating party, provided,
however, that the arbitrator's award may require either party to
representation in the arbitration proceedings.
Further, any dispute, controversy, or claim arising out of, in
conjunction with, or in relation to this definition of "Cause" shall
be settled by arbitration as provided in Section 13 hereof. Any
award or determination shall be final, binding, and conclusive upon
the parties, and a judgment rendered may be entered in any court
having jurisdiction thereof.
4. Designation of Duties. Consultant shall report to the Company's Chief
Executive Officer.
5. Restrictive Covenant. During the term of this Agreement, and for a period
of eighteen months (18) from the date of termination of this Agreement,
Consultant shall not make his services available to any competitor of the
Company in the specific field in which he is performing Services for the
Company. Consultant further agrees not to perform any service within the
field of the Agreement which utilize any of the confidential information
developed as a result of performing Services for the Company, for any
other entity.
During the term of this Agreement and for a period eighteen (18) eighteen
months thereafter, Consultant shall not, either on his or her own account
or for any person, firm, partnership, corporation, or other entity (a)
solicit, interfere with, or endeavor to cause any employee of the Company
to leave his or her employment, or (b) induce or attempt to induce any
such employee to breach his or her employment agreement with the Company.
During the term of this Agreement and for a period of eighteen (18)
eighteen months thereafter, Consultant shall not solicit, induce, or
attempt to induce any past or current customer of the Company (a) to cease
doing business in whole or in part with or through the Company, or (b) to
do business with any other person, firm, partnership, corporation, or
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other entity which performs services materially similar to or competitive
with those provided by the Company.
6. Indemnity and Insurance Consultant shall indemnify and hold harmless the
Company, its officers and employees for any injury occurring to the
property or person of Consultant, its employees, agents or subcontractors
as a result of Consultant's performance of this Agreement, provided that
said injury has not occurred because of the gross negligence of the
Company.
The Company and Consultant further agree to indemnify and hold
harmless each other, their officers and employees against all losses,
claims, liabilities, damages and expenses of any nature, directly or
indirectly arising out of or as a result of any unauthorized, unlawful or
fraudulent act, or any willful omission or deception by either party,
their employees, agents or subcontractors in the performance of this
Agreement.
Consultant shall maintain the following insurance throughout the
term of this Agreement:
(a) If Consultant uses a personal automobile in the performance of this
Agreement, automobile liability insurance with limits of not less
than $100,000 per person and $300,000 per accident for bodily injury
and not less that $25,000 per accident for property damage.
(b) Workers' compensation insurance and employer's liability insurance
on any employees of Consultant (other than Consultant) performing
services under this Agreement.
If requested by the Company, Consultant shall furnish certificates of
insurance evidencing such coverages, or the original of the insurance
policies for review by the Company.
7. Patent Rights. Consultant agrees to assign to the Company, its successors,
assigns, or nominees all right, title and interest in and to all
inventions, improvements, copyrightable material, techniques and designs
made or conceived by him, solely or jointly with others, in the
performance of this Agreement together with all United States and foreign
patents and copyrights which may have been obtained thereon, and at the
Company's request and expense, will execute all necessary and proper
papers for obtaining any other United States and foreign patents, and will
execute and deliver all proper assignments thereof
8. Confidentiality. During the term of this Agreement, and for a period of
eighteen months (18) from the date of termination of this Agreement,
Consultant shall not disclose, publish or authorize others to publish,
design data, drawings specifications, reports or other information
pertaining to the projects assigned to him by the Company, or concerning
any other affairs of the Company disclosed in confidence to Consultant,
without prior written approval of the Company. Upon expiration or sooner
termination of this Agreement, Consultant agrees to return to the Company
all drawings, specifications, data and other material obtained by the
Consultant from the Company, or developed by Consultant, in connection
with the performance of this Agreement.
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9. Independent Contractor. Consultant is retained and employed by the Company
only to the extent set forth in this Agreement, and his relationship to
the Company hereunder is that of an independent contractor and as such
Consultant has no authority to act in the name of or bind the Company.
Consultant shall be free to dispose of all portions of his time and
activities which he is not obligated to devote to the Company, in such a
manner and to such persons, firms or corporations as he sees fit, except
as provided in paragraph 5 hereof.
10. Advertising. Consultant agrees that he will not advertise or publicize or
otherwise disclose, except in the normal course of his business, the fact
that he is performing consulting services or other work hereunder without
the prior written approval of the Company.
11. General. No assignment by either party of this Agreement, or any sums due
under it, will be binding on either party without the both parties prior
written consent. This Agreement supersedes all prior agreements and
understandings between the parties respecting the subject matter of this
Agreement. The Agreement may not be changed or terminated orally by or on
behalf of either party. In the event of the actual or threatened breach of
any of the terms in paragraphs 5, 6, 8 and 9 the Company will have the
right to specific performance and injunctive relief. The rights granted by
this paragraph are in addition to all other remedied and rights available
at law or in equity.
Any notices required to be given pursuant to the provisions of this
Agreement shall be in writing and sent via certified mail, return receipt
requested, to the parties at the addressed set forth in the introductory
paragraph hereof. This agreement shall be governed by and construed in
accordance with the laws of the State of Iowa and may be amended only in
writing signed by the party to be bound, which in the case of the Company
shall the CEO of the Company.
12. Arbitration. Any disputes between the parties hereto shall be submitted
before a dingle arbitrator in accordance with the Rules of the American
Arbitration Association to be held in Des Moines, Iowa and any judgment
upon any award rendered by the arbitrators may be entered in court having
jurisdiction thereof.
13. Severability. If any of the provisions of this Agreement are void or
enforceable, the remaining provision shall nevertheless be effective, the
intent being to effectuate this Agreement to the fullest extent possible.
14. Governing Law. This Agreement shall be interpreted in accordance with the
internal laws of the State of Iowa, without regard to its principles of
conflict of laws.
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IN WITNESS WHEREOF, the parties have executed or cause their duly authorized
officers to execute this Agreement as of the date first hereinabove written.
CONSULTANT XXXXXXXX TECHNOLOGIES, INC
/s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxx Xxxxxx
Chief Executive Officer
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