CONSULTANT AGREEMENT
This consultant engagement agreement ("Agreement") dated the 16th day of
December, 2002 by and between Xxxxxx X. Xxxxx ("Consultant"), whose address is
00 X. Xxxxx Xx., Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, and Maximum Dynamics,
Inc. (Company), a Colorado corporation whose address is 0 X. Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxx Xxxxxxx, XX 00000.
WHEREAS, Consultant assists companies with software engineering,
technology consulting, software design and programming; and,
WHEREAS, Company wishes to engage the services of Consultant;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. Consultant will assist the Company in connection with its business
endeavors in the fields of software engineering, software design, and
other such services that are mutually agreed upon by both parties from
time to time. This Agreement does not constitute a commitment nor an
undertaking on the part of Consultant to internally ensure the
successful development of a commercially viable software system. As
consultant to the Company, Consultant will assist with the following:
i. Software design: Within 30 days from when Consultant receives
the necessary information about the Company - which shall
include the current software system, software code, software
design plan, software design documentation papers and any other
information requested by Consultant - Consultant shall provide
the Company with an automation engine that shall compute
statements all designed in a web-based environment (hereafter
"Software Component").
ii. Software engineering: Consultant agrees to assist the Company
with creation and testing of the Software Component. Consultant
will act only as a consultant and it is the responsibility of
the Company and its affiliates to ensure the proper functioning
of the software system and Software Component to be developed by
the Consultant.
2. The retention by the Company of Consultant as heretofore described
shall be for a period of not less than four months from the date hereof
in order to provide Consultant a reasonable opportunity to perform its
services (as outlined above). Following this four month period, this
Agreement will automatically renew on a month-to-month basis unless
terminated by either party upon 30 day advanced written notice.
3. Any parties introduced to the Company by Consultant, even if declining
participation hereby, shall be deemed a "Protected Party" and
thereafter the Company shall not directly deal with the Protected Party
without the prior written consent of Consultant.
4. In connection with Consultant's activities on the Company's behalf, the
Company will cooperate with Consultant and will furnish Consultant with
all information and data concerning the Company (the "Information"),
which Consultant deems appropriate and will provide Consultant with
access to the Company's officers, directors, employees, independent
accountants, and legal counsel. The Company represents and warrants
that all Information made available to Consultant by the Company will,
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at all times during the period of engagement of Consultant hereunder,
be complete and correct in all material respects and will not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading
in the light of the circumstances under which such statements are made.
The Company further represents and warrants that any software code
provided by it to Consultant will have been prepared in good faith by
the Company and is owned legally and completely by the Company. The
Company acknowledges and agrees that, in rendering its services
hereunder, Consultant may be using and relying on the Information
without independent verification thereof by Consultant or independent
appraisal by Consultant of any of the Company's assets. Consultant does
not assume responsibility for any information regarding the Company.
Any recommendations rendered by Consultant pursuant to this Agreement
may not be disclosed publicly without our prior written consent.
5. In consideration of its services pursuant to this Agreement, Consultant
shall be entitled to receive, and the Company agrees to pay Consultant,
consulting fees according to the attached Schedule A, which may change
from time to time with ample notice provided to the Company before any
changes that may effect the course or charges for services rendered by
Consultant.
6. In addition to the consideration paid as described in Paragraph 5
above, Consultant agrees that it will charge the Company for any added
expenses only if such expenses are pre-approved by the Company. The
Company agrees to promptly reimburse Consultant, upon request, for all
such pre-approved expenses incurred by Consultant (which may include
fees and disbursements of counsel, and of other consultants and
advisors retained by Consultant) in connection with the matters
contemplated by this Agreement.
7. Either party hereto may terminate this Agreement at any time upon 30
days' prior written notice, following the initial engagement period as
stated in Paragraph 2 without liability or continuing obligation,
except as set forth in the following sentence. Neither termination of
this Agreement nor completion of the assignment contemplated hereby
shall affect: (i) any compensation earned by Consultant up to the date
of termination or completion, as the case may be, (ii) the
reimbursement of expenses incurred by Consultant up to the date of
termination or completion, as the case may be, (iii) the provisions of
Paragraphs 5 through 8 of this Agreement and (iv) the attached
Indemnification Provisions which are incorporated herein, all of which
shall remain operative and in full force and effect.
8. Should this Agreement be terminated by either party as described in
Paragraph 2 and Paragraph 7, Consultant will keep one-twenty-fourth
(1/24) of the equity position (including warrants) for each month that
Consultant was retained. In the case of termination, Consultant agrees
to return its stock certificates minus the equity (including warrants)
that are to be kept as described above in this paragraph.
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9. The Company agrees to indemnify and hold harmless Consultant against
any and all losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses, and disbursements (and any and
all actions, suits, proceedings, and investigations in respect thereof
and any and all legal and other costs, expenses, and disbursements in
giving testimony or furnishing software code, systems or documents in
response to a subpoena or otherwise), including, without limitation the
costs, expenses, and disbursements, as and when incurred, of
investigating, preparing, or defending any such action, suit,
proceeding, or investigation (whether or not in connection with
litigation in which Consultant is a party), directly or indirectly,
caused by, relating to, based upon, arising out of, or in connection
with Consultant's acting for the Company, including, without
limitation, any act or omission by Consultant in connection with its
acceptance of or the performance or non-performance of its obligations
under this Agreement; provided, however, such indemnity shall not apply
to any portion of any such loss, claim, damage, obligation, penalty,
judgment, award, liability, cost, expense, or disbursement to the
extent it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily
and directly from the willful misconduct of Consultant. The Company
also agrees that Consultant shall not have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with the engagement of Consultant, except to the
extent that any such liability is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from Consultant's willful misconduct.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to Consultant or the persons
indemnified below in this sentence and shall extend to the following:
Consultant, its affiliated entities, directors, officers, employees,
legal counsel, agents, and controlling persons (within the meaning of
the federal securities laws). All references to Consultant in these
indemnification provisions shall be understood to include any and all
of the foregoing.
If any action, suit, proceeding, or investigation is commenced, as to
which Consultant proposes to demand indemnification, it shall notify
the Company with reasonable promptness; provided, however, that any
failure by Consultant to notify the Company shall not relieve the
Company from its obligations hereunder. Consultant shall have the right
to retain counsel of its own choice to represent it, and the Company
shall pay the fees, expenses, and disbursements of such counsel; and
such counsel shall, to extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated
by the Company. The Company shall be liable for any settlement of any
claim against Consultant made with the Company's written consent, which
consent shall not be unreasonably withheld. The Company shall not,
without the prior written consent of Consultant, settle or compromise
any claim, or permit a default or consent to the entry of any judgment
in respect thereof, unless such settlement, compromise, or consent
includes, as an unconditional term thereof, the giving by the claimant
to Consultant of an unconditional release from all liability in respect
of such claim.
10. The Company understands that to the extent Consultant utilizes any
third parties that these third parties constitute the proprietary
intellectual property of Consultant. Such contacts, partners and
related information represent a substantial value to Consultant that
Consultant uses to offer services to clients and retain a competitive
advantage in the marketplace. Therefore the Company aggress to work
with Consultant, and agrees not to circumvent in any manner, directly
or indirectly, Consultant with regard to any third parties, clients or
contacts that have been identified by Consultant, or Consultant's
clients or contacts. All contacts, discussions and resources with all
identified third parties or partners of Consultant shall be conducted
by, through or in conjunction with Consultant. The Company agrees that
this non-circumvention clause will remain in effect for a period of not
less than 12 months following the termination of this agreement by
either party.
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11. The validity and interpretation of this Agreement shall be governed by
the laws of the State of Colorado applicable to agreements made and to
be fully performed therein. The Company irrevocably submits to the
jurisdiction of any court of the State of Colorado for the purpose of
any suit, action, or other proceeding arising out of this Agreement, or
any of the agreements or transactions contemplated hereby, which is
brought by or against the Company and (i) hereby irrevocably agrees
that all claims in respect of any such suit, action, or proceeding may
be heard and determined in any such court and (ii) to the extent that
the Company has acquired, or hereafter may acquire, any immunity from
jurisdiction of any such court or from any legal process therein, the
Company hereby waives, to the fullest extent permitted by law, such
immunity. The Company hereby waives, and agrees not to assert in any
such suit, action, or proceeding, in each case, to the fullest extent
permitted by applicable law, any claim that (a) the Company is not
personally subject to the jurisdiction of any such court, (b) the
Company is immune from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution,
execution, or otherwise) with respect to the Company's property or (c)
any such suit, action, or proceeding is brought in an inconvenient
forum.
12. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties
hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement shall be binding
upon their respective successors and assignees.
13. For the convenience of the parties hereto, any number of counterparts
of this Agreement may be executed by the parties hereto. Each such
counterpart shall be, and shall be deemed to be, an original
instrument, but all such counterparts taken together shall constitute
one and the same Agreement. This Agreement may not be modified or
amended except in writing signed by the parties hereto.
14. Services provided by Consultant to and on behalf of the Company in
connection with this Agreement will be suspended forthwith in the event
of nonpayment of fees or expenses.
15. Consultant hereby represents and warrants as follows:
i. Consultant is an independent contractor and has the power and
is duly authorized to carry on his business where and as now
conducted and to own, lease, and operate his assets as he now
does.
ii. The execution, delivery, and performance by Consultant of and
the consummation of the transactions contemplated in this
Agreement have been duly and validly authorized by the
Consultant, and Consultant represents and warrants that he has
the right, power, legal capacity, and authority to enter into
and perform his obligations under this Agreement, and that no
consent or approval of, notice to, or filing with any
governmental authority having jurisdiction over any aspect of
the business or assets of Consultant, and no consent or
approval of or notice to any other person or entity is required
in connection with the execution and delivery by Consultant of
or the consummation by Consultant of the transactions
contemplated in this Agreement.
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iii. The execution, delivery, and performance of this Agreement by
Consultant and the consummation of the transactions
contemplated hereby and thereby, do not and will not result in
or constitute (i) a breach of any term or provision of this
Agreement; (ii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a default,
breach, or violation of any of the terms, conditions, or
provisions of the Articles of Incorporation or Bylaws of
Consultant; (iii) a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a default,
breach, or violation of any of the terms, conditions, or
provisions of any lease, license, promissory note, security
agreement, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Consultant
is a party or by which it or any of its assets are bound; (iv)
an event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of Consultant; or (v) the creation or
imposition of any lien, charge, or encumbrance on any of the
assets of Consultant.
16. The Company hereby represents and warrants as follows:
i. Company is a corporation duly incorporated, validly existing,
and in good standing under the laws of the State of Colorado,
and has the corporate power and is duly authorized to carry on
its businesses where and as now conducted and to own, lease,
and operate its assets as it now does.
ii. The execution, delivery, and performance by Company of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Board of Directors
of Company, and Company represents and warrants that it has the
right, power, legal capacity, and authority to enter into and
perform its obligations under this Agreement, and that no
consent or approval of, notice to, or filing with any
governmental authority having jurisdiction over any aspect of
the business or assets of Company, and no consent or approval
of or notice to any other person or entity is required in
connection with the execution and delivery by Company of or the
consummation by Company of the transactions contemplated in
this Agreement.
iii. The execution, delivery, and performance of this Agreement by
Company and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or constitute
(i) a breach of any term or provision of this Agreement; (ii) a
default, breach, or violation, or an event that, with notice or
lapse of time or both, would be a default, breach, or violation
of any of the terms, conditions, or provisions of the Articles
of Incorporation or Bylaws of Company; (iii) a default, breach,
or violation, or an event that, with notice or lapse of time or
both, would be a default, breach, or violation of any of the
terms, conditions, or provisions of any lease, license,
promissory note, security agreement, commitment, indenture,
mortgage, deed of trust, or other agreement, instrument, or
arrangement to which Company is a party or by which it or any
of its assets are bound; (iv) an event that would permit anyone
to terminate or rescind any agreement or to accelerate the
maturity of any indebtedness or other obligations of Company;
or (v) the creation or imposition of any lien, charge, or
encumbrance on any of the assets of Company.
17. In its performance hereunder, Consultant and his agents shall be an
independent contractor. Consultant shall complete the services required
hereunder according to his own means and methods of work, shall be in
the exclusive charge and control of Consultant and shall not be subject
to the control or supervision of the Company, except as to the results
of the work. Company acknowledges that nothing in this Agreement shall
be construed to require Consultant to provide services to Company at
any specific time, or in any specific place or manner. Payments to
Consultant hereunder shall not be subject to withholding taxes or other
employment taxes as required with respect to compensation paid to an
employee.
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All notices and writings, required or given pursuant to this Agreement, shall be
signed by the party relying thereon to be sent by prepaid postal mail rates or
by facsimile transmission, to a location or number set forth below:
Maximum Dynamics, Inc. Xxxxxx X. Xxxxx
---------------------- ----------------------------
A) Maximum Dynamics, Inc. B) Xxxxxx X. Xxxxx
0 X. Xxxxxxx Xxxxxx, Xxxxx 0000 00 X. Xxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
In witness whereof the parties have set their hands and seals as of the date
first written above.
Maximum Dynamics, Inc. Xxxxxx X. Xxxxx
------------------------ --------------------------
By: Xxxx X. Xxxxxx By: Xxxxxx X. Xxxxx
Signature: /s/ Xxxx X. Xxxxxx Signature: /s/ Xxxxxx X. Xxxxx
------------------------------ -------------------------
Title: Chief Executive Officer Title: Consultant
SCHEDULE A
A. Service Fee. The Company will engage Consultant for the services
described in this Agreement. The service fee charged to the Company for
this service is $30,000.00 (thirty thousand dollars) and is payable in
the following:
(i) 750,000 shares of registered S-8 shares of Common Stock of
Maximum Dynamics, Inc.
(ii) Shares shall be issed to: Xxxxxx X. Xxxxx
The Company agrees to issue these shares within ten (10) days of the
signing of this Agreement.
B. Xxxx Xxxxxxxxxxx deliverables: Consultant's efforts and services will
focus on the following areas:
i. Software design: Within 30 days from when Consultant receives
the necessary information about the Company - which shall
include the current software system, software code, software
design plan, software design documentation papers and any other
information requested by Consultant - Consultant shall provide
the Company with an automation engine that shall compute
statements all designed in a web-based environment (hereafter
"Software Component").
ii. Software engineering: Consultant agrees to assist the Company
with creation and testing of the Software Component. Consultant
will act only as a consultant and it is the responsibility of
the Company and its affiliates to ensure the proper functioning
of the software system and Software Component to be developed
by the Consultant.
