Exhibit 10.33
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of the
9th day of May, 2006 by and between CaganCo Incorporated, with an office located
at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000-0000 ("Consultant") and
Trinity Learning Corporation with an office located at 0000 Xxxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, XX 00000 ("Company"). Company desires to retain Consultant
as an independent contractor to perform consulting services for Company and
Consultant is willing to perform such services, on terms set forth more fully
below. In consideration of the mutual promises contained herein, the parties
agree as follows:
1. SERVICES. Consultant agrees to perform for Company the services
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described in Exhibit A (the "Services").
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2. COMPENSATION. Company agrees to pay Consultant the compensation set
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forth in Exhibit A (the "Compensation") for the performance of the Services
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performed on or after the date hereof.
3. CONFIDENTIALITY.
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(a) "Confidential Information" means any proprietary information,
technical data, trade secrets or know-how, including, but not limited to,
research, product plans, products, services, customers, customer lists, markets,
software, developments, inventions, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing, finances,
strategies or other business information disclosed by the either party (Company
or Consultant) to the other or otherwise received, devel-oped or derived during
the performance of the Services, whether prior to, on or after the date hereof,
either directly or indirectly in writing, orally or by drawings or inspec-tion
of parts or equipment.
(b) Consultant shall hold all Company's Confidential Information in the
strictest confidence and shall not, during or subsequent to the term of this
Agreement, use Company's Confidential Information for any purpose whatsoever
other than the performance on behalf of Company of the Services or disclose
Company's Confidential Information to employees of Consultant except on a need
to know basis or to third parties, and it is understood that such Confidential
Information shall remain the sole property of Company. Consultant further
agrees to take all reasonable precautions to prevent any unauthorized disclosure
of such Confidential Information including, but not limited to, having each
employee of Consultant, if any, with access to any Confidential Information,
execute a nondisclosure agreement containing provisions in Company's favor
substantially similar to Sections 3, 4 and 5 of this Agreement. Confidential
Information does not include information which (i) is known to Consultant at the
time of disclosure to Consultant by Company, (ii) has become publicly known and
made generally available through no wrongful act of Consultant, or (iii) has
been rightfully received by Consultant from a third party who is autho-rized to
make such disclosure. Without Company's prior written approval, Consultant
shall not directly or indirectly disclose to anyone the existence of this
Agreement or the fact that Consultant has this arrangement with Company.
(c) Consultant agrees that Consultant will not, during the term of this
Agreement, improperly use or disclose any proprietary information or trade
secrets of any former or current employer or other person or entity with which
Consultant has an agreement or duty to keep in confidence information acquired
by Consultant in confidence, if any, and that Consultant shall not bring onto
the premises of Company any unpublished document or proprietary informa-tion
belonging to such employer, person or entity unless consented to in writing by
such employer, person or entity. Consultant shall indemnify Company and hold it
harmless from and against all claims, liabilities, damages and expenses,
including reasonable attorney's fees and costs of suit, arising out of or in
connection with any violation or claimed violation of a third party's rights
resulting in whole or in part from Company's use of the work product of
Consultant or any third party under this Agreement.
(d) Upon the termination of this Agreement, or upon Company's earlier
request, Consultant shall deliver to Company all of Company's property and
Confidential Information in tangible form that Consultant may have in
Consultant's possession or control.
4. OWNERSHIP.
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(a) Consultant agrees that all works of authorship, notes, records,
drawings, designs, inventions, improvements, developments, discoveries and trade
secrets, as well as all deriva-tives and modifications thereof and thereto
(collectively, "Inventions"), conceived, made or discovered by Consultant,
solely or in collaboration with others, which relate in any manner to the
business of Company that Consultant may be directed to undertake, investigate or
experiment with, in performing the Services hereunder whether prior to, on or
subsequent to the date hereof, as well as all intellectual property rights
therein and thereto, are the sole property of Company. Consultant further
agrees to assign (or cause to be assigned) and does hereby assign fully to
Company all such Inventions and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto.
(b) Consultant hereby waives any and all moral rights, including the
right to identification of authorship or limitation on subsequent modification
that Consultant (or its employees) has or may have in any materials or other
deliverables assigned to Company hereunder.
5. ORIGINALITY AND NONINFRINGEMENT. Consultant represents and warrants
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that all materials and Services provided hereunder will be original with
Consultant and that the use thereof by Company or its customers,
representatives, distributors or dealers will not infringe any patent,
copyright, trade secret or other intellectual property right of any third party.
6. RECORDS AND REPORTS. Consultant shall maintain at least reasonable
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minimal records related to Consultant's work in progress and the expenditure of
time per person and materials and other costs in performing Services hereunder.
Consultant agrees that Company or any of its duly authorized representatives
shall have access during or after the termination of this Agreement to and the
right to examine any pertinent books, documents, papers and records of
Consultant involving transactions related to or in connection with this
Agreement. In addition, Consultant agrees that it will from time to time during
the term of this Agreement or any extension thereof keep Company advised as to
Consultant's progress in performing the Services hereunder and that Consultant
will, as requested by Company, prepare written reports with respect thereto in a
form reasonably requested by Company. It is understood that the time required
in the preparation of such written reports shall be considered time devoted to
the performance of Consultant's Services hereunder.
7. CONFLICTING OBLIGATIONS. Consultant certifies that Consultant
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has no outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would adversely affect Consultant's
performance hereunder, and Consultant agrees that Consultant shall not enter
into any such conflicting Agreement during the term of this Agreement.
8. TERM AND TERMINATION.
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(a) The term of this Agreement shall be from the date hero and continue
on a month to month as contracted thereafter until terminated by either party.
(b) Company shall pay Consultant on a semi monthly basis or as
otherwise agreed.
(c) Consultant agrees to cause Xxxxxx Xxxxx to provide Services on a
full time basis to Company.
(d) Upon such termination all rights and duties of the parties toward
each other shall cease except:
(i) that Company shall be obliged to pay, within thirty (30) days
of the effective date of termination, all amounts owing to Consultant for unpaid
Services and related expenses, if any, in accordance with the provisions of
Section 2 hereof; and
(ii) Sections 2, 3, 4, 5, 6, 7, 8, 11, 12, 14 and 15 shall survive
termination of this Agreement.
9. ASSIGNMENT. Consultant acknowledges that the Services to be
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performed hereunder are of a special and unique nature. Neither this Agreement
nor any right hereunder or interest herein may be assigned or transferred by
Consultant without the express written consent of Company. Any such attempted
assignment shall be void.
10. INDEPENDENT CONTRACTOR. Nothing in this Agreement shall in any way
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be construed to constitute Consultant as an agent, employee or representative of
Company, but Consultant shall perform the Services here-under as an independent
contractor. Since Consultant is not an employee of Company, it is understood
that Consultant is not entitled to any employee benefits during the term of this
Agreement. Consultant agrees to furnish (or reimburse Company for) all tools
and materials necessary to accomplish this contract, and shall incur all
expenses associated with performance, except as expressly provided in Exhibit A
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(the"Expenses"), attached hereto and incorporated herein by reference.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement, and
Consultant agrees to indemnify Company and hold it harmless to the extent of any
obligation imposed on Company (i) to pay in withholding taxes or similar items
or (ii) resulting from Consult-ants being determined not to be an independent
contractor. In the performance of all Services hereunder, Consultant shall
comply with all applic-able laws and regulations.
11. EQUITABLE RELIEF. Both parties agree that it would be impossible
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or inadequate to measure and calculate the damages from any breach of the
covenants set forth in Sections 3, 4 or 5 herein. Accordingly, both parties
agree that if the other breaches any of Sections 3, 4 or 5, the other will have
available, in addition to any other right or remedy available, the right to
obtain from any court of competent jurisdiction an injunction restraining such
breach or threatened breach and specific performance of any such provision.
Both parties further agree that no bond or other security shall be required in
obtaining such equitable relief and both hereby consent to the issuance of such
injunction and to the ordering of such specific performance.
12. NOTICES. Any notices required or permitted by this Agreement shall
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be in writing and shall be addressed to the other party at the address shown at
the beginning of this Agreement or such other address of which such party may
notify the other and shall be deemed given upon delivery or, where delivery
cannot be accomplished due to the fault of the addressee, upon attempted
delivery.
12. INDEMNIFICATION. Consultant agrees to indemnify and hold harmless
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Company, its officers, agents and employees from and against all liability,
loss, cost, damages, claims or expenses (including reasonable attorney's fees)
on account of any injury to Consultant or to any agent, employee or associate of
Consultant or to Consultant's property arising out of or resulting in any manner
from or occurring in connection with Consultant's performance of the Services
hereunder, except to the extent caused by the negligence or other tortuous acts
of Company or its agents or employees.
13. MISCELLANEOUS. This is the entire agreement between the parties
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relating to the subject matter hereof and no waiver or modification of the
Agreement shall be valid unless in writing signed by each party. The waiver of
a breach of any term hereof shall in no way be construed as a waiver of any
other term or breach hereof. If any provision of this Agreement shall be held
by a court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect. Neither
party shall have any liability for its failure to perform its obligations
hereunder when due to circumstances beyond Consultant's reasonable control.
This Agreement shall inure to the benefit of and be binding upon each party's
successors and assigns. This Agreement is governed by the laws of the State of
California without reference to conflict of laws principles. All disputes
arising out of this Agreement shall be subject to the exclusive jurisdiction of
the state and Federal courts located in Santa Xxxxxxx County, California, United
States of America and the parties agree and submit to the per-xxxxx and
exclusive jurisdiction and venue of these courts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CONSULTANT COMPANY
CaganCo Incorporated __________________________________
By: __________________________________ By: ______________________________
Xxxxxx X. Xxxxx, President
Name: ____________________________
Title: ___________________________
EXHIBIT A
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SERVICES AND COMPENSATION
1. CONTACT. Consultant's principal Company contact:
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Name: ____________________________________
Title: ____________________________________
2. SERVICES
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Consultant agrees to cause Xxxxxx Xxxxx to provide full time services as
President and Chief Executive Officer of Company and such related services
incident thereto.
It is anticipated that the required services will be performed primarily at
Company offices.
3. COMPENSATION
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Company will pay Consultant for all work at a rate of $ 20,000 per month based
upon full time services.
Company shall reimburse Consultant for all reasonable expenses on the same basis
as other comparable Company executives. Authorized expenses will include actual
out-of-pocket expenses for travel from Santa Xxxxxxx, hotel, car rental, meals,
entertainment and telephone use (including use of personal cellular phone) from
other than Company facilities.
4. AT-WILL
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Consultant is working for Company on an "at-will" basis and may be terminated at
any time with thirty (30) days advance notice. Consultant is not entitled to
any severance.
