Exhibit 10.11
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered into in
duplicate and shall be effective on June 3, 2005 ("Effective Date"), by and
between Aegis Assessments, Inc., a Delaware corporation ("Corporation"), and
Xxxx Xxxxxx ("Consultant").
RECITALS
A. It is the desire of the Corporation to develop a market for its products
in Europe and to identify prospective European technology partners for
technology development and implementation. It is further the desire of the
Corporation to develop and arrange for bank credit lines to fund the manufacture
of its products and fund the purchase or lease of its products by end-users,
including but not limited to public safety agencies, private security agencies,
and commercial facilities. The Consultant has certain specialized expertise and
experience in business development, financing, market analysis and related
services. The Consultant desires to assist the Corporation in its business
strategies and development of such banking and customer relationships throughout
Europe.
B. It is further the desire of the Corporation to engage the services of
the Consultant to consult with the Corporation regarding the development,
implementation and commercial exploitation of the Corporation's Aegis
SafetyNet(TM) technologies and related products in European markets; and to
advise the Corporation on business strategies, including but not limited to
identifying companies as potential acquisition targets, partners for technology
development, or joint-venturers; and, further, to consult with the Corporation
in arranging financing and bank credit lines.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of the parties
shall commence on the Effective Date and shall continue until and terminate on
June 1, 2007.
2. Consultations. The Consultant shall consult with the Board and the
officers of the Corporation, at reasonable times, and will provide research,
consultation, advice and assistance in assisting the Corporation to identify
European and international companies as potential acquisition targets, partners
for technology development, or joint-venturers; and, further, to consult with
the Corporation in arranging financing and bank credit lines. The Consultant may
1
also assist the company in researching testing and approval guidelines for its
products in the European public and commercial markets. The Consultant shall
coordinate his efforts with any other consultants, employees, independent
contractors, agents, representatives, or other persons designated by the
Corporation who may also be assisting the Corporation in these matters.
3. Additional Services. The Consultant may assist the Corporation in
identifying European persons or firms knowledgeable in listing standards for
European stock exchanges and will assist the Corporation in analyzing each such
exchange's quantitative standards. The parties recognize that the fact that an
applicant may meet an exchange's quantitative standards does not necessarily
mean that its application for initial listing will be approved, and the
Consultant makes no guarantee or representation that the services the Consultant
provides hereunder will result in a listing on any foreign exchange. During the
term of this Agreement the Consultant shall, at his own expense, maintain
physical office facilities sufficient for the purposes contemplated by this
Agreement; shall pay his own employees or subcontractors; and shall pay his own
costs of traveling to various countries within the European market as necessary
to perform under this Agreement.
4. No Management Power of Consultant. The business affairs of the
Corporation and the operation of the business of the Corporation shall be
conducted by the officers and administrative staff and employees of the
Corporation. The Consultant shall not have any power or obligation of direction,
management, supervision or control of the officers, administrative staff or
other employees of the Corporation or otherwise be involved with the management
of the business of the Corporation during the term of this Agreement.
5. Authority to Contract. The Consultant shall have no power to, and the
Consultant shall not, obligate the Corporation in any manner whatsoever to any
contract, agreement, undertaking, commitment or other obligation.
6. Compensation. As consideration for providing the above-referenced
services, in lieu of cash, the Consultant shall receive the following
compensation: an option to purchase up to 550,000 shares of the Corporation's
common stock pursuant to the Aegis Assessments 2002 Stock Option Plan; with an
exercise price of $0.10 per share and an exercise period of six (6) months.
7. Services of Consultant Not Exclusive. The Consultant shall devote such
time as is necessary to fulfill his obligations to the Corporation specified in
this Agreement. The Consultant may represent, perform services for, and be
employed by, any additional persons as the Consultant, in the Consultant's sole
discretion, determines to be necessary or appropriate; provided, however, that
such performance by Consultant does not interfere with Consultant's performance
of services to the Corporation specified in this Agreement.
2
8. Relationship Created. The Consultant is not an employee of the
Corporation for any purpose whatsoever, but is an independent contractor. The
Corporation is interested only in the results obtained by the Consultant. The
Consultant shall have the sole and exclusive control of the manner and means of
performing. Accordingly, and without limitation, the Corporation shall not have
the right to require the Consultant to collect accounts, investigate customer or
shareholder complaints, attend meetings, periodically report to the Corporation,
follow prescribed itineraries, keep records of business transacted, make
adjustments, conform to particular policies of the Corporation, or do anything
else outside of requiring the Consultant to consult with the Corporation
concerning the development and implementation of the SafetyNet.(TM) All expenses
and disbursements, including, but not limited to, those for travel and
maintenance, entertainment, office, clerical and general administrative
expenses, that may be incurred by the Consultant in connection with this
Agreement shall be borne and paid wholly and completely by the Consultant, and
the Corporation shall not be in any way responsible or liable therefor.
9. New Developments. Consultant agrees that all designs, plans, reports,
specifications, drawings, inventions, processes, and other information or items
produced by Consultant concerning the development and implementation of the
SafetyNet(TM) will be assigned to the Corporation as the sole and exclusive
property of the Corporation and the Corporation's assigns, nominees and
successors, as will any copyrights, patents or trademarks obtained by Consultant
while performing services under this Agreement concerning the development and
implementation of the SafetyNet(TM). On request and at the Corporation's
expense, Consultant agrees to help the Corporation obtain patents and copyrights
for any new developments. This includes providing data, plans, specifications,
descriptions, documentation, and other information, as well as assisting the
Corporation in completing any required application or registration.
10. Non-Disclosure of Proprietary and Confidential Information By
Consultant. During the term of this Agreement, Consultant may have access to
Corporation Proprietary Information (as used in this Agreement, the term
"Corporation Proprietary Information" shall mean and include, without
limitation, any and all marketing and sales data, plans and strategies,
financial projections, client lists, prospective client lists, promotional
ideas, data concerning the Corporation's services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable, "know-how",
training and sales techniques, and any other information of a similar nature
disclosed to Consultant or otherwise made known to Consultant as a consequence
of or through this Agreement during the term hereof. The term Corporation
Proprietary Information shall not include any information that (i) at the time
of the disclosure or thereafter is or becomes generally available to and known
by the public, other than as a result of a disclosure by Consultant or any agent
or representative of Consultant in violation of this Agreement, or (ii) was
available to Consultant on a non-confidential basis from a source other than the
Corporation, or any of the Corporation's officers, directors, employees, agents
or other representatives) or other information and data of a secret and
proprietary nature which the Corporation desires to keep confidential.
Consultant (and any of his affiliates, related entities, partners, agents and/or
employees) agrees and acknowledges that the Corporation has exclusive
proprietary rights to all Corporation Proprietary Information, and Consultant
hereby assigns to the Corporation all rights that he might otherwise possess in
any Corporation Proprietary Information. Except as required in the performance
of Consultant's duties to the Corporation, Consultant will not at any time
during or after the term hereof, directly or indirectly use, communicate,
disclose, disseminate, lecture upon, publish articles or otherwise put in the
public domain, any Corporation Proprietary Information. Consultant agrees to
deliver to the Corporation any and all copies of Corporation Proprietary
Information in the possession or control of Consultant upon the expiration or
termination of this Agreement, or at any other time upon request by the
Corporation. The Corporation shall periodically, but not less than quarterly,
provide to Consultant a list of any and all copies of Corporation Proprietary
Information in the possession or control of Consultant. The provisions of this
section shall survive the termination of this Agreement.
3
11. Non-Competition and Non-Circumvention by Consultant. In consideration
and recognition of the fact that Consultant has access to Corporation
Proprietary Information under the terms and provisions of this Agreement and
that the Corporation will be introducing Consultant to various customers and
potential customers, product manufacturers, retailers and distributors,
Consultant represents, warrants and covenants to the Corporation as follows:
(a) Consultant shall at no time disclose to any person, without the
Corporation's prior written consent, any of the terms, conditions
or provisions specified in this Agreement unless such disclosure
is lawfully required by any federal governmental agency or is
otherwise required to be disclosed by law or is necessary in any
legal proceeding regarding the subject matter of this Agreement.
(b) During the term of this Agreement, Consultant shall not
circumvent the Corporation for the purpose of transacting any
business with any person or entity which business shall interfere
with any relationship whatsoever between such person or entity
and the Corporation, or use any Corporation Proprietary
Information to compete with the business of the Corporation.
Consultant shall not solicit any of the Corporation's employees,
independent contractors or agents for employment. Consultant
shall not hire or engage in any way, any enterprise or person
that competes with, or is engaged in a business substantially
similar to, the business of the Corporation.
(c) Consultant shall not for a period of two (2) years immediately
following the termination of this Agreement with Corporation,
either directly or indirectly (i) make known to any person, firm
or corporation the names or addresses of any of the Corporation's
clients or any other information pertaining to them or the
Corporation's products or services; (ii) call on, solicit, or
take away, or attempt to call on, solicit or take away any of the
Corporation's clients either on Consultant's behalf or that of
another person, firm or corporation.
4
(d) Consultant shall not, during the term hereof or for a period of
two (2) years following such term, enter into an agreement or
contract directly with any manufacturer, retailer or distributor
introduced to Consultant by the Corporation for any services
provided by the Corporation herein or for any similar services.
The Corporation shall periodically, but not less than quarterly,
provide to Consultant a list of manufacturers, retailers, and
distributors that the Corporation has introduced to Consultant.
(e) Consultant acknowledges and agrees that the representations,
warranties and covenants made by Consultant and set forth in this
section are material and that the Corporation would not enter
into this Agreement without Consultant's making such
representations, warranties and covenants to the Corporation.
(f) Consultant acknowledges and agrees that any breach by Consultant
of the representations, warranties and covenants contained herein
will cause irreparable harm and loss to the Corporation, which
harm and loss cannot be reasonably or adequately compensated in
damages in an action at law. Therefore, Consultant expressly
agrees that, in addition to any other rights or remedies which
the Corporation may possess, the Corporation shall be entitled to
injunctive and other equitable relief to prevent or remedy a
breach of the representations, warranties and covenants made by
Consultant herein.
(g) The terms and provisions of this section shall survive the
termination of this Agreement for a period of two (2) years.
12. Indemnification. Each party shall defend and hold the other party
harmless from and against, and shall indemnify the other party for, any loss,
liability, damage, judgment, penalty or expense (including administrative costs
and expenses, attorney's fees and costs of defense) suffered or incurred by any
person, or to any property, in relation to any action or inaction taken by such
party, whether intentional, negligent or otherwise, or by any of such party's
affiliates, directors, officers, employees, representatives or agents (including
attorneys, accountants and financial advisors).
13. Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future statutes, orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions defined by this Agreement.
5
14. Notices. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by facsimile transmission and
shall be deemed to have been duly given (i) on the date of service, if delivered
in person or by facsimile transmission (with the facsimile confirmation of
transmission receipt serving as confirmation of service); or (ii) 48 hours after
mailing by first class, registered or certified mail, postage prepaid, and
properly addressed as follows:
If to the Corporation: Aegis Assessments, Inc.
0000 X. Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxxxx, XX 00000
If to the Consultant: Xxxx Xxxxxx
3495 Cambie #349
Xxxxxxxxx, XX X0X0X0
or at such other address as the party affected may designate in a written notice
to such other party in compliance with this paragraph.
15. Entire Agreement. This Agreement constitutes the final, complete, and
exclusive agreement between the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral
negotiations, agreements, and understandings. This Agreement may be amended only
by an instrument in writing which expressly refers to this Agreement and
specifically states that such instrument is intended to amend this Agreement and
is signed on behalf of both parties.
16. Execution in Counterparts. This Agreement many be executed in several
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
17. Choice of Law and Consent to Jurisdiction. All questions concerning the
validity, interpretation or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties, shall be governed by, and resolved in accordance with, the laws of the
State of Arizona. Any and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be litigated in
courts having situs within the State of Arizona.
18. Assignability. Neither party shall sell, assign, transfer, convey or
encumber this Agreement or any right or interest in this Agreement or pursuant
to this Agreement, or suffer or permit any such sale, assignment, transfer or
encumbrance to occur by operation of law without the prior written consent of
the other party.
6
19. Consent to Agreement. By executing this Agreement, each party, for
himself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
20. Attorney's Fees. In the event of a legal proceeding between the parties
to enforce a provision under this Agreement, the prevailing party to such action
shall be entitled to recover from the other party its reasonable attorney's fees
and costs for participating in the legal action.
21. Severability. To the extent any provision of this Agreement shall be
determined to be unlawful or otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder of this Agreement,
and this Agreement shall be reformed to the extent necessary to carry out its
provisions to the greatest extent possible. In the absence of such reformation,
such part of such provision shall be considered deleted from this Agreement and
the remainder of this Agreement shall be unaffected and shall continue in full
force and effect. In furtherance and not in limitation of the foregoing, should
the duration or geographical extent of, or business activities covered by any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law, then such provision shall be construed to cover only that
duration, extent or activities which may validly and enforceably be covered. To
the extent any provision of this Agreement shall be declared invalid or
unenforceable for any reason by any Governmental or Regulatory Authority in any
jurisdiction, this Agreement (or provision thereof) shall remain valid and
enforceable in each other jurisdiction where it applies. Both parties
acknowledge the uncertainty of the law in this respect and expressly stipulate
that this Agreement shall be given the construction that renders its provisions
valid and enforceable to the maximum extent (not exceeding its express terms)
possible under applicable law.
IN WITNESS WHEREOF the parties have executed this Agreement in duplicate
and in multiple counterparts, each of which shall have the force and effect of
an original, on the date specified in the preamble of this Agreement.
CORPORATION: CONSULTANT:
Aegis Assessments, Inc.,
a Delaware corporation
By: /s/Xxxxxxx Xxxxxxx /s/ Xxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxx Xxxxxx
Its: President
7
