1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 1st day of
October 2001 (the "Effective Date") by and between ACT Financial Services, Inc.
("ACT" or "Consultant"), an Arizona Corporation and K. Xxxx Xxxxxxx, Esq.
("Xxxxxxx" or "Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the
"Company"), a Colorado corporation, D.B.A. novahead, Inc. and any of its
successor corporations acquired or merged with any other company. The Directors
of the Company have approved this Agreement.
The Company desires to engage ACT a Subchapter S corporation, and its
President Xxxxxx X. Xxxxxx (collectively, "ACT" or "Consultant"), a 100%
stockholder and Xxxxxxx subject to the terms and conditions of this Agreement,
in performing such services for the Company.
For the purposes of Xxxxxx performing consultant services, these services
will be deemed as performed under the corporate umbrella of "ACT."
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultants and Consultants hereby agree to hold
themselves available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services rendered to the Company's management shall
include but not be limited to (a) advice concerning the corporate planning and
development of the Company; and or assistance in marketing and promotions of any
or all products of the Company; (b) advice and or assistance concerning
potential merger and/or acquisition candidates for the Company; (d) assistance
with Management and with its corporate attorneys, its auditing and accounting
staff as to the Federal and State Securities Laws filing requirements with AICPA
standards and procedures (e) other bona fide services.
2. TERM
The term of this Agreement ("Term") for the consulting services shall begin as
of the Effective Date and shall terminate one (1) year thereafter. Anything to
the contrary contained herein notwithstanding either Party may terminate this
Agreement with or without cause. The terminating party shall give written
notice to the other party of its intent to terminate the Agreement at least
thirty (30) days prior to the intended effective date of termination. The
termination of the consulting services shall not impair the consultant's rights
to exercise their stock option.
2
3. COMPENSATION
A. WARRANTS
Each Consultant or his nominee(s) shall receive compensation in the form of a
Warrant to purchase five hundred thousand (500,000) shares of the Company's
Common Stock (the "Warrants"). The Warrants shall be exercisable at a price of
$0.50 per Share. The Warrants shall be deemed exercisable immediately after the
Company has received a trading symbol and is publicly trading on any exchange.
Further, the Warrants shall be deemed exercisable if the Company becomes a
public company through a merger to another public trading company, or is
acquired by a public corporation or by transfer of assets through a sale, or by
an Initial Public Offering, "IPO".
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company, it will register the shares underlying the Warrant with the Securities
and Exchange Commission.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultants are acting as independent contractors in
performing their services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that both Consultants and/or Act's
president, Xxxxxx X. Xxxxxx may, from time to time, perform services for,
receive remuneration from and/or hold equity positions in entities other than
the Company. Consultants are under no obligation to disclose to the Company the
nature of such services or any remuneration received.
5. EXPENSES
Consultants shall be responsible for all costs and expenses incident to
Consultants performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of each
Consultant and its President. Consultant ACT and its President Xxxxxx X. Xxxxxx
and Consultant Xxxxxxx shall therefore not voluntarily or by operation of law
assign or otherwise transfer the obligations incurred on its part pursuant to
the terms of this Agreement without the prior written consent of the Company.
Any attempt at assignment or transfer by Consultants of its obligations without
such consent shall be wholly void. This Agreement shall be binding upon and
inure to the benefit of the successors-in-interest, assignees and personal
representatives of the respective parties.
3
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultants
and/or its representatives with certain Confidential Information (as defined
below). In consideration of the Company Publishing (prior to and subsequent to
the date hereof) such Confidential Information, Consultants agree as follows:
(a) Confidential Information. Confidential Information means any and all
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memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultants, its agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing.
The term Confidential Information shall not include such portions of the
Confidential Information which (i) are or become generally available to the
public other than as a result of a disclosure by Consultants, its agents,
representatives or employees, or (ii) becomes available to Consultants on a
non-confidential basis from a source other than the Company or its agents and if
Consultants do not know they are prohibited from disclosing such Confidential
Information by a legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultants, or their agents, representatives
or employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultants, their agents, representatives or
employees, other than in connection with this Agreement. Consultants
agree to reveal the Confidential Information only to their agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultants of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by their agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultants, their agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential
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Information that consists of analyses, compilations, forecasts,
studies or other documents prepared by Consultants, their agents,
representatives or employees and oral Confidential Information may be
retained by Consultants and kept confidential and subject to the terms
of this Confidentiality Agreement or destroyed upon the request of the
Company. Such destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultants acknowledge that the
------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultants or anyone to whom they
----------------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Consultant's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Consultants will provide
the Company with prompt notice so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Consultants will furnish only that portion of the
Confidential Information which it is advised by written opinion of its
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information. In any event, neither
Consultant nor anyone to whom it transmits the Confidential
Information pursuant to this Confidentiality Agreement will oppose
action by the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded
the Confidential Information.
(f) Enforcement. Consultants acknowledge that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and they hereby in advance agree to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultants or its directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then it shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom.
(g) Reciprocal Nature of Section 7. In the event Consultants provide
----------------------------------
Confidential Information to the Company, Consultants shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx X. Xxxxxx
ACT Financial Services, Inc.
00000 X. Xxxxx Xxxx., Xxx 000 # 485
Phoenix, AZ. 85258
CONSULTANT K. Xxxx Xxxxxxx, Esq.
0000 X. Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxxx XX 00000
COMPANY
Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, Inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANTS
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By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the fall and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
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XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT CONSULTANT
---------- ----------
ACT FINANCIAL SERVICES, INC. K. XXXX XXXXXXX, ESQ.
BY BY
---------------------------- ----------------------------
XXXXXX X. XXXXXX, PRESIDENT K. XXXX XXXXXXX ESQ.
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 7TH day of
January 2002 (the "Effective Date") by and between ACT Financial Services, Inc.
("ACT" or "Consultant"), an Arizona Corporation and K. Xxxx Xxxxxxx, Esq.
("Xxxxxxx" or "Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the
"Company"), a Colorado corporation, D.B.A. novahead, Inc. and any of its
successor corporations acquired or merged with any other company. The Directors
of the Company have approved this Agreement.
The Company desires to engage ACT a Subchapter S corporation, and its
President Xxxxxx X. Xxxxxx (collectively, "ACT" or "Consultant"), a 100%
stockholder and Xxxxxxx subject to the terms and conditions of this Agreement,
in performing such services for the Company.
For the purposes of Xxxxxx performing consultant services, these services
will be deemed as performed under the corporate umbrella of "ACT."
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultants and Consultants hereby agree to hold
themselves available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services rendered to the Company's management shall
include but not be limited to (a) interface with the Company's securities
counsel; (b) interface with the Company's certified Public Accountant and its
accountants (c) assist with record keeping, and (d) peform other bona fide
services.
2. TERM
The term of this Agreement ("Term") for the consulting services shall begin as
of the Effective Date and shall terminate one (1) year thereafter. Anything to
the contrary contained herein notwithstanding either Party may terminate this
Agreement with or without cause. The terminating party shall give written
notice to the other party of its intent to terminate the Agreement at least
thirty (30) days prior to the intended effective date of termination. The
termination of the consulting services shall not impair the consultant's rights
to exercise their stock option.
2
3. COMPENSATION
A. WARRANTS
Each Consultant or his nominee(s) shall receive compensation in the form of a
Warrant to purchase five hundred thousand (500,000) shares of the Company's
Common Stock (the "Warrants"). The Warrants shall be exercisable at a price of
$0.50 per Share. The Warrants shall be deemed exercisable immediately after the
Company has received a trading symbol and is publicly trading on any exchange.
Further, the Warrants shall be deemed exercisable if the Company becomes a
public company through a merger to another public trading company, or is
acquired by a public corporation or by transfer of assets through a sale, or by
an Initial Public Offering, "IPO".
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company, it will register the shares underlying the Warrant with the Securities
and Exchange Commission.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultants are acting as independent contractors in
performing their services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that both Consultants and/or Act's
president, Xxxxxx X. Xxxxxx may, from time to time, perform services for,
receive remuneration from and/or hold equity positions in entities other than
the Company. Consultants are under no obligation to disclose to the Company the
nature of such services or any remuneration received.
5. EXPENSES
Consultants shall be responsible for all costs and expenses incident to
Consultants performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of each
Consultant and its President. Consultant ACT and its President Xxxxxx X. Xxxxxx
and Consultant Xxxxxxx shall therefore not voluntarily or by operation of law
assign or otherwise transfer the obligations incurred on its part pursuant to
the terms of this Agreement without the prior written consent of the Company.
Any attempt at assignment or transfer by Consultants of its obligations without
such consent shall be wholly void. This Agreement shall be binding upon and
inure to the benefit of the successors-in-interest, assignees and personal
representatives of the respective parties.
3
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultants
and/or its representatives with certain Confidential Information (as defined
below). In consideration of the Company Publishing (prior to and subsequent to
the date hereof) such Confidential Information, Consultants agree as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultants, its agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing.
The term Confidential Information shall not include such portions of the
Confidential Information which (i) are or become generally available to the
public other than as a result of a disclosure by Consultants, its agents,
representatives or employees, or (ii) becomes available to Consultants on a
non-confidential basis from a source other than the Company or its agents and if
Consultants do not know they are prohibited from disclosing such Confidential
Information by a legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultants, or their agents, representatives
or employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultants, their agents, representatives or
employees, other than in connection with this Agreement. Consultants
agree to reveal the Confidential Information only to their agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultants of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by their agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultants, their agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
forecasts, studies or other
4
documents prepared by Consultants, their agents, representatives or
employees and oral Confidential Information may be retained by
Consultants and kept confidential and subject to the terms of this
Confidentiality Agreement or destroyed upon the request of the
Company. Such destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultants acknowledge that the
------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultants or anyone to whom they
----------------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Consultant's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Consultants will provide
the Company with prompt notice so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Consultants will furnish only that portion of the
Confidential Information which it is advised by written opinion of its
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information. In any event, neither
Consultant nor anyone to whom it transmits the Confidential
Information pursuant to this Confidentiality Agreement will oppose
action by the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded
the Confidential Information.
(f) Enforcement. Consultants acknowledge that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and they hereby in advance agree to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultants or its directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then it shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom.
(g) Reciprocal Nature of Section 7. In the event Consultants provide
----------------------------------
Confidential Information to the Company, Consultants shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx X. Xxxxxx
ACT Financial Services, Inc.
00000 X. Xxxxx Xxxx., Xxx 000 # 485
Phoenix, AZ. 85258
CONSULTANT K. Xxxx Xxxxxxx, Esq.
0000 X. Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxxx XX 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, Inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANTS
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
6
12. COMPLETE AGREEMENT
This Agreement constitutes the fall and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
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XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT CONSULTANT
---------- ----------
ACT FINANCIAL SERVICES, INC. K. XXXX XXXXXXX, ESQ.
BY BY
---------------------------- -------------------------
XXXXXX X. XXXXXX, PRESIDENT K. XXXX XXXXXXX ESQ.
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 10 day of
December 2001 (the "Effective Date") by and between Xxxxxx Xxxxxx ("Xxxxxx" or
"Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"), a
Colorado corporation, D.B.A. novahead, inc. and any of its successor
corporations acquired or merged with any other company.
The Company desires to engage Xxxxxx subject to the terms and conditions of
this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if Xxxxxx fails to bring a customer to the Company
acceptable to the Company. The Company agrees to not contact any customer
introduced by Consultant for a period of eighteen (18) months to the exclusion
of Consultant.
2. TERM
The term of this Agreement ("Term") as to the consulting services shall begin as
of the Effective Date and shall terminate one (1) year thereafter. Anything to
the contrary contained herein notwithstanding either Party may terminate this
Agreement with cause. The terminating party shall give written notice to the
other party of its intent to terminate the Agreement at least thirty (30) days
prior to the intended effective date of termination. Termination of the
Agreement by the Company shall not relieve it of its obligation to allow
Consultant to exercise Warrants he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) shall receive compensation in the form of a Warrant
to purchase two hundred and fifty thousand (250,000) shares of the Company's
Common Stock (the "Warrant"). The Warrant shall be exercisable at a price of
$0.50 per Share.
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
Xxxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
3
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of
4
the Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees, will be returned to the Company.
That portion of the Confidential Information that consists of
analyses, compilations, forecasts, studies or other documents prepared
by Consultant, his agents, representatives or employees and oral
Confidential Information may be retained by Consultant and kept
confidential and subject to the terms of this Confidentiality
Agreement or destroyed upon the request of the Company. Such
destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
-------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
-----------------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
-----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx Xxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX. 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements,
6
either oral or in writing, between the Parties with respect to the subject
matter contained herein. Each Party to this Agreement acknowledges that any
Party, or anyone herein has made no representations, inducements, promises or
agreements, oral or otherwise. Further, the Parties agree that this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest. No waiver of any provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
-------
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXXXX XXXXXX
BY
----------------------------
XXXXXX XXXXXX
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 26 day of
October 2001 (the "Effective Date") by and between Xxxxxxx X. Xxxxxx ("Strand"
or "Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"),
a Colorado corporation, D.B.A. novahead, inc. and any of its successor
corporations acquired or merged with any other company.
The Company desires to engage Strand subject to the terms and conditions of
this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agree to hold
themselves available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services rendered to the Company's management shall
include but not be limited to (a) advice concerning the corporate planning and
development of the Company; and or (b) assistance in marketing and promotions of
any or all products of the Company; (c) other bona fide services.
2. TERM
The term of this Agreement ("Term") as to the consulting services shall begin as
of the Effective Date and shall terminate two (2) year thereafter. Any change
herein is only by mutal agreement and negotiated, therefore agreed to in writing
by the parties hereto.
3. COMPENSATION
A. WARRANTS
Each Consultant or his nominee(s) shall receive compensation in the form of a
Warrant to purchase two hundred & fifty thousand (250,000) shares of the
Company's Common Stock (the "Warrants"). The Warrants shall be exercisable at a
price of $0.50 per Share. The Warrants shall be deemed exercisable immediately
after the Company has received a trading symbol and is publicly trading on any
exchange. Further, the Warrants shall be deemed exercisable if the Company
becomes a public company through a merger to another public trading company, or
is acquired by a public corporation or by transfer of assets through a sale, or
by an Initial Public Offering, "IPO".
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the OTC Bulletin Board, it will register the shares underlying the
Warrant according to Federal Law with the Securities and Exchange Commission.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant are acting as independent contractors in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of each
Consultant. Consultant Strand shall therefore not voluntarily or by operation of
law assign or otherwise transfer the obligations incurred on its part pursuant
to the terms of this Agreement without the prior written consent of the Company.
Any attempt at assignment or transfer by Consultant of its obligations without
such consent shall be wholly void. This Agreement shall be binding upon and
inure to the benefit of the successors-in-interest, assignees and personal
representatives of the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
its representatives with certain Confidential Information (as defined below).
In consideration of the Company Publishing (prior to and subsequent to the date
hereof) such Confidential Information, Consultant agree as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and
3
records containing information concerning the Company which is not
available to the general public and which the Company considers
proprietary or confidential which it will provide or has previously
provided to Consultant, its agents or representatives, together with
analyses, compilations, forecasts, studies or other documents prepared
by the Company, its agents, representatives (including lawyers,
accountants and financial advisors) or employees which contain or
otherwise reflect the foregoing described information, as well as any
oral communications with respect to the foregoing.
The term Confidential Information shall not include such portions of the
Confidential Information which (i) are or become generally available to the
public other than as a result of a disclosure by Consultant, its agents,
representatives or employees, or (ii) becomes available to Consultant on a
non-confidential basis from a source other than the Company or its agents and if
Consultant do not know they are prohibited from disclosing such Confidential
Information by a legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agree to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees and oral Confidential Information
may be retained by Consultant and kept confidential and subject to the
terms of this Confidentiality Agreement or destroyed upon the request
of the Company. Such destruction will be confirmed in writing to the
Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
-------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly
4
disclaims any and all liability that may be based on the Confidential
Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom they
-----------------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Consultant's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Consultant will provide
the Company with prompt notice so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of its
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information. In any event, neither
Consultant nor anyone to whom it transmits the Confidential
Information pursuant to this Confidentiality Agreement will oppose
action by the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded
the Confidential Information.
(f) Enforcement. Consultant acknowledge that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and they hereby in advance agree to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or its directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then it shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom.
(g) Reciprocal Nature of Section 7. In the event Consultant provide
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
5
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxxx X. Xxxxxx
0000 X. 00xx Xxxxxx
Xxxxxxx, XX. 00000
COMPANY
Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the fall and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or his respective successors-in-interest.
13. UNENFORCEABLE TERMS
6
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform his obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in his
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
IN WITNESS WHEREOF, in signing the Parties hereto are in full
agreement having executed this Agreement as of the day and year as first above
written in its terms and conditions.
COMPANY
-------
7
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXXXXX X. XXXXXX
BY
----------------------------
XXXXXXX X. XXXXXX
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 26 day of
October 2001 (the "Effective Date") by and between Xxxxx X. German ("German" or
"Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"), a
Colorado corporation, D.B.A. novahead, inc. and any of its successor
corporations acquired or merged with any other company.
The Company desires to engage German subject to the terms and conditions of
this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agree to hold
themselves available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services rendered to the Company's management shall
include but not be limited to (a) advice concerning the corporate planning and
development of the Company; and or (b) assistance in marketing and promotions of
any or all products of the Company; (c) other bona fide services.
2. TERM
The term of this Agreement ("Term") as to the consulting services shall begin as
of the Effective Date and shall terminate two (2) year thereafter. Any change
herein is only by mutal agreement and negotiated, therefore agreed to in writing
by the parties hereto.
3. COMPENSATION
A. WARRANTS
Each Consultant or his nominee(s) shall receive compensation in the form of a
Warrant to purchase two hundred & fifty thousand (250,000) shares of the
Company's Common Stock (the "Warrants"). The Warrants shall be exercisable at a
price of $0.50 per Share. The Warrants shall be deemed exercisable immediately
after the Company has received a trading symbol and is publicly trading on any
exchange. Further, the Warrants shall be deemed exercisable if the Company
becomes a public company through a merger to another public trading company, or
is acquired by a public corporation or by transfer of assets through a sale, or
by an Initial Public Offering, "IPO".
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the OTC Bulletin Board, it will register the shares underlying the
Warrant according to Federal Law with the Securities and Exchange Commission.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant are acting as independent contractors in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of each
Consultant. Consultant Strand shall therefore not voluntarily or by operation of
law assign or otherwise transfer the obligations incurred on its part pursuant
to the terms of this Agreement without the prior written consent of the Company.
Any attempt at assignment or transfer by Consultant of its obligations without
such consent shall be wholly void. This Agreement shall be binding upon and
inure to the benefit of the successors-in-interest, assignees and personal
representatives of the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
its representatives with certain Confidential Information (as defined below).
In consideration of the Company Publishing (prior to and subsequent to the date
hereof) such Confidential Information, Consultant agree as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and
3
records containing information concerning the Company which is not
available to the general public and which the Company considers
proprietary or confidential which it will provide or has previously
provided to Consultant, its agents or representatives, together with
analyses, compilations, forecasts, studies or other documents prepared
by the Company, its agents, representatives (including lawyers,
accountants and financial advisors) or employees which contain or
otherwise reflect the foregoing described information, as well as any
oral communications with respect to the foregoing.
The term Confidential Information shall not include such portions of the
Confidential Information which (i) are or become generally available to the
public other than as a result of a disclosure by Consultant, its agents,
representatives or employees, or (ii) becomes available to Consultant on a
non-confidential basis from a source other than the Company or its agents and if
Consultant do not know they are prohibited from disclosing such Confidential
Information by a legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agree to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees and oral Confidential Information
may be retained by Consultant and kept confidential and subject to the
terms of this Confidentiality Agreement or destroyed upon the request
of the Company. Such destruction will be confirmed in writing to the
Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
-------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly
4
disclaims any and all liability that may be based on the Confidential
Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom they
-----------------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Consultant's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Consultant will provide
the Company with prompt notice so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of its
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information. In any event, neither
Consultant nor anyone to whom it transmits the Confidential
Information pursuant to this Confidentiality Agreement will oppose
action by the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded
the Confidential Information.
(f) Enforcement. Consultant acknowledge that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and they hereby in advance agree to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or its directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then it shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom.
(g) Reciprocal Nature of Section 7. In the event Consultant provide
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
5
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxx X. German
0000 X. 00xx Xxxxxx
Xxxxxxx, XX. 00000
COMPANY
Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 X. Xxxxxxxx, Xxx 000
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the fall and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or his respective successors-in-interest.
13. UNENFORCEABLE TERMS
6
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform his obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in his
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
-------
7
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXXX X. GERMAN
BY
----------------------------
XXXXX X. GERMAN
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 15th day of
December 2001 (the "Effective Date") by and between Xxxxxx Xxxxxx Xxxxxxxxxxx
("Xxxxxxxxxxx" or "Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc.,
(the "Company"), a Colorado corporation, D.B.A. novahead, inc. and any of its
successor corporations acquired or merged with any other company.
The Company desires to engage Xxxxxxxxxxx subject to the terms and
conditions of this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if Xxxxxxxxxxx fails to introduce a customer to the
Company that is acceptable to the Company. The Company agrees to not contact
any customer introduced by Consultant for a period of eighteen (18) months to
the exclusion of Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective Date and
shall terminate one (1) year thereafter. Anything to the contrary contained
herein notwithstanding either Party may terminate this Agreement with cause.
The terminating party shall give written notice to the other party of its intent
to terminate the Agreement at least thirty (30) days prior to the intended
effective date of termination. Termination of the Agreement by the Company
shall not relieve it of its obligation to allow Consultant to exercise Warrants
he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) shall receive compensation in the form of a Warrant
to purchase two hundred and fifty thousand (250,000) shares of the Company's
Common Stock (the "Warrant"). The Warrant shall be exercisable at a price of
$0.50 per Share.
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
Xxxxxxxxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
3
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of
4
the Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees, will be returned to the Company.
That portion of the Confidential Information that consists of
analyses, compilations, forecasts, studies or other documents prepared
by Consultant, his agents, representatives or employees and oral
Confidential Information may be retained by Consultant and kept
confidential and subject to the terms of this Confidentiality
Agreement or destroyed upon the request of the Company. Such
destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
--------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
----------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx Xxxxxx Xxxxxxxxxxx
10695 E. Autumn Sage Drive
Scottsdale, Az. 85259
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements,
6
either oral or in writing, between the Parties with respect to the subject
matter contained herein. Each Party to this Agreement acknowledges that any
Party, or anyone herein has made no representations, inducements, promises or
agreements, oral or otherwise. Further, the Parties agree that this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest. No waiver of any provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
-------
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXXXX XXXXXX XXXXXXXXXXX
BY
----------------------------
XXXXXX XXXXXX XXXXXXXXXXX
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 20th day of
December 2001 (the "Effective Date") by and between Xxxxxx Xxxxxxx ("Xxxxxxx" or
"Consultant"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"), a
Colorado corporation, D.B.A. novahead, inc. and any of its successor
corporations acquired or merged with any other company.
The Company desires to engage Xxxxxxx subject to the terms and conditions
of this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if Xxxxxxx fails to introduce a customer to the Company
that is acceptable to the Company. The Company agrees to not contact any
customer introduced by Consultant for a period of eighteen (18) months to the
exclusion of Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective Date and
shall terminate one (1) year thereafter. Anything to the contrary contained
herein notwithstanding either Party may terminate this Agreement with cause.
The terminating party shall give written notice to the other party of its intent
to terminate the Agreement at least thirty (30) days prior to the intended
effective date of termination. Termination of the Agreement by the Company
shall not relieve it of its obligation to allow Consultant to exercise Warrants
he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) shall receive compensation in the form of a Warrant
to purchase two hundred and fifty thousand (250,000) shares of the Company's
Common Stock (the "Warrant"). The Warrant shall be exercisable at a price of
$0.50 per Share.
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
Xxxxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
3
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
----------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of
4
the Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees, will be returned to the Company.
That portion of the Confidential Information that consists of
analyses, compilations, forecasts, studies or other documents prepared
by Consultant, his agents, representatives or employees and oral
Confidential Information may be retained by Consultant and kept
confidential and subject to the terms of this Confidentiality
Agreement or destroyed upon the request of the Company. Such
destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
--------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
-----------------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
------------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx Xxxxxxx
0000 X. Xxxxxxxx
Xxxxx, Xx. 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements,
6
either oral or in writing, between the Parties with respect to the subject
matter contained herein. Each Party to this Agreement acknowledges that any
Party, or anyone herein has made no representations, inducements, promises or
agreements, oral or otherwise. Further, the Parties agree that this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest. No waiver of any provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
-------
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
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XXXXXX XXXXXXX
BY
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XXXXXX XXXXXXX
1
AGREEMENT TO PROVIDE CHIEF FINANCIAL OFFICER
SERVICES TO XXXXXXXXXXX-XXXXX, INC.
D.B.A. NOVAHEAD, INC.
This Agreement to provide Chief Financial Officer services ("Agreement") is
entered into this 1st day of March 2002 (the "Effective Date") by and between
Xx. Xxxxxxx X. Xxxxx, ("Xxxxx"), an Individual with Xxxxxxxxxxx - Xxxxx, Inc.,
(the "Company"), a Colorado corporation, D.B.A. novahead, inc. and any of ITS
successor corporations acquired or merged with any other company. The Directors
of the Company have approved this Agreement.
Subject to the terms and conditions of this Agreement, the Company desires
to engage the services of Xxxxx as its Chief Financial Officer ("CFO").
Xxxxx desires to perform the services of CFO for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF XXXXX
The Company hereby engages Xxxxx and Xxxxx hereby agrees to hold himself
available to render, at the request of the Company AND AS REQUIRED TO PERFORM
RECURRING CFO FUNCTIONS IN A TIMELY MANNER, various services for the Company,
upon the terms and conditions hereinafter set forth. Such services rendered to
the Company's management shall include but not be limited to (a) setting up the
Company's accounting SYSTEM, procedures AND INTERNAL CONTROLS; (b) overseeing
the efforts of a Company employee in the compilation of the Company's accounting
records; (d) preparation of the Company's accounting records AND RELATED WORK
PAPERS for an independent AUDIT BY A CERTIFIED PUBLIC ACCOUNTING FIRM; (e)
assistance in preparation of the Company's Security and Exchange Commission
(SEC) and/or National Association of Security Dealers (NASD) reports in
accordance with SEC regulations; (f) preparation of the Company's tax returns;
(g) the use of Xxxxx'x name as the Company's CFO in press releases and any other
publications, and (h) to provide all other services generally provided by a
corporate CFO.
2. TERM
The term of this Agreement shall begin as of the Effective Date and shall
terminate one (1) year thereafter unless the Company terminates the Agreement
prior to the termination date but early termination by the Company shall not
effect the exercisability of the Warrant.
2
3. COMPENSATION
A. WARRANT
Xxxxx shall receive compensation in the form of a Warrant to purchase two
hundred and fifty thousand (250,000) shares of the Company's Common Stock (the
"Warrant"). The Warrant shall be exercisable at a price of $0.50 per Share.
The Warrant shall be deemed exercisable immediately after the Company has
received a trading symbol and is publicly trading on any exchange if Xxxxx
agrees to remain as the Company's CFO for two years. Further, the Warrant shall
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be deemed exercisable if the Company becomes a public company through a merger
to another public trading company, or is acquired by a public corporation or by
transfer of assets through a sale, or by an Initial Public Offering, "IPO".
B. REGISTRATION OF SHARES
The Company agrees that within a reasonable period of time after becoming a
publicly traded company, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
C. NON-EXCLUSIVE SERVICES
It is expressly understood that Xxxxx may act as the CFO or in any other
capacity for other companies while performing his services under this Agreement.
Xxxxx is under no obligation to disclose to the Company the nature of such
services or any remuneration received therefrom. Further, it is understood that
the Company shall pay Xxxxx on an hourly basis for rendering services to the
Company. His hourly rates as agreed to by the Company are:
Ninety Dollars ($90) for rendering ACCOUNTING AND SUPERVISORY CFO
SERVICES
One hundred dollars ($100) for rendering INCOME TAX services as a CFO
One hundred and FIFTEEN dollars ($115) for RENDERING SEC OR NASD
RELATED SERVICES OR FILINGS AS CFO
4. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Xxxxx. Xxxxx
shall therefore not voluntarily or by operation of law assign or otherwise
transfer the obligations incurred on his part pursuant to the terms of this
Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Xxxxx of his obligations without such consent shall be
wholly void. This Agreement shall be binding upon and inure to the benefit of
the successors-in-interest, assignees and personal representatives of the
respective parties.
3
5. CONFIDENTIALITY
In connection with the CFO relationship established pursuant to the terms of
this Agreement, the Company may, from time to time, furnish Xxxxx and/or his
representatives with certain Confidential Information (as defined below). Xxxxx
agrees as follows:
(a) Confidential Information. Confidential Information means any and all
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memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it may provide to
Xxxxx, his agents or representatives, together with analyses,
compilations, forecasts, studies or other documents prepared by the
Company, its agents, representatives (including lawyers, accountants
and financial advisors) or employees which contain or otherwise
reflect the foregoing described information, as well as any oral
communications with respect to the foregoing.
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Xxxxx, his agents, representatives or employees, or (ii) becomes
available to Xxxxx on a non-confidential basis from a source other
than the Company or its agents but only if Xxxxx does not know he is
prohibited from disclosing such Confidential Information by a legal,
contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Xxxxx, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Xxxxx, his agents, representatives or employees, other
than in connection with his services to the Company as its CFO. Xxxxx
agrees to reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Xxxxx of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Xxxxx shall be
responsible for any breach of this Confidentiality provision by his
agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information will be returned to the Company or destroyed upon the
request of the Company. Such destruction will be confirmed in writing
to the Company.
(d) Accuracy of Confidential Information. Xxxxx acknowledgeS that the
---------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or
4
completeness of the Confidential Information, and the Company
expressly disclaims any and all liability that may be based on the
Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Xxxxx or anyone to whom he may
----------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Xxxxx'x
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Xxxxx will provide the
Company with prompt notice so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with the
provisions of this Confidentiality Agreement. In the event that such
waiver or such protective order or other remedy is not obtained, Xxxxx
will furnish only that portion of the Confidential Information which
it is advised by written opinion of his legal advisers is legally
required and will exercise his best efforts to obtain reliable
assurance that confidential treatment will be accorded the
Confidential Information. In any event, neither Xxxxx nor anyone to
whom he transmits the Confidential Information pursuant to this
Confidentiality Agreement will not oppose action by the Company to
obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential
Information.
(f) Enforcement. Xxxxx acknowledges that remedies at law may be inadequate
-----------
to protect against breach of this Confidentiality provision, and he
hereby in advance agrees to the granting of injunctive relief in favor
of the Company without proof of actual damages. Such remedies shall
not be deemed to be the exclusive remedies for a breach of this
Confidentiality provision but shall be in addition to all other
remedies available at law or equity to the Company. In the event of
litigation relating to this Confidentiality provision, if a court of
competent jurisdiction determines that Xxxxx or his agents,
representatives or employees have breached this Confidentiality
provision then he shall be liable and pay to the Company the
reasonable legal fees incurred by the Company in connection with such
litigation, including any appeal therefrom.
6. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
7. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex, telecopies, or facsimile
transmissions addressed as follows:
5
PARTIES ADDRESS
XXXXX Xxxxxxx X. Xxxxx
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx. 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
8. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
9. AUTHORIZATION TO ENGAGE XXXXX
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by ITS terms and CONDITIONS.
10. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest.
6
11. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
12. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
13. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written.
COMPANY
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XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
INDIVIDUAL
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XXXXX
BY:
--------------------------------------
XXXXXXX X. XXXXX
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 25TH day of
March 2002 (the "Effective Date") by and between Xxxx Xxxxxx an Individual with
Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"), a Colorado corporation, D.B.A.
novahead, inc. and any of its successor corporations acquired or merged with any
other company.
The Company desires to engage Consultant subject to the terms and
conditions of this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if Consultant fails to introduce a customer to the
Company that is acceptable to the Company.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective Date and
shall terminate one (1) year thereafter. Anything to the contrary contained
herein notwithstanding either Party may terminate this Agreement with cause.
The terminating party shall give written notice to the other party of its intent
to terminate the Agreement at least thirty (30) days prior to the intended
effective date of termination. Termination of the Agreement by the Company
shall not relieve it of its obligation to allow Consultant to exercise Warrants
he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) shall receive compensation in the form of a Warrant
to purchase two hundred and fifty thousand (250,000) shares of the Company's
Common Stock (the "Warrant"). The Warrant shall be exercisable at a price of
$0.50 per Share.
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
2
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
XxXxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
3
(a) Confidential Information. Confidential Information means any and all
--------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
---------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees and oral Confidential Information
may be retained by Consultant and kept confidential and subject to the
terms of this Confidentiality Agreement or destroyed upon the request
of the Company. Such destruction will be confirmed in writing to the
Company.
4
(d) Accuracy of Confidential Information. Consultant acknowledge that the
-------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
-----------------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
5
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT
Xxxx Xxxxxx Xxxxxx
0000 X. 00xx Xx. X 000
Xxxxxxxxxx, Xxxxxxx 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein. Each Party to this
Agreement acknowledges that any Party, or anyone herein has made no
representations, inducements, promises or agreements, oral or otherwise.
Further, the Parties agree that this Agreement may be changed or amended only by
an amendment in writing signed by both of the Parties or their respective
successors-in-interest. No waiver of any provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other
6
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement having
executed this Agreement as of the day and year as first above written in its
terms and conditions.
COMPANY
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XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXX X. XXXXXX
BY
----------------------------
XXXX X. XXXXXX
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this day of
2002 (the "Effective Date") by and between Xxxx Xxxxxx "Xxxxxx" and Xxxx X.
XxXxxxx, "XxXxxxx" Individuals, collectively referred to as "Consultant" with
Xxxxxxxxxxx - Xxxxx, Inc., (the "Company"), a Colorado corporation, D.B.A.
Novahead, Inc. and any of its successor corporations acquired or merged with any
other company.
The Company desires to engage Consultant subject to the terms and
conditions of this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if XxXxxxx fails to introduce a customer to the Company
that is acceptable to the Company. The Company agrees to not contact any
customer introduced by Consultant for a period of eighteen (18) months to the
exclusion of Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective Date and
shall terminate one (1) year thereafter. Anything to the contrary contained
herein notwithstanding either Party may terminate this Agreement with cause.
The terminating party shall give written notice to the other party of its intent
to terminate the Agreement at least thirty (30) days prior to the intended
effective date of termination. Termination of the Agreement by the Company
shall not relieve it of its obligation to allow Consultant to exercise Warrants
he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) each shall receive compensation in the form of a
Warrant to purchase one hundred and twenty-five thousand (125,000) shares of the
Company's Common Stock (the "Warrant"), for a total of two hundred and fifty
thousand (250,000) shares. The Warrants shall be exercisable at a price of
$0.50 per Share.
2
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will register the shares underlying the Warrant with
the Securities and Exchange Commission.
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
XxXxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
7. CONFIDENTIALITY
3
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
----------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential Information that consists of analyses, compilations,
4
forecasts, studies or other documents prepared by Consultant, his
agents, representatives or employees and oral Confidential Information
may be retained by Consultant and kept confidential and subject to the
terms of this Confidentiality Agreement or destroyed upon the request
of the Company. Such destruction will be confirmed in writing to the
Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
--------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
----------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the
5
enforcement of this Agreement and matters pertaining to the transaction and
activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT
Xxxx X. Xxxxxx
Xxxx X. XxXxxxx
0000 X. 00xx Xxx X 000
Xxxxxxxxxx, XX. 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements,
6
either oral or in writing, between the Parties with respect to the subject
matter contained herein. Each Party to this Agreement acknowledges that any
Party, or anyone herein has made no representations, inducements, promises or
agreements, oral or otherwise. Further, the Parties agree that this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest. No waiver of any provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
-------
XXXXXXXXXXX - XXXXX, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXX X. XXXXXX
BY
----------------------------
XXXX X. XXXXXX
XXXX X. XXXXXXX
BY
----------------------------
XXXX X. XXXXXXX
AGREEMENT TO PROVIDE LEGAL SERVICES TO
XXXXXXXXXXX-XXXXX, INC.
D.B.A. NOVAHEAD, INC.
This Agreement to provide Chief Financial Officer services ("Agreement") is
entered into this 25TH day of March 2002 (the "Effective Date") by and between
Xxxxxxx X. Xxxxxxxxx P.C. ("Xxxxxxxxx"), an Individual with Xxxxxxxxxxx - Xxxxx,
Inc., a Colorado corporation, dba novahead, inc. (the "Company"), and any of its
successor corporations acquired or merged with any other company.
Subject to the terms and conditions of this Agreement, the Company desires
to engage the services of Xxxxxxxxx as its Legal Counsel.
Xxxxxxxxx desires to perform the services for the Company on the terms and
conditions contained herein
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF XXXXXXXXX
The Company hereby engages Xxxxxxxxx and Xxxxxxxxx hereby agrees to hold himself
available to render, at the request of the Company various legal services for
the Company, upon the terms and conditions hereinafter set forth. Such services
rendered to the Company's management shall include but not be limited to (a)
providing legal services generally provided by a corporate CLO, including, but
not limited to, (1) rendering general legal advise to the officers and directors
of the Company, (2) reviewing contracts and other documents, (3) maintaining the
corporate minute book, (4) maintaining the active status of the Company with the
state of Arizona, (5) assisting with the preparation of filings with regulatory
bodies to the extent necessary to maintain all licenses and "good standing"
certificates, (6) filing lawsuits on behalf of the Company, (7) defending the
Company from lawsuits brought by outside Plaintiff's to the extent reasonably
practicable, and. It is expressly understood, however, that Xxxxxxxxx is not a
securities lawyer, and may seek assistance from outside counsel, when necessary,
to prepare the Company's Security and Exchange Commission and/or National
Association of Security Dealers reports in accordance with their regulations.
2. TERM
The term of this Agreement shall begin on the later of either (1) the Effective
Date, or (2) the date of the binding of directors and officers insurance, and
shall terminate one (1) year on the later date, unless either party terminates
the Agreement prior to the termination date, with or
1
without cause, or extends this Agreement in writing. Until the binding of
directors and officers insurance, Xxxxxxxxx shall extend legal services to the
Company as an outside independent contractor according to the terms and
conditions contained herein, and will use the designation of General Counsel.
3. COMPENSATION
A. WARRANT
Xxxxxxxxx has previously received a Warrant to purchase two hundred and fifty
thousand (250,000) shares of the Company's Common Stock (the "Warrant") at a
price of $0.50 per Share pursuant to a Consulting Agreement dated March 25,
2002. The terms and conditions of said Consulting Agreement shall remain in full
force and effect, and Xxxxxxxxx will retain the Warrant pursuant to said
Consulting Agreement, separate and apart from this Agreement
It is further understood that the Company shall pay Xxxxxxxxx on an hourly basis
for rendering the above mentioned legal services in Paragraph 1.(6) and
Paragraph 1.(7) to the Company. Firestein's hourly rate as agreed to by the
Company is $150.00 per hour.
B. NON-EXCLUSIVE SERVICES
It is expressly understood that Xxxxxxxxx may act as the CLO or in any other
capacity for other companies while performing his services under this Agreement,
or maintain a private legal practice. Xxxxxxxxx is under no obligation to
disclose to the Company the nature of such services or any remuneration received
therefrom.
4. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Xxxxxxxxx.
Xxxxxxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Xxxxxxxxx of his obligations without such consent
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
5. CONFIDENTIALITY
In connection with the CFO relationship established pursuant to the terms of
this Agreement, the Company may, from time to time, furnish Xxxxxxxxx and/or his
representatives with certain Confidential Information (as defined below).
Xxxxxxxxx agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available
2
to the general public and which the Company considers proprietary or
confidential which it may provide to Xxxxxxxxx, his agents or
representatives, together with analyses, compilations, forecasts,
studies or other documents prepared by the Company, its agents,
representatives (including lawyers, accountants and financial
advisors) or employees which contain or otherwise reflect the
foregoing described information, as well as any oral communications
with respect to the foregoing.
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Xxxxxxxxx, his agents, representatives or employees, or (ii) becomes
available to Xxxxxxxxx on a non-confidential basis from a source other
than the Company or its agents but only if Xxxxxxxxx does not know he
is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
----------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Xxxxxxxxx, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Xxxxxxxxx, his agents, representatives or employees,
other than in connection with his services to the Company as its CFO.
Xxxxxxxxx agrees to reveal the Confidential Information only to his
agents, representatives and employees who need to know the
Confidential Information for the purposes described herein. These
agents, representatives or employees shall be informed by Xxxxxxxxx of
the confidential nature of the Confidential Information and these
agents, representatives or employees shall agree to act in accordance
with the terms and conditions of this Confidentiality Agreement.
Xxxxxxxxx shall be responsible for any breach of this Confidentiality
provision by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information will be returned to the Company or destroyed upon the
request of the Company. Such destruction will be confirmed in writing
to the Company.
(d) Accuracy of Confidential Information. Xxxxxxxxx acknowledgeS that the
--------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Xxxxxxxxx or anyone to whom he may
------------------
transmit the Confidential Information pursuant to this Confidentiality
Agreement becomes legally compelled to disclose any of the
Confidential Information or any information relating to Firestein's
opinion, judgment or recommendations concerning the Company as
developed from the Confidential Information, Xxxxxxxxx will provide
the Company with prompt notice so that the Company may seek a
3
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Confidentiality Agreement. In the event
that such waiver or such protective order or other remedy is not
obtained, Xxxxxxxxx will furnish only that portion of the Confidential
Information which it is advised by written opinion of his legal
advisers is legally required and will exercise his best efforts to
obtain reliable assurance that confidential treatment will be accorded
the Confidential Information. In any event, neither Xxxxxxxxx nor
anyone to whom he transmits the Confidential Information pursuant to
this Confidentiality Agreement will not oppose action by the Company
to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential
Information.
(f) Enforcement. Xxxxxxxxx acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Xxxxxxxxx or his agents, representatives or employees have breached
this Confidentiality provision then he shall be liable and pay to the
Company the reasonable legal fees incurred by the Company in
connection with such litigation, including any appeal therefrom.
6. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
7. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex, telecopies, or facsimile
transmissions addressed as follows:
PARTIES: ADDRESS:
XXXXXXXXX Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, P.C.
0000 Xxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
4
COMPANY Xxxxxx X. Xxxxxxx, CEO
Xxxxxxxxxxx - Xxxxx, Inc.
D.B.A. novahead, inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
8. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party s rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
9. AUTHORIZATION TO ENGAGE XXXXXXXXX
By executing this Agreement, the Company covenants that it has the authority
from its Board of Directors to enter into the Agreement and abide by its terms
and conditions.
10. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements, either oral or in writing, between the
Parties with respect to the subject matter contained herein Each Party to this
Agreement acknowledges that no representations, inducements, promises or
agreements oral or otherwise, have been made by any Party, or anyone herein, and
that no other Agreement, statement or promise not contained in this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest.
11. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
12. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform
5
their obligations and agreement thereunder and to give effect to the intentions
expressed in this Agreement.
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written.
XXXXXXXXXXX - XXXXX, INC., DBA NOVAHEAD, INC.
BY:
--------------------------------------
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER
BY:
--------------------------------------
XXXXXXX X. XXXXXXXXX, P.C.
6
1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 7th day of
July 2002 (the "Effective Date") by and between Xxxxxx X. Xxxxxx Xx., ("Xxxxxx"
or "Consultant"), an Individual with NOVAHEAD, inc., (the "Company"), a Colorado
corporation, and any of its successor corporations acquired or merged with any
other company.
The Company desires to engage Xxxxxx subject to the terms and conditions of
this Agreement, in performing such services for the Company.
Now, therefore, in consideration of the mutual promises, covenants and
undertakings herein contained and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged the parties hereby agree
as follows:
1. ENGAGEMENT OF CONSULTANT
The Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, at the request of the Company, independent
consulting services for the Company, upon the terms and conditions hereinafter
set forth. Such consulting services shall constitute assistance in the
marketing and promoting of the Company's product line. This Agreement shall be
rendered null and void if Xxxxxx fails to introduce a customer to the Company
that is acceptable to the Company. The Company agrees to not contact any
customer introduced by Consultant for a period of eighteen (18) months to the
exclusion of Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective Date and
shall terminate one (1) year thereafter. Anything to the contrary contained
herein notwithstanding either Party may terminate this Agreement with cause.
The terminating party shall give written notice to the other party of its intent
to terminate the Agreement at least thirty (30) days prior to the intended
effective date of termination. Termination of the Agreement by the Company
shall not relieve it of its obligation to allow Consultant to exercise Warrants
he has earned.
3. COMPENSATION
A. WARRANT
Consultant or his nominee(s) shall receive compensation in the form of a Warrant
to purchase two hundred and fifty thousand (250,000) shares of the Company's
Common Stock (the "Warrant"). The Warrant shall be exercisable at a price of
$1.00 per Share.
CASH COMMISSIONS- SEPARATE AGREEMENT ATTACHED.
B. REGISTRATION OF SHARES
The Company agrees that within one (1) month of becoming a publicly traded
company on the Over The Counter Bulletin Board (OTC-BB) exchange, subject to
Rule 144 restrictions, it will
2
register the shares underlying the Warrant when exercised with the Securities
and Exchange Commission.
Until the Shares are registered, a legend reading substantially as follows
will be placed on each and every certificate representing all or any portion of
the Shares:
"The Shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold,
assigned or transferred in the absence of an effective Registration
Statement for the Shares under the Securities Act of 1933, as amended,
receipt of a "no action" letter from the Securities and Exchange Commission
or an opinion of counsel satisfactory to the Company that the Registration
is not required under said Act."
4. INDEPENDENT CONTRACTOR
It is expressly agreed that Consultant is acting as an independent contractor in
performing his services hereunder. The Company shall not pay any contributions
to social security unemployment insurance for the benefit of Consultant, federal
or state withholding taxes nor provide any other contributions or benefits,
which might be expected in an employer-employee relationship.
The Company acknowledges that it is aware that Consultant may, from time to
time, perform services for, receive remuneration from and/or hold equity
positions in entities other than the Company. Consultant is under no obligation
to disclose to the Company the nature of such services or any remuneration
received.
5. EXPENSES
Consultant shall be responsible for all costs and expenses incident to
Consultant's performance of services as required by this Agreement.
6. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon and in
consideration of the singular personal skills and qualifications of Consultant.
Xxxxxx shall therefore not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on his part pursuant to the terms of
this Agreement without the prior written consent of the Company. Any attempt at
assignment or transfer by Consultant of his obligations without such consent
shall be wholly void. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assignees and personal representatives of
the respective parties.
3
7. CONFIDENTIALITY
In connection with the consulting relationship established pursuant to the terms
of this Agreement, the Company may, from time to time, furnish Consultant and/or
his representatives with certain Confidential Information (as defined below).
With respect to that Confidential Information, Consultant agrees as follows:
(a) Confidential Information. Confidential Information means any and all
-------------------------
memoranda, manuals, data, reports, interpretations, forecasts, market
plans, market analyses, and records containing information concerning
the Company which is not available to the general public and which the
Company considers proprietary or confidential which it will provide or
has previously provided to Consultant, his agents or representatives,
together with analyses, compilations, forecasts, studies or other
documents prepared by the Company, its agents, representatives
(including lawyers, accountants and financial advisors) or employees
which contain or otherwise reflect the foregoing described
information, as well as any oral communications with respect to the
foregoing. All written confidential information shall be stamped as
"Confidential."
The term Confidential Information shall not include such portions of
the Confidential Information which (i) are or become generally
available to the public other than as a result of a disclosure by
Consultant, his agents, representatives or employees, or (ii) becomes
available to Consultant on a non-confidential basis from a source
other than the Company or its agents and if Consultant does not know
he is prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
----------------
confidential and shall not, without the prior written consent of the
Company, be disclosed by Consultant, or his agents, representatives or
employees, in any manner whatsoever, in whole or in part, and shall
not be used by Consultant, his agents, representatives or employees,
other than in connection with this Agreement. Consultant agrees to
reveal the Confidential Information only to his agents,
representatives and employees who need to know the Confidential
Information for the purposes described herein. These agents,
representatives or employees shall be informed by Consultant of the
confidential nature of the Confidential Information and these agents,
representatives or employees shall agree to act in accordance with the
terms and conditions of this Confidentiality Agreement. Consultant
shall be responsible for any breach of this Confidentiality provision
by his agents, representatives or employees.
(c) Return of Confidential Information. Promptly upon completion or
-------------------------------------
termination of this Agreement all copies of the Confidential
Information, except for that portion of the Confidential Information
that consists of analyses, compilations, forecasts, studies or other
documents prepared by Consultant, his agents, representatives or
employees, will be returned to the Company. That portion of the
Confidential
4
Information that consists of analyses, compilations, forecasts,
studies or other documents prepared by Consultant, his agents,
representatives or employees and oral Confidential Information may be
retained by Consultant and kept confidential and subject to the terms
of this Confidentiality Agreement or destroyed upon the request of the
Company. Such destruction will be confirmed in writing to the Company.
(d) Accuracy of Confidential Information. Consultant acknowledge that the
--------------------------------------
Company makes no express or implied representation or warranty as to
the accuracy or completeness of the Confidential Information, and the
Company expressly disclaims any and all liability that may be based on
the Confidential Information efforts therein or omissions therefrom.
(e) Protective Order. In the event that Consultant or anyone to whom he
----------
transmits the Confidential Information pursuant to this
Confidentiality Agreement becomes legally compelled to disclose any of
the Confidential Information or any information relating to
Consultant's opinion, judgment or recommendations concerning the
Company as developed from the Confidential Information, Consultant
will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Confidentiality Agreement. In
the event that such waiver or such protective order or other remedy is
not obtained, Consultant will furnish only that portion of the
Confidential Information which it is advised by written opinion of his
legal advisers is legally required and will exercise its best efforts
to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
(f) Enforcement. Consultant acknowledges that remedies at law may be
-----------
inadequate to protect against breach of this Confidentiality
provision, and he hereby in advance agrees to the granting of
injunctive relief in favor of the Company without proof of actual
damages. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Confidentiality provision but shall be
in addition to all other remedies available at law or equity to the
Company. In the event of litigation relating to this Confidentiality
provision, if a court of competent jurisdiction determines that
Consultant or his directors. officers, partners, employees, agents or
advisers have breached this Confidentiality provision then he shall be
liable and pay to the Company the reasonable legal fees incurred by
the Company in connection with such litigation, including any appeal
therefrom. Company shall provide written notice of any violations of
this Agreement.
(g) Reciprocal Nature of Section 7. In the event Consultant provides
----------------------------------
Confidential Information to the Company, Consultant shall be hereby
granted the rights set forth in this Section 7 with respect to such
Confidential Information.
5
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed in all respects by and interpreted in
accordance with the laws of the State of Arizona. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement and matters
pertaining to the transaction and activities contemplated hereby.
9. NOTICES
All notices and other communications provided for or permitted hereunder can be
made by hand delivery, first class mail, telex or telecopies, "faxed" addressed
as follows:
PARTIES ADDRESS
CONSULTANT Xxxxxx X. Xxxxxx Xx.
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
COMPANY Xxxxxx X. Xxxxxxx, CEO
NOVAHEAD inc
Suite 105
0000 Xxxx Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
All such notices and communication shall be deemed to have been duly given when
delivered by hand, if personally delivered; five (5) business day after deposit
in any United States Post Office in the continental United States, postage
prepaid, if mailed; the same day of transmission if sent by facsimile
transmission; and when receipt is acknowledged or confirmed.
10. ATTORNEYS' FEES
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including
without limitation, reasonable attorney's fees and expenses incurred in
ascertaining such party's rights, in preparing to enforce or in enforcing such
party's rights under this Agreement, whether or not it was necessary for such
party to institute suit
11. AUTHORIZATION TO ENGAGE THE CONSULTANT
By executing this Agreement, the Company covenants that it has the authority to
enter into the Agreement and abide by its terms.
12. COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the Parties with regard to the subject hereof and this Agreement
supersedes any and all other agreements,
6
either oral or in writing, between the Parties with respect to the subject
matter contained herein. Each Party to this Agreement acknowledges that any
Party, or anyone herein has made no representations, inducements, promises or
agreements, oral or otherwise. Further, the Parties agree that this Agreement
may be changed or amended only by an amendment in writing signed by both of the
Parties or their respective successors-in-interest. No waiver of any provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
13. UNENFORCEABLE TERMS
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement.
14. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which may
be deemed an original, and all of which together shall constitute one and the
same instrument.
15. FURTHER ASSURANCES
From time to time each Party will execute and deliver such further instruments
and will take such other action as any other Party may reasonably request in
order to discharge and perform their obligations and agreement thereunder and to
give effect to the intentions expressed in this Agreement.
16. INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated herein in their
entirety by this reference.
17. MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate articles and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
(The remainder of this page has intentionally left blank)
7
IN WITNESS WHEREOF, in signing the Parties hereto are in full agreement
having executed this Agreement as of the day and year as first above written in
its terms and conditions.
COMPANY
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NOVAHEAD INC
BY:
--------------------------------------
XXXXXX X. XXXXXXX, PH.D.
CHIEF EXECUTIVE OFFICER
CONSULTANT
----------
XXXXXX X. XXXXXX XX.
BY
----------------------------
XXXXXX X. XXXXXX XX.
XXXXXXXXXXX-XXXXX, INC.
STOCK PURCHASE OPTION
THIS STOCK PURCHASE OPTION ("Option") certifies that, for value received,
XXXXX LAW FIRM, P.C., ("Optionee") is entitled to purchase and receive from
XXXXXXXXXXX-XXXXX, INC. a Colorado corporation, doing business as novahead,
Inc., (hereinafter sometimes called the "Company"), during the period
hereinafter provided, up to twenty five thousand (25,000) fully paid and
nonassessable shares of the voting stock of the Company (hereinafter called the
"Stock") upon surrender hereof, at the principal office of the Company in
Phoenix, Arizona, and simultaneous payment of the purchase price of fifty cents
($0.50) per share ("Purchase Price") for each share of the Stock so to be
purchased; such number of shares and such purchase price per share.
1. Stock Option. Subject to the terms and conditions set forth in this
-------------
Option, the Company hereby grants to the Optionee an Option to purchase from the
Company up to twenty five thousand (25,000) shares (the "Option Shares") of
Common Stock at an exercise price (the "Exercise Price") of fifty cents ($0.50)
per share.
2. Exercise Period. The Option is exercisable in whole at any time and
----------------
in part from time to time during the period (the "Exercise Period") commencing
on the execution of this Option and terminating on a date which is 5:00 P.M.
Phoenix, Arizona time five (5) YEARS from the execution of this Option;
provided, however, that if such date is a day on which banks in the State of
Arizona are authorized or permitted to be closed, then the Exercise Period shall
end at 5:00 P.M. Phoenix, Arizona time on the next day which is not such a day.
3. Manner of Exercise.
-------------------
(a) The Option shall be exercised by written notice of exercise in the
form of Exhibit A to this Option, addressed to the Company and signed by the
Optionee and delivered to the Company along with this Option and payment in full
of the Exercise Price with respect to the Optioned Shares as to which the Option
is being exercised. If the Option is exercised in part only, the Company will
either issue a new Option with respect to the unexercised portion of the Option
or shall make a notation on this Option reflecting the partial exercise.
(b) The Exercise Price is payable by certified or official bank check
or by personal check; provided, however, that if payment is made by bank wire,
personal check, no Optioned Shares shall be issued to Optionee until the Company
has been advised by its bank that the check has cleared.
4. Adjustment Provisions. In case the Company shall declare any
----------------------
dividend upon outstanding Stock payable in cash or in shares of Stock (or
fractions thereof), or in case the Company shall make any other distribution
upon outstanding Stock, then and in each such case the holder of this Option,
upon any exercise of all or any part hereof thereafter, will be entitled to
receive the number of shares of Stock as to which the right of purchase is being
exercised BUT WILL NOT RECEIVE the securities, cash or other property which the
holder of this Option would have received by way of such dividends or
distributions if such holder (a) had continuously since the date hereof been the
record holder of the Stock as to which the right of purchase is then being
exercised, and (b) had retained all securities which they would have received as
dividends and/or other distributions of such Stock.
If the Company shall, by subdivision, combination or reclassification of
shares or otherwise, change the outstanding shares of its Stock into a different
number or class of shares, the number and class of shares issuable upon exercise
of this Option and the Purchase Price payable upon such exercise shall be
adjusted.
In case of any reorganization or merger of the Company into any other
corporation, then each share of stock issuable upon exercise of this Option
shall be replaced for the purposes hereof by the stock or other securities or
property issuable in respect of each share of Stock of the Company upon such
reorganization or merger.
In case at any time:
(a) the Company shall offer for subscription pro rata or otherwise to
the holders of the Stock any additional shares of stock of any class or
other rights;
(b) there shall be any capital reorganization or reclassification of
the Stock of the Company, or reorganization or merger of the Company with,
or transfer of all or substantially all of its assets to, another
corporation; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice to
the holder of this Option of the date (i) on which the books of the Company
shall close, or of record fixed, for determining the shareholders entitled to
such distribution of shares, or (ii) on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of Stock of record shall participate in such
distribution of shares, or shall be entitled to exchange their Stock for
securities or other property deliverable upon such reorganization,
reclassification, merger, transfer, dissolution, liquidation or winding up, as
the case may be. Such written notice shall be given at least twenty (20) days
prior to the action in question and not less than twenty (20) days prior to the
record date or the date on which the Company's transfer books are closed in
respect thereto.
5. Transferability. The Option is not transferable by the Optionee
----------------
except in compliance with all applicable Federal and state securities laws. The
Company may require as a condition to the transfer that the Optionee shall
deliver to the Company an opinion of counsel acceptable to the Company as to the
compliance with such laws.
6. No Rights As a Stockholder. The Optionee shall have no interest in
--------------------------
and shall not be entitled to any voting rights or any dividend or other rights
or privileges of a stockholder of the Company with respect to any shares of
Common Stock issuable pursuant to this Option prior to the exercise of this
Option and payment of the Exercise Price of the Optioned Shares.
7. Reservation of Shares, Fractional Shares and Validity. The Company
------------------------------------------------------
covenants that it will at all times maintain an available and adequate reserve
of duly authorized but unissued shares of its Stock, free from preemptive
rights, sufficient to effect the full exercise of this Option as herein
provided, and that it will at all times maintain in full force and effect an
appropriate permit of the appropriate state authorities authorizing the issuance
and sale by the Company of all shares of Stock issuable upon exercise of this
Option by the holder.
No fractional shares of Stock will be issued in connection with any
purchase hereunder, but the Company shall, in lieu of such fractional shares,
make a cash payment thereof on the basis of the Purchase Price.
The Company covenants that all shares of Stock issuable upon the exercise
of this Option will, upon issuance, be validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof.
8. "Piggy Back" Registration. If at any time the Company shall
determine to register under the Securities Act of 1933 (the "Act") (including
pursuant to a demand of any shareholder of the Company exercising registration
rights) any of its Common Stock, other than under a registration statement filed
solely with respect to shares sold to employees under an employee stock or stock
option plan, it shall send to Optionee (including for this purpose as Shares any
Common Stock or Options derived or acquired from the conversion of Shares)
written notice of such determination and, if within 30 days after receipt of
such notice, such holder shall so request in writing, the Company shall use its
best efforts to include in such registration statement all or any part of the
shares of Common Stock underlying the Options to Purchase of such holder, except
that if the managing underwriter shall impose a limitation on the number of
shares of such Common Stock which may be included in any such registration
statement because, in its judgment, such limitation is necessary to effect an
orderly public distribution, the shares intended to be included by those holders
who have an incidental ("piggyback") right to include their shares in the
registration statement shall be excluded (without proration as to the shares to
be sold by the Company) to comply with such limitation, provided that such
limitation shall then be imposed pro rata (in proportion to the stock which each
holder has requested be included in the registration) with respect to all such
Common Stock whose holders have such an incidental right.
9. Governing Law. This Option and the respective rights, duties and
--------------
obligations of the Company and the Optionee pursuant to this Option, shall be
governed and construed in accordance with the laws of the State of Arizona
applicable to agreements executed and to be performed wholly within such State.
The Company and Optionee agree that (a) any legal or equitable action or
proceeding arising under or in connection with this Option shall be brought
exclusively in any Federal or state court in Maricopa County, Arizona and (b) by
execution and delivery of this Agreement, irrevocably submits to and accepts,
with respect to its properties and assets, generally and unconditionally, the
jurisdiction of the aforesaid courts.
10. Notice. Any notice which either party hereto may be required or
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permitted to give to the other shall be in writing and may be delivered
personally or by mail, postage prepaid, addressed as follows: to the Company, at
0000 Xxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: President, or
at such other address as the Company, by notice, may designate in writing from
time to time; to the Optionee, at the address shown at the end of this Option,
or at such other address as the Optionee, by notice to the Company, may
designate in writing from time to time.
TN WITNESS WHEREOF, the Company has executed this Option as of the date
first above written.
XXXXXXXXXXX-XXXXX, INC.
By: /s/ not legible
----------------------------------
----------------------, President
AGREED TO AND ACCEPTED:
XXXXX LAW FIRM, PC
/s/ Xxxx X. Xxxxx 5/1/02
-------------------------------------------------
XXXX X. XXXXX, PRESIDENT
00000 XXXXX XXXXX XXXXXXXXX
XXXXX 0000
XXXXXXX, XXXXXXX 00000-0000
Employer Identification Number: 00-0000000
Exhibit A
Date:
--------------------
XXXXXXXXXXX-XXXXX, INC.
0000 Xxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: , President
-----------------------
Re: Stock Option Exercise
---------------------
PRESIDENT:
I hereby exercise the foregoing option to the extent of shares,
------------
and I am tendering with this Notice full payment of the Exercise Price in the
manner provided in Paragraph 3 of the Option with respect to the Optioned Shares
as to which this Option is being exercised. I further represent and warrant to
the Company that I have been advised as to the tax consequences of my exercise
of the Option.
Very truly yours,
-----------------------------
