BUSINESS CONSULTANT AND MANAGEMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective as of July 20, 2000,
by and between ORYX TECHNOLOGIES, INC. a California corporation ("Consultant"),
and S2 TECHNOLOGIES, INC., a California corporation (the "Company").
R E C I T A L S :
A. The Company is presently in the process of developing its
operations;
B. It is the desire of the Company to engage the services of Consultant
in connection with certain strategic advisory services;
C. It is the desire of Consultant to consult with the Board of
Directors and the officers of the Company and to undertake for the Company
certain strategic consulting activities with respect to the direction of the
Company's operations and financial affairs.
NOW, THEREFORE, for good and valuable consideration and intending to be
legally bound, the parties hereto agree as follows:
1. Term of Agreement. The respective duties and obligations of the
parties hereto shall commence effective on the date hereof and shall continue
for a period of three (3) year thereafter. At least thirty (30) days prior to
the expiration of the term of this Agreement (or of any renewal term) the
parties shall negotiate in good faith to extend the term of this engagement, if,
in the Company's sole discretion, further consulting services are needed.
2. Consultation. Consultant shall make those employees and agents
identified on Schedule 1 hereto available to consult with the Board of
Directors, the officers of the Company, and other employees of the Company, at
such times as described in Section 9 of this Agreement, concerning certain
strategic business matters, including, but not limited to: (i) executive
recruiting; (ii) business development and strategic marketing; (iii)
administrative functions, such as advising as to and performing the following
duties and/or services: duties generally performed by a chief financial officer,
human resources administration and management and administration of accounting
and information systems; (iv) operational functions, such as materials
management, distribution and manufacturing; and (v) debt and/or equity financing
strategies.
3. Consultant an Independent Contractor. The parties agree that in
performing Consultant's duties and obligations under this Agreement, Consultant
and all employees and other agents of Consultant shall be deemed to be
independent contractors and not employees of the Company. The Company and
Consultant agree that, in all cases, Consultant and its employees and other
agents are, with respect to the Company, free to choose the manner, means and
timing of their performance, and are not employees of the Company within the
meaning of Section 3401(c) of the Internal Revenue Code of 1986, as amended, and
Treasury Regulations Section 31.3401(c)-1. The Company shall not withhold any
taxes or other payroll deductions from any compensation payable to Consultant
under this Agreement. Each party shall indemnify and hold harmless the other
party from any losses, penalties, taxes, interest, attorneys' fees, costs
1.
and other expenses resulting from any claims for the amount of any payroll and
income withholding taxes with respect to compensation paid under this Agreement.
Consultant warrants that (i) amounts paid by it to its employees in connection
with services rendered under this Agreement will have appropriate payroll and
income taxes withheld from them and (ii) it will pay all taxes payable with
respect to the compensation received by it hereunder.
4. Employment of Certified Public Accountants. It is understood and
agreed by the parties hereto that the services to be performed by Consultant do
not include the auditing of the books of the Company, the preparing of any
financial statements, the preparing of any tax returns or other documents
required to be prepared by any governmental body having jurisdiction to tax, or
any other acts or services normally performed by certified public accountants.
Consultant may, at the written request of the Company, engage, hire, retain, and
employ, in the name and for the account of the Company, one or more, or a firm
of, certified public accountants to perform for the Company the services denoted
above in this paragraph.
5. Employment of Assistants. If it is reasonably necessary for
Consultant to have the aid of assistants or the services of other persons,
companies, or firms in order to properly perform the duties and obligations
required of Consultant under this Agreement, Consultant may, from time to time
and with the prior written consent of the Company, employ, engage, or retain the
same. The cost to Consultant for said services shall be chargeable to the
Company, and the Company shall reimburse and pay over to Consultant said costs
on demand.
6. Limited Liability. With regard to the services to be performed by
Consultant pursuant to the terms of this agreement, Consultant shall not be
liable to the Company, or to anyone who may claim any right due to Consultant's
relationship with the Company, for any acts or omissions in the performance of
said services on the part of Consultant or on the part of the agents or
employees of Consultant; except when said acts or omissions of Consultant are
due to willful misconduct and under circumstances in which indemnity is
expressly prohibited by applicable law. The Company shall indemnify Consultant
and hold it free and harmless from any and all obligations, liabilities, costs,
claims, actions, judgments, attorneys' fees, and attachments arising from or
growing out of any matter or transaction occurring prior to the date of this
Agreement and arising from or growing out of the services rendered by Consultant
to the Company pursuant to the terms of this Agreement or in any way connected
with the rendering of said services, except when the same shall arise due to the
willful misconduct of Consultant, and under circumstances in which indemnity is
expressly prohibited by applicable law.
7. Compensation. Upon execution of this Agreement, and subject to
compliance with applicable federal and state securities laws, the Company shall
issue Consultant a warrant in the form attached hereto as Exhibit A (the
"Warrant"), to purchase seven hundred thousand (700,000) shares of the Company's
Common Stock at a purchase price of $.001 per share (the "Warrant Shares"). The
Warrant shall vest over a three-year term (the "Vesting Period") (25% of the
Warrant Shares shall vest immediately on the date hereof, with 75% of the
Warrant Shares vesting monthly after the date hereof during the Vesting Period)
and shall be exercisable for a term of five (5) years from the date hereof.
Except for termination of this Agreement by the Company for "good cause," as
defined in Section 8 of this Agreement, the term and vesting of the Warrant
shall not be affected by any termination of this Agreement.
2.
8. Termination; Suspension of Performance. Consultant may suspend its
performance under this Agreement at any time if the Company has not provided
compensation in accordance with the terms of Paragraph 7 hereof. Either party
may terminate this Agreement following a material breach by the other party and
fifteen (15) days written notice by either party to the other of such breach and
the nature thereof, if the breach remains uncured after the expiration of said
15-day notice period after breach. Upon thirty (30) days written notice by the
Company to Consultant, the Company may terminate this Agreement for "cause,"
which, for purposes of this Agreement, shall be defined as, with respect to each
of Consultant's Agents, such Agent's gross dishonesty or fraud in the
performance of the respective services hereunder, gross negligence in the
performance of the respective duties hereunder and intentional engagement in
acts seriously detrimental to the Company's operations.
9. Minimum Amount of Service. Consultant shall devote up to 150
workdays over the three-year term of this Agreement to the affairs of the
Company, principally through the services of Xxx Xxxxxxx and Xxxxxx Xxxxxxxx.
Anything contained in this Agreement to the contrary notwithstanding, Consultant
shall devote only so much time, in excess of four (4) work days per month, to
the affairs of the Company as it, in its sole judgment, deems necessary; and
Consultant may represent, perform services for, and be employed by, any
additional clients, persons, or companies as Consultant, in its sole discretion,
sees fit.
10. Expenses. In addition to the compensation specified in Section 7,
the Company will pay reasonable out-of-pocket expenses incurred by Consultant in
the furtherance of or in connection with the performance of the consulting
services hereunder; provided Consultant provides reasonable backup documentation
therefor.
11. Confidential Information.
(a) For purposes of this Section 11, the term "Confidential
Information" shall mean all information developed by or disclosed or made
available to Consultant, its employees or representatives, in connection with
the performance by Consultant of the consulting services hereunder which the
Company protects against unrestricted disclosure to others and which: (i) if in
written or other tangible form, is clearly designated as "Confidential"; and
(ii) if disclosed orally, is reduced to a writing designating such information
as "Confidential" which is delivered to Consultant promptly following such oral
disclosure. By way of illustration but not limitation "Confidential Information"
includes (a) trade secrets, inventions, mask works, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions"); and (b) information regarding plans
for research, development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and (c) information regarding the skills and
compensation of other employees of Company.
(b) Consultant agrees, with respect to any Confidential Information
developed by or disclosed to it hereunder: (i) to use such Confidential
Information only for the purposes of performing the consulting services
hereunder; (ii) to use the same methods and degree of care to prevent disclosure
of such Confidential Information as it uses to prevent disclosure of its own
3.
proprietary and confidential information; (iii) to disclose the Confidential
Information to its employees only on a need-to-know basis and not to disclose
any Confidential Information to any third party without the prior written
consent of the Company; and (iv) to return any Confidential Information in any
tangible form to the Company at the request of the Company and to retain no
copies or reproductions thereof.
(c) Consultant shall not be obligated to treat information as
Confidential Information if such information: (i) was rightfully in Consultant's
possession or was rightfully known to Consultant prior to receipt from the
Company; (ii) is or becomes publicly known without the fault of Consultant;
(iii) is or becomes rightfully available to Consultant without confidential
restriction from a source not bound by a confidentiality obligation to the
Company; (iv) is independently developed by Consultant without use of the
Confidential Information disclosed hereunder; provided, however, that the burden
of proof of such independent development shall be upon Consultant; or (v) is
required to be disclosed pursuant to court or government action; provided,
however, that Consultant gives the Company reasonable prior notice of disclosure
pursuant to such court or government action and, upon the request of the
Company, the Consultant shall cooperate in contesting such disclosure.
12. Miscellaneous.
(a) Relationship of Parties. Consultant shall at all times during the
performance of its services hereunder be an independent contractor, maintaining
sole and exclusive control over its business and operations. At no time will
either party hold itself out to be the agent, employee, lessee, sublessee,
partner, or joint venturer of the other party. Neither party hereto shall have
the express or implied right or authority to assume or create any obligation on
behalf of or in the name of the other party, or to bind the other party in
regard to any contract, agreement or undertaking with any third party.
(b) Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between the parties relating
to the subject matter hereof and supersedes all prior, written or oral
negotiations, representations or agreements. No modification of this Agreement
shall be binding on either party unless it is in writing and signed by both
parties.
(c) Severability. The provisions of this Agreement are severable, and
if one or more provisions are judicially determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions or portions of this
Agreement shall nevertheless be binding on and enforceable by and between the
parties hereto.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto; provided,
however, that Consultant shall not transfer or assign this Agreement without
prior written consent of the Company.
(e) Governing Law. The rights and obligations of the parties to this
Agreement shall be governed by and construed in accordance with the laws of the
State of California.
4.
(f) Headings. Section headings are for convenience of reference only
and shall not be considered in the interpretation of this Agreement.
(g) Unavoidable Delays. Either party shall be excused for any delays or
defaults in the performance of this Agreement (except the payment of amounts due
and payable hereunder) unavoidably caused by the act of the other, the act of
any agent of the other, the act of any governmental authority, acts of God, the
elements, war, litigation, strikes, walkouts, or any other cause beyond its
reasonable control. Each party shall use all reasonable diligence to avoid any
such delay or default and to resume performance under this Agreement as soon as
practicable after such delay or default.
(h) Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery or on the day sent by facsimile transmission if a true and
correct copy is sent the same day by first class mail, postage prepaid, or by
dispatch by an internationally recognized express courier service, and in each
case addressed as follows:
To Consultant: ORYX TECHNOLOGIES, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
To the Company: S2 TECHNOLOGIES, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
5.
IN WITNESS WHEREOF, the parties have executed this Agreement at
Fremont, California on the day and year first above mentioned.
S2 TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Its: CEO
--------------------------------------
CONSULTANT:
ORYX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Its: Partner
--------------------------------------
1.
SCHEDULE 1
Xxxx Xxxxxxxx
Xxx Xxxxxxx
1.
EXHIBIT A
Form of Warrant
2.
