EXHIBIT 10.3
This Agreement (the "Agreement"), dated as of November 1, 2002 by and
between Recom Management Systems, Inc., a Delaware corporation ("RECOM"), and
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WHEREAS, RECOM and the Consultant desire to enter into an agreement
whereby the Consultant will provide certain: (i) management; and (ii)
intellectual property consulting services for RECOM on the terms and
conditions hereinafter set forth; and
WHEREAS, the Consultant is willing to provide such services for RECOM.
NOW, THEREFORE, the parties hereto agree as follows:
1. Engagement.
a. Consultant hereby agrees to provide such services for RECOM as
may be reasonably requested by the Board of Directors of RECOM as relates to
management and intellectual property strategy.
b. Consultant hereby agrees to serve on RECOM's Board of Directors
for the Term of this Agreement.
2. Extent of Services. Consultant agrees to perform such services to the
best of his ability and in a diligent and conscientious manner. Consultant
agrees to devote such time as is reasonably required to fulfill his duties
hereunder. Under no circumstances shall Consultant be called upon, pursuant
to this Agreement, to perform legal services for RECOM. RECOM acknowledges
that Consultant has provided legal services appertaining and relating to
certain patent rights that RECOM owns and intends to develop, and RECOM waives
any conflict of interest involving the rendition of such services as it may
relate to this Agreement.
3. Term. The engagement of the Consultant hereunder by RECOM shall
commence as of the date hereof and shall continue through November 1, 2004,
unless earlier terminated pursuant to Section 5 hereof.
4. Compensation. As compensation for the services contemplated herein
and for performance rendered by the Consultant of his duties and obligations
hereunder, RECOM shall pay to the Consultant or to the designee of
Consultant's choosing: (i) 75,000 shares of RECOM's common stock which shall
vest pro rata on a quarterly basis beginning on the date hereof and concluding
on November 1, 2004; and (ii) Warrants to purchase an additional 150,000
shares of RECOM's common stock at an exercise price of $5.00 per share in
RECOM's standard form of warrant to be prepared and delivered by RECOM within
its discretion (the "Consulting Fee"). The entire Consulting Fee shall be
deemed non-refundable and fully paid as of the date of execution hereof and
there shall be no condition precedent to its full vesting in the manner set
forth above. RECOM's sole obligation shall be to pay to the Consultant the
amounts described in this Section 4 of this Agreement, and the Consultant is
not and shall not be deemed an employee of RECOM for any purpose. Indeed, the
parties hereto understand and agree that Consultant is able to provide the
consulting services herein because he is on "loan out" to the Company from
other entities with which Consultant is involved, and Consultant retains the
full right to designate any person to receive the consideration hereunder
within the sole discretion of Consultant.
5. Termination. This Agreement shall be terminated as follows: (i) on
such date as is mutually agreed by the parties in writing; or (ii) upon the
expiration of the Term as set forth in Section 3; or (iii) by RECOM upon
giving thirty (30) days prior written notice provided, however, that under no
circumstances shall such termination cause the Compensation to be returnable
in any way, shape or form; or (iv) by the death or disability of Consultant.
6. Covenants. Consultant agrees to (a) faithfully and diligently do and
perform the acts and duties required in connection with its engagement
hereunder, and (b) not engage in any activity which is or likely is contrary
to the welfare, interest or benefit of the business now or hereafter conducted
by RECOM.
7. Binding Effect. This Agreement will inure to the benefit of and shall
be binding upon the parties hereto and their respective successors or assigns
(whether resulting from any reorganization, consolidation or merger of either
of the parties or any assignment to a business to which all or substantially
all of the assets of either party are sold).
8. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by
a well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested,
prepaid and addressed to the parties or their successors at the following
addresses, or at such other addresses as the parties may later designate in
writing:
If to the Company:
Recom Managed Systems, Inc.
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Attn: Board of Directors
If to Consultant:
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at ▇▇. ▇▇▇▇▇▇'▇ residential address set forth opposite his
signature page below
9. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
10. Arbitration. Any dispute hereunder shall be settled by binding
arbitration before the American Arbitration Association, with any judgment
thereon to be final, binding and not subject to appeal or collateral attack.
11. Integration Clause. This Agreement, along with the attachments
hereto, constitutes the entire Agreement between the parties pertaining to the
subject matter contained herein and supersedes all prior and contemporaneous
agreements, representations and understandings -- whether oral, written or
both -- of the parties with respect to the subject matter hereof. In the case
of this particular Agreement, there have been no prior or contemporaneous
agreements, representations and understandings between or among the parties
hereto, and the only agreement that formed the topic of negotiations and
discussions is contained herein. The parties agree that this Agreement may not
be modified and that no attempted modification by the parties shall be binding
upon either party hereto unless contained in a written instrument executed by
the party to be charged. Accordingly, this Agreement may not be so modified
by a writing that is unsigned by the party to be charged and this Agreement
may not be modified by any oral amendment, oral agreement or other oral
modification. In fact, any oral amendment or written modification that
remains unsigned by the party to be charged is invalid in that the parties
intend that there is no consideration for any future promises that are not
contained in writing and the parties hereto specifically agree that this be
the case.
12. Governing Law. This Agreement will be governed by the laws of the
State of California (with the exception of its conflict of laws provisions).
13. Acknowledgment. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
RECOM MANAGED SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
General Partner for ▇▇▇▇▇▇ Enterprises
Residential Address and Phone Number:
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