MASTER CONSULTING AGREEMENT
SMARTVIDEO™
TECHNOLOGIES, INC.
and
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SMARTVIDEOTM
TECHNOLOGIES, INC
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BETWEEN
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Telephone:
Facsimile:
Tax
ID#:
AND
SMARTVIDEOTM
TECHNOLOGIES, INC. (Hereinafter “COMPANY”)
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COMPANY
Contact:
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President
Telephone:
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Facsimile:
(770) 279-
-2-
COMPANY
and CONSULTANT hereby agree as follows:
| 1. |
Scope
of Work
|
CONSULTANT
shall perform CONSULTANT services (the “SERVICES”) for SMARTVIDEOTM
TECHNOLOGIES, INC., (“COMPANY”) as follows:
|
(a)
|
Consultant
shall provide the Company consulting services regarding matters including,
but not limited to, general advice and direction on business development,
strategic planning and engineering and
design;
|
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(b)
|
Consultant
shall assist the Company in obtaining written agreements with [*
* * * *].
Such agreements shall include, but not limited to, an agreement for
a
[*
* * * *];
|
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(c)
|
Consultant
shall provide advice relating to negotiations with [*
* * * *]
related to the acquisition of paying subscribers for SmartVideo
services;
|
|
(d)
|
Subject
to Consultant receiving reasonable prior notice, and Consultant’s
availability, Consultant shall attend significant carrier and/or
content
players meetings at the reasonable request of the
Company;
|
|
(e)
|
Consultant
shall sell the Company a complete, fully functioning SMS platform
- turn
key; and
|
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(f)
|
Consultant
shall provide such other and further services as mutually agreed
upon by
Consultant and Company.
|
CONSULTANT
shall provide the SERVICES specified above at a minimum of 25 hours per
week.
CONSULTANT
shall report directly to the President of the Company and his designee(s),
including but not limited to, the Senior Vice President of Business Development,
the Senior Vice President of Content and the Chief Engineer. Only these
individuals will have the authority to provide direction to the Consultant,
including travel and scope of work.
| 2. |
Compensation
|
COMPANY
shall pay CONSULTANT as follows:
[*
* * * *];
COMPANY
shall pay CONSULTANT $10,000 for the complete, fully functioning SMS platform,
-
turn key, described in Section 1(e) above.
COMPANY
will provide to CONSULTANT warrants to purchase common stock in COMPANY upon
obtaining certain goals and objectives and for the provision of certain
services, as further outlined below.
*Confidential
Treatment has been requested for the marked portion and filed separately
with
the Commission.
-3-
Category
1 Warrants:
|
1.
|
A
warrant to purchase 50,000 shares of the Company’s common stock for the
Services described in Section l(a) -(d) and (f) above as a Consultant
to
the Company. The strike price of this warrant will be the per share
price
equal to the closing sale price quoted on the OTC Bulletin Board
on the
date of the execution of this Agreement. Such warrant will be issued
on
the date of execution of this Agreement and will be exercisable for
a
period of 5 years from the date of
issuance.
|
|
2.
|
A
warrant to purchase 50,000 shares of the Company’s common stock upon
execution of the first written agreement between the Company and
a
[*
* * * *] to
put a [*
* * * *].
The strike price of this warrant will be the per share price equal
to the
closing sale price quoted on the OTC Bulletin Board or another nationally
recognized trading system on the date of the execution of this Agreement
or the date of the execution of the agreement with the [*
* * * *],
whichever is lower. Such warrant will be issued on the date of the
execution of this Agreement, and will be exercisable on the date
the
[*
* * * *] agreement
is executed. The warrant will remain exercisable for a period of
5 years
from the date of issuance.
|
|
3.
|
A
warrant to purchase 50,000 shares of the Company’s common stock upon
Official Commercial Launch of the [*
* * * *].
“Official Commercial Launch” is defined as a marketing supported, paid
subscription launch of the application described herein. The strike
price
of this warrant will be the per share price equal to the closing
sale
price quoted on the OTC Bulletin Board or another nationally recognized
trading system on the date of the execution of this Agreement or
the date
of the Official Commercial Launch, whichever is lower. Such warrant
will
be issued on the date of the execution of this Agreement, and will
be
exercisable upon the date of the Official Commercial Launch. The
warrant
will remain exercisable for a period of 5 years from the date of
issuance.
|
|
4.
|
A
warrant to purchase 50,000 shares of the Company’s common stock upon
reaching the threshold of 200,000 paid subscribers to the [*
* * * *]
as
referenced in (4) above. (The 200,000 paid subscribers can come from
any
one of a number of sources, such as [*
* * * *]
etc…and can be comprised of different “on deck” or “off deck”
applications). The strike prices of this warrant will be the per
share
price equal to the closing sales price quoted on the OTC Bulletin
Board or
another nationally recognized trading system on the date of execution
of
this Agreement or the date on which the 200,000 subscriber threshold
is
reached, whichever is lower. Such warrant will be issued on the date
of
the execution of this Agreement and will be exercisable upon reaching
the
200,000 subscriber threshold. The warrant will remain exercisable
for a
period of 5 years from the date of
issuance.
|
|
5.
|
A
warrant to purchase 50,000 shares of the Company’s common stock for the
Official Commercial Launch of the [*
* * * *].“Official
Commercial Launch” is defined as a marketing supported, paid
subscription launch of the application described herein. The strike
price
of this warrant will be the per share price equal to the closing
sale
price quoted on the OTC Bulletin Board or another nationally recognized
trading system on the date of execution of this Agreement or the
date of
the Official Commercial Launch, whichever is lower. Such warrant
will be
issued on the date of the execution of this Agreement and will be
exercisable upon the date of the Official Commercial Launch. The
warrant
will remain exercisable for a period of 5 years from the date of
issuance.
|
*Confidential
Treatment has been requested for the marked portion and filed separately
with
the Commission.
-4-
Category
2 Warrants:
|
6.
|
A
warrant to purchase no less than 50,000 shares of the Company’s common
stock for each additional Official Commercial Launch of the [*
* * * *] and
threshold generation of 100,000 paid subscribers thereto. “Official
Commercial Launch” is defined as a marketing supported, paid subscription
launch of the application described herein. The strike price of this
warrant will be the per share price equal to the closing sale price
quoted
on the OTC Bulletin Board or another nationally recognized trading
system
on the date of execution of this Agreement or the date of the Official
Commercial Launch, whichever is lower. Such warrant will be issued
on the
date of the execution of this Agreement and will be exercisable upon
reaching 100,000 paid subscribers. The warrant will remain exercisable
for
a period of 5 years from the date of
issuance.
|
|
7.
|
A
warrant to purchase no less than 25,000 shares of the Company’s common
stock for each Official Commercial Launch of a custom application
or the
positioning of the Company’s current linear and/or video on demand content
on a [*
* * * *] and
threshold generation of 50,000 paid subscribers thereto. For purposes
of
this objective, a [*
* * * *].
“Official Commercial Launch” is defined as a marketing supported, paid
subscription launch of the application being proposed. Furthermore,
for
purposes of this objective, Consultant must obtain the President’s
pre-approval of both
the [*
* * * *] and
proposed custom application prior to proposing that the Company enter
into
a written agreement with the [*
* * * *].
The strike price of this warrant will be the per share equal to the
closing sale price quoted on the OTC Bulletin Board or another nationally
recognized trading system on the date of execution of this Agreement
or
the date of the Official Commercial Launch, whichever is lower. Such
warrant will be issued on the date of the execution of this Agreement
and
will be exercisable upon reaching 50,000 subscribers. The warrant
will
remain exercisable for a period of 5 years from the date of
issuance.
|
|
8.
|
A
warrant to purchase no less than 50,000 shares of the Company’s common
stock for each Official Commercial Launch of a [*
* * * *]
and threshold generation of 50,000 paid subscribers thereto. “Official
Commercial Launch” is defined as a marketing supported, paid subscription
launch of the application described herein. The strike price of this
warrant will be the per share price equal to the closing sale price
quoted
on the OTC Bulletin Board or another nationally recognized trading
system
on the date of the execution of this Agreement or the date of the
Official
Commercial Launch, whichever is lower. Such warrant will be issued
on the
date of the execution of this Agreement and will be exercisable upon
reaching 50,000 paid subscribers. The warrant will remain exercisable
for
a period of 5 years from the date of
issuance.
|
*Confidential
Treatment has been requested for the marked portion and filed separately
with
the Commission.
-5-
|
9.
|
A
warrant to purchase no less than 25,000 shares of the Company’s common
stock for [*
* * * *]
referred to the Company by Consultant, directly or indirectly, and
executed, [*
* * * *] within
six (6) months from the commencement of the engagement. The strike
price
for this warrant will be the per share price equal to the closing
sale
price quoted on the OTC Bulletin Board or another nationally recognized
trading system on the date of the execution of this Agreement or
the date
that the [*
* * * *] stated
above is achieved, whichever is lower. Such warrant will be issued
on the
date of execution of this Agreement and will be exercisable upon
reaching
the [*
* * * *] specified
herein. The warrant will remain exercisable for a period of 5 years
from
the date of issuance.
|
Promptly
upon the execution of this Agreement, but in any event within sixty (60) days
from the date hereof, the Company shall file a registration statement for a
public resale of all of the securities evidenced by the warrants, and shall
use
all commercially reasonable efforts to cause the same to be declared effective
by the Securities and Exchange Commission as promptly as practicable after
such
filing, and shall keep such registration statement effective for a period of
seven (7) years from the date of issuance.
All
warrants issued pursuant to this Agreement shall have a cashless exercise
feature.
The
CONSULTANT understands and agrees that the President, in his sole discretion,
may award CONSULTANT Category 2 Warrants over and above the minimums specified
in Nos. 6-9 above.
Furthermore,
the CONSULTANT understands and agrees that there will initially be a total
approved pool of 250,000 Category 2 Warrants available to be awarded to the
CONSULTANT for meeting objective Nos. 6-9. If and when the initial pool of
250,000 warrants has been issued, then CONSULTANT understands and agrees that
the President will be required to seek Board approval for an additional pool
of
Category 2 Warrants, which approval may be withheld in the sole discretion
of
the Board.
CONSULTANT
understands and agrees that, as an independent contractor, it is solely
responsible for all taxes and other costs and expenses attributable to the
compensation payable to and services provided by it under this Agreement.
CONSULTANT understands and agrees that it is obligated to pay federal, state
and
local income tax, if any, due on any compensation paid to it pursuant to this
Agreement, and it represents that it has taken and will take any and all actions
required to comply with all applicable federal, state and local laws pertaining
to the same.
It
is
expressly understood that CONSULTANT is not eligible for, and will not receive,
any employment benefits such as insurance and retirement, any other compensation
such as bonuses or vacation, or any worker’s compensation or unemployment
insurance benefits from COMPANY.
*Confidential
Treatment has been requested for the marked portion and filed separately
with
the Commission.
-6-
| 3. |
Expenses
|
COMPANY
shall reimburse CONSULTANT for reasonable expenses incurred by CONSULTANT in
the
performance of its duties hereunder. Provided, however, that any such expense
exceeding five-hundred ($500) dollars, must be approved by COMPANY in writing
in
advance. Such reimbursements will be made in a prompt and reasonable
manner.
| 4. |
Representations
of CONSULTANT
|
CONSULTANT
represents that CONSULTANT has the requisite education, expertise, experience
and skill, to render the desired SERVICES and CONSULTANT shall perform the
SERVICES in a competent and efficient manner using commercially reasonable
efforts to accomplish the objectives of the SERVICES. CONSULTANT shall abide
by
all laws, rules and regulations that apply to the performance of the SERVICES,
including applicable requirements regarding equal employment opportunity and
the
provisions of Executive Order 11246 and related rules. CONSULTANT when on
COMPANY premises shall comply with COMPANY policies with respect to conduct
of
visitors.
Consultant
agrees to conduct all Services described in the Agreement in strict compliance
with any and all applicable federal, state, and local laws, regulations and
guidelines and any other relevant professional or other standards.
| 5. |
Confidentiality
and Restrictive
Covenants
|
a. Definitions
1. “Confidential
Information” means any and all data and information, whether disclosed orally,
in writing, by observation, or otherwise, relating to COMPANY’S business of
which CONSULTANT becomes aware as a consequence of, during, or through
CONSULTANT’S affiliation with COMPANY which is not generally known to COMPANY’S
competitors or the public and is subject to reasonable efforts to maintain
its
secrecy. Confidential Information covered by this Agreement does not have to
be
marked “Confidential” to be treated as such. Confidential Information may
include, without limitation, information relating to COMPANY’S: sales generation
techniques or methods; compilations; programs; methods; techniques; software;
source code; drawings; processes; research and development; legal affairs;
accounting; finances; actual or potential client information and lists; client
contact names and information; client preferences; billing rates; pricing
practices; business plans; margins; prices; operations; existing and future
services; contract expiration dates; forecasts and forecast assumptions and
volumes; and other financial, sales, marketing, services, and operations
information, whether written or otherwise, which is not common knowledge in
COMPANY’S industry or to the public. Confidential Information shall not include
(a) any data or information that has been voluntarily disclosed to the public
by
COMPANY (except where such public disclosure has been made by CONSULTANT or
another without authorization), (b) or that has been independently developed
and
disclosed by others, or that otherwise enters the public domain through lawful
means, (c) is received by the CONSULTANT from a third party without breach
of a
non-disclosure obligation of the third party, or (d) is disclosed pursuant
to
law, order of a court or governmental agency of competent jurisdiction. It
is
expressly stated that any information that CONSULTANT receives or discovers
during the course of the performance of CONSULTANT’s business (excluding
CONSULTANT’s work for Company hereunder), will not be deemed to be Confidential
Information.
-7-
2. “Trade
Secrets” means: any Confidential Information described above without regard to
form which: (i) is not commonly known by or available to the public; (ii)
derives economic value, actual or potential, from not being generally known
to,
and not being readily ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use; and (iii) is the subject
of
efforts that are reasonable under the circumstances to maintain its
secrecy.
b. Duty
of ▇▇▇-▇▇▇▇▇▇▇▇▇▇
▇. CONSULTANT
agrees that all Confidential Information and all physical embodiments thereof
provided to CONSULTANT by COMPANY, or any third party working with or for
COMPANY, are confidential to COMPANY, and will remain COMPANY’S sole and
exclusive property. CONSULTANT warrants and agrees that it has not and will
not
reproduce, use, distribute, disclose, publish, misappropriate or otherwise
disseminate any Confidential Information during CONSULTANTS association with
COMPANY and for a period of one (1) year following the termination of its
association with COMPANY, irrespective of the reason for such
termination.
2. CONSULTANT
further agrees that all Trade Secrets and all physical embodiments thereof
provided to CONSULTANT by COMPANY, or any third party working with or for
COMPANY, are confidential to COMPANY and will remain COMPANY’S sole and
exclusive property. CONSULTANT warrants and agrees that CONSULTANT has not
and
will not reproduce, use, distribute, disclose, publish, misappropriate or
otherwise disseminate any Trade Secrets. CONSULTANT’S requirement and duty
regarding Trade Secrets is not limited to the duration of its association with
COMPANY, but extends after the termination of CONSULTANT’S association with
COMPANY, irrespective of the reason for such termination, for so long as the
information at issue retains its Trade Secret status.
3. All
records, files, memoranda, materials, reports, price lists, customer lists,
drawings, designs, proposals, plans, sketches, documents, computer programs,
software, source code, disks, computer printouts and the like (together with
all
copies thereof) relating to the business of COMPANY, which CONSULTANT shall
use
or prepare or come in contact with in the course of, or as a result of its
association with COMPANY shall, as between the parties hereto, remain the sole
property of COMPANY. CONSULTANT shall use such materials solely for the benefit
of COMPANY. CONSULTANT hereby agrees that it immediately will return all such
materials, including copies, to COMPANY upon demand, or upon the termination
of
its association.
c. Work
Made for Hire.
CONSULTANT expressly acknowledges and agrees that all discoveries, inventions,
processes, designs, plans, writings, creations, programs, product improvements,
materials, Confidential Information, and Trade Secrets (“Work Made for Hire”)
whether of a technical nature or not, made or developed by CONSULTANT while
in
the course of CONSULTANT’S performance of Services to the COMPANY, which relate
directly to business of COMPANY, shall be the sole and exclusive property of
COMPANY. CONSULTANT expressly agrees to disclose and release all such Work
Made
for Hire and all information regarding the same to COMPANY concurrent with
the
discovery or development of the same. CONSULTANT shall assign all rights, title,
and interest in any such Work Made for Hire to COMPANY. CONSULTANT hereby
irrevocably assigns all such Work Made for Hire to COMPANY and agrees to execute
and deliver promptly to COMPANY such assignments and other written instruments,
and to do such other acts as may be required to patent, copyright or otherwise
protect such Work Made for Hire and to invest the entire right, title and
interest in such Work Made for Hire in COMPANY.
-8-
If
during
the term of this Agreement, CONSULTANT discloses any copyrightable works,
inventions, discoveries, or ideas to COMPANY which were conceived or written
prior to this Agreement or which are not based upon the SERVICES performed
by
CONSULTANT for COMPANY under this Agreement, COMPANY shall have no liability
to
CONSULTANT because of its use of such works, inventions, discoveries or ideas,
except liability for infringement of any valid copyright or patent now or
hereafter issued thereon.
d. Non-Solicitation
of Clients.
CONSULTANT covenants and agrees that, during his association with COMPANY under
this Agreement, and for a period of two (2) years following the termination
of
this Agreement, CONSULTANT will not directly or indirectly, solicit, contact,
call upon, communicate with or attempt to communicate with any client of COMPANY
for the purpose of selling or providing a product substantially similar in
nature with respect to purpose and functionality that CONSULTANT developed
for
the particular client of the COMPANY; provided, however, that the restrictions
set forth in this paragraph shall apply only to clients with whom CONSULTANT
had
regular business contact on behalf of COMPANY within the year immediately
preceding the termination of his association with COMPANY.
e. Non-Solicitation
of COMPANY Employees/Contractors.
CONSULTANT agrees that he will not, during his association with COMPANY under
this Agreement and for a period of one (1) year following the termination of
this Agreement, for any reason, directly or indirectly, solicit, attempt to
solicit, induce, or encourage any employee of COMPANY or any contractor who
has
worked for COMPANY in the year prior to the termination of this Agreement,
to
work for CONSULTANT; provided, however, that the foregoing shall not prohibit
CONSULTANT from hiring any employee of COMPANY that was contacted through
generally accepted employment recruiting procedures, not otherwise specifically
directed at COMPANY’s employees (i.e. “▇▇▇▇▇▇▇.▇▇▇”).
f. Contracts
or Other
Agreement with Former Employer or Business.
The
CONSULTANT hereby represents and warrants that it is not subject to any
employment agreement or similar document with a former employer or any business
with which the CONSULTANT has been associated, which prohibits the CONSULTANT
during a period of time which extends through the date of execution of this
Agreement from any of the following: (i) competing with, or in any way
participating in a business which competes with the CONSULTANT’S former employer
or business; (ii) utilizing any knowledge or information which may be necessary
to assist the COMPANY hereunder, (iii) soliciting personnel of such former
employer or business to leave such former employer’s employment or to leave such
business; or (iv) soliciting customers of such former employer or business
on
behalf of another business. The CONSULTANT hereby further represents and
warrants that he has not executed any agreement with any other party which,
on
its face, purports to require the CONSULTANT to assign Work Made for Hire or
other inventions created, conceived or first reduced to practice by the
CONSULTANT during a period of time which extends through the date of execution
of this Agreement.
-9-
g. COMPANY’S
Rights for Breach.
CONSULTANT acknowledges and agrees that COMPANY would suffer great and
irreparable harm if CONSULTANT should breach or violate any of the terms or
provisions of the warranties, covenants and agreements set forth in this
Paragraph 5 (and subparagraphs (a)-(g) thereof) of this Agreement. In the event
that CONSULTANT should materially breach or violate any of such provisions,
CONSULTANT agrees and consents that COMPANY shall be entitled to seek a
temporary restraining order and a permanent injunction to prevent a breach
or
threatened breach of any of the warranties, covenants or agreements contained
in
this Agreement, as well as recovery of its costs and reasonable attorneys’ fees
expended in enforcing this Agreement. Nothing in this Agreement, however, shall
be construed to prohibit COMPANY from also pursuing any and all other damages
and remedies allowed by law, CONSULTANT having agreed that all remedies shall
be
cumulative.
h. Consultant’s
Rights for Breach. In the event that COMPANY fails to satisfy its obligations
with respect to the registration of the shares represented by the warrant,
as
set forth in Section 2 above, the obligations of CONSULTANT set forth in Section
5 (b), (d) and (e) above shall be reduced to a period of six (6) months
following the termination of this Agreement.
| 6. |
Conflicts
of Interest
|
COMPANY
acknowledges that CONSULTANT’S primary business purpose is software development,
specifically in connection with mobile applications, and that in connection
with
such business, CONSULTANT may provide services similar in nature to the Services
provided hereunder to other entities. Subject to the limitations set forth
in
Section 5, and all subparts thereof, nothing herein shall limit or restrict
CONSULTANT’S right or ability to conduct its normal business operations, as
currently conducted or as hereinafter may be expanded. Provided, however, that
CONSULTANT represents that it has advised COMPANY in writing prior to the date
of signing this Agreement of any relationship with any third parties, including
competitors of COMPANY, which would present a conflict of interest with the
SERVICES or which would prevent CONSULTANT from carrying out the terms of this
Agreement.
| 7. |
Independent
Contractor
|
CONSULTANT
shall be an Independent Contractor, and CONSULTANT and any employees of
CONSULTANT performing SERVICES shall not
be
employees of COMPANY. The means, methods and manner in which SERVICES are
rendered by CONSULTANT shall be within CONSULTANT’s sole control and discretion.
COMPANY shall not be responsible for CONSULTANT’s acts or the acts of its
employees while performing the services whether on COMPANY premises or
elsewhere, and CONSULTANT and its employees shall not
have
authority to speak for, represent, obligate, or legally bind COMPANY in any
way.
-10-
| 8. |
Retention
of Reports
|
Unless
otherwise agreed in writing, CONSULTANT shall retain copies of any written
reports prepared for COMPANY for a period of five (5) years, after which the
reports may be destroyed. CONSULTANT shall notify COMPANY prior to destruction
of any reports. If COMPANY requests additional copies of any such reports during
the retention period, an additional charge will apply for the preparation and
printing of such reports.
| 9. |
Term
and Termination
|
The
term
of this Agreement will be for two (2) years, commencing upon the execution
of
this Agreement (the “Term”), unless otherwise extended by the mutual agreement
of the parties, upon such terms as may be mutually agreed upon, or earlier
terminated as set forth below.
In
the
event that either party commits a material breach of this Agreement, the
non-breaching party shall have the right to terminate the Agreement upon thirty
(30) days written notice (during which period the breaching party may cure
such
breach). In the even that CONSULTANT is the breaching party, COMPANY may
terminate the Agreement without further financial obligation to CONSULTANT,
other than (i) to pay for SERVICES actually performed by CONSULTANT as of the
date of termination; (ii) to reimburse CONSULTANT for any reasonable expenses
directly related to the performance of the SERVICES contemplated by this
Agreement which were incurred by CONSULTANT as of the date of termination and
in
accordance with the provisions of this Agreement governing such expenses; and
(iii) to maintain the registration statement with respect to any warrant that
has been validly issued to and satisfied by CONSULTANT hereunder, in accordance
with the terms specified herein.
COMPANY
may terminate this Agreement upon thirty (30) days prior written notice to
CONSULTANT. Notwithstanding anything to the contrary contained herein, the
termination of this Agreement by the COMPANY or the CONSULTANT shall not effect
or limit any rights CONSULTANT may have with respect to any warrant issued
hereunder, for which the underlying financial milestones related to such warrant
were satisfied prior to the date of termination.
| 10. |
Right
of Review
|
During
the term of this Agreement, COMPANY and/or its representatives at reasonable
times, and upon reasonable notice to the CONSULTANT, shall have the right to
review all contracts, correspondence, books, accounts, files, and records of
CONSULTANT which pertain in any manner to performance of this Agreement and
services rendered hereunder and the charges therefore.
-11-
| 11. |
Indemnification
|
CONSULTANT
shall defend, indemnify, and hold harmless COMPANY from and against all
liabilities, claims, costs, fines, penalties and damages of any type (including
attorneys’ fees) arising out of or in any way related to this Agreement,
including, but not limited to, any such claims arising out of CONSULTANTS
alleged breach of the provisions of Paragraph 5 (and subparagraphs (a) - (g)
thereof) or CONSULTANT’S provision of services to COMPANY under this Agreement.
This indemnification expressly includes, but is not limited to, any fines or
penalties imposed by the Department of Labor, the Internal Revenue Service,
or
any other local, state or federal governmental agency.
COMPANY
shall, to the extent legally permissible, indemnify the CONSULTANT against
all
liabilities and expenses, including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and counsel fees, reasonably incurred
by him in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which he may be involved or
with
which he may be threatened, while in office or thereafter, by reason of his
being or having been a member of the Board of Advisors of the Company, except
with respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the COMPANY.
| 12. |
Assignment
|
Neither
party shall be entitled to assign this Agreement or any of its rights, duties
or
obligations hereunder, without the non-assigning party’s prior written consent.
Notwithstanding the foregoing, solely in connection with a sale of all or
substantially all of the COMPANY’s assets or equity securities, or in connection
with a consolidation or merger of the COMPANY, the COMPANY shall have the right
to assign this Agreement in its sole discretion, upon prior written notice
to
the CONSULTANT.
| 13. |
Entire
Agreement
|
This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof, and supersedes all prior agreements and understandings between
the parties related to the subject matter.
| 14. |
No
Alteration, Change or Amendment Without Signed
Writing
|
This
Agreement may not be altered, changed or amended except by a writing signed
by
each of the parties hereto.
| 15. |
Waiver
|
The
waiver by either party of a breach of any provision of this Agreement by the
breaching party shall not operate or be construed as a waiver of any subsequent
similar or other breach by the non-breaching party.
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| 16. |
Specific
Performance/Injunctive
Relief
|
In
the
event of the actual or threatened breach by either party of any of the terms
or
paragraphs of this Agreement, including, without limitation, the obligation
of
the COMPANY to register the shares represented by the warrants, the
non-breaching party shall have the right to seek specific performance and
injunctive relief. The rights granted by this paragraph are in addition to
all
other remedies and rights available at law or in equity.
| 17. |
Governing
Law
|
This
Agreement shall be construed according to the laws of Georgia.
| 18. |
Jurisdiction
and Venue
|
Any
proceedings or actions commenced hereunder shall be brought in Atlanta, Georgia.
| 19. |
Execution
in Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which, when
executed, shall be deemed to be an original and all of which together shall
constitute one and the same document.
| 20. |
Acknowledgement
of Opportunity to Review and Rules of
Construction
|
The
parties acknowledge that they have had an opportunity to review each and every
provision contained in this Agreement and to submit the same to legal counsel
for review and comment. Based on the foregoing, the parties agree that any
rule
of construction that a contract be construed against the drafter will not be
applied in the interpretation and construction of this Agreement.
| 21. |
Severability
|
The
invalidity or unenforceability of any provisions of this Agreement, whether
in
whole or in part, shall not in any way affect the validity and/or enforceability
of any other provision of this Agreement. Any invalid or unenforceable provision
shall be deemed severable to the extent of any such invalidity or
unenforceability.
|
22.
|
Third
Party Beneficiaries:
There are no third party beneficiaries of this Agreement and no party
other than COMPANY and CONSULTANT shall have any legal rights
hereunder.
|
Limitation
of Liability.
IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES
OF
ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY,
GUARANTEE, PRODUCT LIABILITY OR STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY
OF
SUCH DAMAGES IN NO EVENT WILL EITHER PARTY BE LIABLETO THE OTHER PARTY FOR
ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY SUCH
PARTY.
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|
24.
|
Notice.
All notices, requests, demands and other communications required
hereunder
shall be in writing and shall be deemed to have been duly given if
delivered or if mailed, by United States certified or registered
mail,
prepaid to the party to which the same is directed at the following
addresses (or at such other addresses as shall be given in writing
by the
parties to one another).
|
| If to the Company: |
SmartVideo
Technologies, Inc.
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
President
w/
an
additional copy to the attention of the General Counsel
| If to the Consultant: |
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized representatives.
|
SMARTVIDEO™ TECHNOLOGIES,
INC.
(COMPANY)
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇
Signature:
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President and Interim CEO
Date:
July 24, 2006
▇▇▇▇▇
▇▇▇▇▇▇▇▇
(CONSULTANT)
By:
/s/▇▇▇▇▇
▇▇▇▇▇▇▇▇
Signature:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
_________________
Date:
July 24, 2006
|
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