Exhibit 10.4
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GSV, INC.
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January 7, 2008
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c/o GSV, Inc.
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RE: Consulting Agreement
Dear Sagi:
This will confirm the arrangements, terms and conditions (the "Agreement")
under which you have been retained to serve as a consultant and advisor to GSV,
Inc., on a nonexclusive basis. This Agreement will be in effect from the date
first above written and shall continue until terminated as provided below (the
"Term").
During the Term, you will be engaged as a consultant by and advisor to GSV.
All services hereunder will be performed diligently and competently as is
appropriate to fulfill the objectives of the assignments as provided to you from
time to time by the Board of Directors (the "Board"). You will have the right to
establish the hours for your work, provided that you will make yourself
available from time to time as reasonably required, principally by telephone
from outside the United States, with occasional visits to the United States as
necessary. You will furnish the necessary tools, equipment, materials and the
like to fulfill your assignments under this Agreement.
You are an independent contractor, and not an employee of GSV. By virtue of
the relationship described in this Agreement, your relationship to GSV during
the Term shall only be that of an independent contractor and you shall perform
all services under this Agreement as an independent contractor. You shall not
have any authority to act for, represent or bind GSV or any affiliate thereof in
any manner, except as may be expressly agreed to by the Board from time to time.
In consideration of the consulting services that you will provide under
this agreement, GSV will pay you a monthly fee of eight thousand dollars
($8,000). You will also be entitled to reimbursement of direct documented
expenses incurred by you in the course of your duties under this Agreement,
provided such expenses are approved in accordance with GSV's standard practices.
It is understood and agreed that your engagement as an independent contractor
will not constitute you as an employee of GSV for any purpose whatsoever, and
that you will not be entitled to the benefit of any employee plans, programs or
benefits mandated by applicable law, including insurance benefits, of GSV.
GSV will provide you with a Form 1099 pertaining to compensation paid in
respect of any consulting services provided to GSV from within the United
States. The Company will not (i) withhold Social Security or Medicare taxes from
payments to you or make Social Security or Medicare tax payments on your behalf,
(ii) make state or federal unemployment compensation contributions on your
behalf, or (iii) withhold state or federal income tax from amounts paid to you
hereunder. You shall pay all taxes incurred by it while performing the Services,
including all applicable income taxes.
You represent and warrant to GSV that the execution and delivery of this
Agreement and the transactions contemplated hereby will not violate or cause the
violation of any oral or written agreement to which you are a party or by which
you are bound. In addition, you agree to the restrictive covenants set forth on
Appendix A to this Agreement.
Either you or GSV can terminate this Agreement at any time for any reason
upon prior written notice, provided that the restrictive covenants set forth on
Appendix A, and this paragraph, shall survive such termination. Upon termination
of this Agreement you shall surrender any and all books, lists, files, maps,
computer records (or copies, transcriptions or excerpts of the same) related in
any way to the business of GSV.
During the Term of this Agreement, you shall be free to engage in outside
employment. Neither this Agreement nor any rights or obligations may be assigned
by you without the prior written consent of GSV. No modification or waiver of
this Agreement is valid unless it is in writing and signed by you and GSV. This
Agreement is an entire and complete understanding between you and GSV with
regard to the covered subject matter and supersedes all prior discussions
arrangements between the parties relating thereto. This Agreement will be
governed and construed under the laws of the State of New York, without
reference to its conflict of laws provisions.
To indicate your acceptance of our offer, please countersign this letter
where indicated below and return a copy of the same to me.
GSV, Inc.
By:
Gilad Gat
President
Agreed and Accepted:
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Appendix A
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Restrictive Covenants
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1. General.
The Consultant acknowledges and agrees that his services hereunder are of a
special, unique, extraordinary and intellectual character, and his position
with GSV places him in a position of confidence and trust with the clients
and employees of GSV. The Consultant consequently agrees that the
restrictive covenants contained herein are reasonable and necessary in
order to protect and maintain the trade secrets, business, assets and
goodwill of the Company.
2. Confidentiality.
Consultant agrees that Consultant will not, at any time, (i) disclose any
trade secret or confidential information related to GSV or any of its
Affiliates (including but not limited to cost or pricing information,
customer lists, commission plans, supply information, internal business
procedures, market studies, information concerning pending or contemplated
acquisitions or expansion plans of GSV or its Affiliates, the existence of
negotiations concerning the same, and similar non-public information
relating to GSV's or its Affiliates' internal operations, business, plans,
policies, practices, or any other information specifically designated by
GSV as confidential) ("Confidential Information"), to any Person, or (ii)
use or permit the use of any Confidential Information in any way to compete
(directly or indirectly) with GSV or its Affiliates or in any other manner
adverse to GSV or its Affiliates; provided, however, that the Confidential
Information referenced in the preceding provision shall not include any
information or knowledge that: (i) is already generally publicly known or
that subsequently becomes generally publicly known other than as a direct
or indirect result of the breach of this Agreement by Consultant, (ii) is
generally disclosed as required by a governmental agency or applicable law,
or (iii) is disclosed to Consultant by a third party who has the right to
disclose such information and has no confidentiality obligation to GSV. The
Confidential Information relates to the conduct of GSV's and/or its
Affiliates' business, is of independent economic value to GSV because it is
not generally known, and is the subject of efforts by GSV to maintain its
secrecy. Consultant acknowledges that the right to maintain the secrecy of
the Confidential Information constitutes a proprietary right that GSV is
entitled to protect and that the disclosure or improper use of the
Confidential Information by Consultant will cause irreparable harm to GSV.
3. Proprietary Rights.
(a) Company Records; Return to Company. All books, documents, lists, and
records pertaining to GSV's and/or its Affiliates' business
(collectively, the "Records"), whether the Records are written, typed,
printed, contained on microfilm, contained on computer disc, contained
in tape, or are set forth in some other medium of expression, are the
sole and exclusive property of GSV. Upon the termination of
Consultant's relationship with GSV, Consultant shall promptly return
to GSV all Records and copies thereof that are in Consultant's
possession or that Consultant has removed from GSV's premises.
(b) Ownership of Proprietary Rights; Work for Hire. Consultant
acknowledges and agrees that all work performed by or on behalf of
Consultant under this Agreement shall constitute a "work made for
hire" for purposes of the U.S. Copyright Act of 1976, as amended. In
addition, Consultant hereby assign to GSV all proprietary rights
including, but not limited to, all patents, copyrights, trade secrets,
and trademarks Consultant might otherwise have, by operation of law or
otherwise, in all inventions, discoveries, works, ideas, information,
knowledge, and data related to Consultant's access to Confidential
Information.
(c) Supporting Documents. Consultant further agrees to execute and deliver
any additional documents, instruments, applications, oaths, or other
writings necessary or desirable to further evidence the assignment
described in Section 3(b) ("Supporting Documents"). If Consultant
fails or refuses to execute or deliver any Supporting Documents,
Consultant hereby agree, to the fullest extent permitted by law, that
the President of GSV shall be appointed, and the same is hereby
irrevocably appointed, Consultant's attorney-in-fact with full
authority to execute Supporting Documents and perform all other acts
necessary to further evidence such assignment. GSV shall be
responsible for drafting and delivering to Consultant for execution
any and all Supporting Documents.
4. Covenant Not to Compete. For and in consideration of the payments made to
Consultant under this Agreement, Consultant, by signing this Agreement,
covenants and agrees that Consultant will not, directly or indirectly
without the prior written consent of GSV, for or on behalf of any Person:
(a) During the Term of this Agreement and for a period of one (1) year
afterwards, become interested or engaged as a shareholder, bondholder,
creditor, officer, director, partner, agent, contractor with, employer
or representative of, or in any manner associated with, or give
financial, technical, or other assistance to, any Person (as defined
below) for the purpose of engaging in the business of providing
services in competition with GSV or its Affiliates; provided, however,
that the ownership of less than one percent (1%) of the outstanding
stock of any publicly-traded corporation shall not be deemed to be a
violation of this Section 4(a) solely by reason of it; or
(b) During the Term of this Agreement and for a period of one (1) year
afterwards, enter into any agreement with, service, assist or solicit
the business of any customers of GSV or its Affiliates for the purpose
providing services for those customers in competition with GSV or its
Affiliates or to cause them to reduce or end their business with GSV
or such Affiliates; or
(c) During the Term of this Agreement and for a period of one (1) year
afterwards, hire, retain, or solicit the employment or services of
employees, or representatives of GSV or its Affiliates for the purpose
of causing them to leave the employment of GSV or its Affiliates;
(d) Upon the written request of Consultant during the term of the
non-compete provision, GSV may waive Section 4(a) as it applies to a
specifically identified company, and such waiver shall not be
unreasonably delayed or withheld.
(e) Consultant represents to GSV that the enforcement of the restrictions
contained in this Agreement would and will not be unduly burdensome to
Consultant. The parties to this Agreement hereby agree that the
covenants contained in this Agreement are reasonable and necessary
restrictions for the purpose of protecting the goodwill and other
business interests of GSV or its Affiliates, which includes GSV's or
its Affiliates' expectation of expanding their business without
competition from Consultant for such period. In the event that a court
should determine that any of such restrictions are unenforceable, the
parties agree that this Agreement shall nevertheless be enforceable
for the maximum term and maximum geographical area allowed by law.
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