EXHIBIT 4.8
CONSULTING AGREEMENT
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CONSULTING AGREEMENT, dated as of June 30, 2002 (this "Agreement"), by
and between XYBERNAUT CORPORATION, a Delaware corporation (the "Company"), and
DUNE HOLDINGS LTD., an Anguilla corporation (the "Consultant").
WITNESSETH:
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WHEREAS, the Consultant is in the business of providing advisory
services to companies, which services include, without limitation, introducing
companies to potential investors, presenting investment and other business
opportunities to companies, and other good and valuable services, and
WHEREAS, the Company desires to retain the advisory services of the
Consultant.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. TERM. The obligation of the Consultant to provide the services for
the Company contemplated by Section 2 hereof shall commence as of the date
hereof and shall continue for a period of twelve (12) months, unless the
retention of the Consultant under this Agreement is terminated earlier as
provided for herein, or is extended by the mutual written consent of the parties
hereto (the "Term").
2. SERVICES.
(a) The Company hereby retains the Consultant to perform and the
Consultant agrees to render to the Company, on a non-exclusive basis, and upon
the terms, provisions and conditions set forth herein, such advisory services as
may be requested by the Vice Chairman of the Company or the Board of Directors
of the Company, as a whole. Such services shall include, but shall not be
limited to, introducing the Company to potential investors in the Company,
presenting investment and other business opportunities to the Company, and
rendering such other related advisory services as may be requested by the
Company.
(b) The Consultant shall make its personnel available to meet with
representatives of the Company during the Term at such times as shall be
mutually agreed upon by the Consultant and the Company.
(c) The Consultant shall follow the directions of, and limitations
imposed by, the Company's Vice Chairman with respect to any of the services to
be provided by the Consultant pursuant to this Agreement. Without limiting any
of the other provisions hereof, the Consultant shall not issue or disseminate
any information, financial or otherwise, including,
without limitation, any press release or other written materials by or on behalf
of the Company without the prior written consent of the Company.
3. COMPENSATION.
(a) Upon execution of this Agreement, the Company agrees to pay the
Consultant a fee equal to 370,370 shares of the Company's common stock, par
value $0.01 per share (the "Shares"). The Shares shall be "restricted
securities" within the meaning of Rule 144 under the Securities Act of 1933, as
amended. The Company agrees to use its best efforts to file a registration
statement on Form S-3 (or other appropriate form then available) with the
Securities and Exchange Commission within thirty (30) days from the date hereof,
which registration statement shall include the Shares.
(b) The Consultant shall be responsible for payment of all taxes,
charges and similar payments and/or withholdings, if any, which may be payable
or otherwise due in respect of any consideration received by the Consultant
hereunder and shall indemnify the Company and hold the Company harmless from any
claim that the Company is obligated to make such payments.
4. RELATIONSHIP OF PARTIES. It is acknowledged and agreed that the
relationship between the Consultant and the Company established hereby is that
of two (2) independent contracting parties, with the Consultant acting as an
independent contractor of the Company and this Agreement and the services to be
rendered by the Consultant to the Company shall not in any way or manner create
or be deemed to create any partnership, agency, joint venture, employer-employee
or other relationship between the Company, on the one hand, and the Consultant,
on the other hand. The Consultant shall not hold itself out to any third party
in a manner that is contrary to the foregoing. In no event shall the Consultant
be able to legally bind the Company or to execute any document or instrument on
behalf of the Company. Nothing herein shall render or be deemed to render the
Company a fiduciary of the Consultant.
5. TERMINATION. The Company may terminate the services of, and its
relationship with the Consultant hereunder, without cause for any reason
whatsoever, upon thirty (30) days' prior written notice to the Consultant.
Notwithstanding any termination of the consulting services of the Consultant
pursuant to this Agreement, the Shares shall remain fully vested to the
Consultant.
6. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or by
courier service or if mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, in all cases addressed to the party
for whom intended at the address or telecopy number, as applicable, set forth
below (or to such other address or telecopy number, as applicable, as a party
shall have designated by notice in writing to the other party given in the
manner provided by this Section 6):
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If to the Company:
Xybernaut Corporation
12701 Fair Lakes Circle, Suite 550
Fairfax, Virginia 22033
Attention: Vice Chairman
If to the Consultant:
Dune Holdings Ltd.
c/o company formation group
28 Menachem begin St.
Ramat Gan
Israel 52521
Notices and other communications hereunder shall be deemed to have
been delivered to the intended recipient on the date that is five (5) days after
mailing if mailed as provided above, or on the date of delivery if delivered by
hand, on the first business day following delivery of the notice or other
communication to a international courier service of recognized standing, as
provided above, or on the date sent by telecopy, if the confirmation of receipt
is received by 5:30 p.m. (New York time).
7. AMENDMENTS, MODIFICATIONS, WAIVERS. No amendment, modification or
waiver of any term or provision of this Agreement shall not be effective unless
the same shall be in writing and signed by each of the Company and the
Consultant.
8. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without
giving effect to its conflicts of law or choice of law rules. This Agreement
shall not be construed or interpreted with any presumption against the party
causing this Agreement to be drafted.
9. JURISDICTION; WAIVER OF JURY TRIAL. With respect to any action,
suit or other proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, the parties unconditionally and irrevocably
submit to the exclusive jurisdiction of the federal District Court for the
Southern District of the State of New York. In any such action, suit or
proceeding in any jurisdiction brought against the Consultant by the Company, or
vice versa, the Consultant and the Company each knowingly and willingly waive
any right that the Consultant or the Company may have to a trial by jury.
10. ENTIRE AGREEMENT; SURVIVAL. This Agreement constitutes the entire
understanding an agreement between the parties with respect to the subject
matter hereof and it supersedes and replaces all prior and/or contemporaneous
understandings and agreements, whether written or oral, with respect to such
subject matter, all of which are merged herein. There are no promises,
representations or warranties between the parties with respect to such subject
matter, except as expressly set forth herein and representations, oral or
written, with regard to such matters.
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11. SEVERABILITY. If any term or provision of this Agreement shall be
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable under applicable law, it shall not affect the continued legality,
validity and enforceability of the remaining terms and provisions hereof, each
of which shall continue in full force and effect.
12. SUCCESSORS AND ASSIGNS; ASSIGNMENT; INTENDED BENEFICIARIES.
Neither this Agreement, nor any of the Consultant's rights, powers, duties or
obligations hereunder, may be assigned by the Consultant or delegated by the
Consultant, without the prior written consent of the Company. This Agreement
shall be binding upon and inure to the benefit of the Consultant and its
affiliates and their successors and permitted assigns and the Company and its
affiliates and their successors and assigns. Successors of the Company shall
include, without limitation, any corporation or corporations acquiring, directly
or indirectly, all or substantially all of the assets of the Company, whether by
merger, consolidation, purchase, lease or otherwise, and such successor shall
thereafter be deemed "the Company" for the purpose hereof.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which, shall constitute one and the same instrument, and
this Agreement shall become effective when one or more counterparts have been
signed and delivered by each of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
XYBERNAUT CORPORATION
By:
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Name: Steven A. Newman
Title: Vice Chairman
DUNE HOLDINGS LTD.
By:
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Name:
Title:
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