Exhibit 10.9
NX NETWORKS, INC.
CONSULTING AGREEMENT
Agreement ("Agreement") dated this 1st day of December, 2000 by and between Nx
Networks, Inc., a Delaware corporation doing business as Nx Networks and having
its principal office located at 13595 Dulles Technology Drive, Herndon, VA 22071
("Nx Networks") and Keir Kleinknecht, an individual residing at the address
below his signature ("Consultant"). Nx Networks and Consultant are sometimes
referred to hereinafter singly as "party" and collectively as "parties."
1. TERM. Subject to the terms of this Agreement, the term of this
Agreement shall commence on the date specified above and continue for a period
of two (2) years, provided that unless either party gives the other notice of
termination not later than 15 days before the scheduled termination of this
Agreement, the term shall continue for successive thirty (30) day periods until
either party terminates this Agreement upon thrity (30) days prior written
notice.
2. CONSULTING SERVICES. Consultant agrees to perform such consulting
services as are requested of him from time to time by the Chief Executive
Officer of Nx Networks. The time and location of performance shall be as
mutually agreed between Consultant and the Chief Executive Officer of Nx
Networks.
3. COMPENSATION.
a) RETAINER. Nx Networks shall pay to Consultant a retainer of $15,000
per calendar month during the term of this Agreement, prorated for partial
months, which amount shall be payable within ten (10) days after the end of each
month.
b) WARRANTS. Nx Networks shall grant to Consultant warrants to
acquire common stock of Nx Networks. The exercise price of all such warrants
shall be $0.70 per share, and shall have a term of five years. The warrants
shall be granted as follows:
o 240,000 warrants upon execution of this Agreement, for services
pursuant to this Agreement;
o 100,000 warrants upon execution of this Agreement, which will
only vest if a new chief executive officer joins Nx Networks on
or before January 15, 2001; and
o 160,000 warrants upon execution of this Agreement, which will
only vest if a financing for at least $5 million is secured on or
before February 15, 2001.
4. NON-EXCLUSIVE AGREEMENT. Nx Networks and Consultant do not intend that
any exclusive relationship be created between them. Each party is free to
independently pursue similar business opportunities.
5 CANCELLATION OF SERVICES. Either party has the option of canceling
this Agreement at any time, effective upon notice to the other of such
termination.
6. ASSIGNMENT. Consultant hereby agrees that all work provided hereunder
shall be considered "work for hire" and that Netrix shall own all intellectual
property rights to the deliverables described in Appendix A. Consultant agrees
to complete any necessary paperwork, including but not limited to the execution
of a formal Assignment Agreement in order to perfect Netrix' interests in such
intellectual property rights.
7. NOTICES. All notices required hereunder shall be given in writing to
the address listed above, either by personal delivery, by first class mail,
return receipt requested, or by telex or facsimile. The date upon which any such
notice is so personally delivered, or the date three (3) days after it is
deposited in the mail, or the date the telex or fax is sent, shall be deemed to
be the date of notice irrespective of the date appearing therein.
8. INDEPENDENT CONTRACTORS. The relationship of Nx Networks and
Consultant established by this Agreement is that of independent contractors and
nothing contained herein shall be construed to: (i) give either party the power
to direct and control the day-to-day activities of the other; (ii) constitute
the parties as partners, joint venturers, co-owners or otherwise as participants
in a joint or common undertaking; or (iii) allow either party to create or
assume any obligation on behalf of the other for any purpose whatsoever.
9. ASSIGNMENT. Any assignment by Consultant of this Agreement or any of
its rights or obligations hereunder, either voluntarily or by operation of
law shall be void without prior written consent of Nx Networks.
10. SURVIVAL OF OBLIGATIONS. All obligations of either party which, by
their nature, require performance after the expiration or termination of this
Agreement, shall survive the expiration or termination of this Agreement and
continue to be enforceable.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
12. PUBLICITY. Neither party shall have the right to include the other party's
name in marketing and other materials or to disclose and/or summarize the
general nature of this Agreement except to comply with employment laws or when
requested to do so in writing by the other party.
13. ENTIRE AGREEMENT. This Agreement together with the Appendices attached
hereto, constitutes the entire Agreement between the parties.
Executed as of the date first above written.
NX NETWORKS, INC. Keir Kleinknecht
By:___________________ Signature:____________________
Title:__________________ Address: 242 East 48th Street
New York, NY 10017
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