CONSULTING AGREEMENT
Exhibit
4.1
THIS
CONSULTING AGREEMENT is made this 28th
day of
November, 2005, by and between Summus, Inc., a Delaware corporation, with its
principal place of business at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx Xxxxxxxx, 00000 ("SUMMUS") and Xxxx Xxxxx, individually, with his
principal place of residence at 000 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
("Consultant").
RECITALS:
A. SUMMUS
is
primarily engaged in the development of mobile media applications that optimize
the consumer wireless experience.
B. In
view
of the skills, knowledge and qualifications of Consultant which SUMMUS perceives
to be of benefit to the business of SUMMUS, SUMMUS desires to retain the
services of Consultant to render certain consulting services to SUMMUS described
in Exhibit A attached hereto, and Consultant desires to provide consulting
services to SUMMUS, on the terms and conditions set forth herein.
C. The
parties intend that Consultant shall be an independent contractor with SUMMUS
under this Agreement and not an employee of SUMMUS.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants contained
herein, and for other good and valuable consideration, the parties, intending
to
be legally bound, agree as follows:
1. Retention.
SUMMUS
hereby retains Consultant, and Consultant hereby agrees to render consulting
services to SUMMUS, upon the terms and conditions set forth herein.
2. Duties.
Consultant
covenants and agrees that he will, as an independent contractor, perform
diligently and to the best of his talents, skills and expertise, the services
set forth in Exhibit A attached hereto; other
services
and projects may be added to Exhibit A by agreement of the parties hereto.
Except as set forth on Section 12 of this Agreement, Consultant shall not assign
or delegate the performance of any such services to any other person, firm
or
corporation without the prior consent of SUMMUS. Consultant shall render
services at Consultant's offices, but will, at mutually agreeable times, provide
services at SUMMUS’ office.
Consultant
shall have the right to engage in any other gainful activities and business
in
his sole and absolute discretion, provided that Consultant hereby agrees that
he
shall not engage in any activities or businesses which directly conflict or
compete with the activities and business of SUMMUS during the term of this
Agreement.
3. Independent
Contractor Status.
The
parties recognize that Consultant is an independent contractor and not an
employee, agent, partner, joint venturer or representative of SUMMUS. Nothing
in
this Agreement
shall
be
construed to mean that the parties are members of any partnership, joint
venture, association, syndicate or other entity or to confer on either party
any
express, implied or apparent authority to incur any obligation or liability
on
behalf of the other party. Consultant shall at all times represent and disclose
to any and all third parties that he is an independent contractor, and not
an
employee, agent or representative, of SUMMUS. SUMMUS shall not withhold any
funds from Consultant for tax or other governmental purposes. Consultant shall
be responsible for all taxes paid to federal agencies. Consultant shall not
be
entitled to receive any employment benefits offered to employees of SUMMUS,
including workers' compensation insurance coverage. SUMMUS shall not exercise
control over Consultant.
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4. Compensation.
SUMMUS
shall pay to Consultant, as compensation for the services to be rendered
hereunder, the amounts set forth in Exhibit B attached hereto.
5. Term.
This
Agreement shall commence on the date first written above and shall continue
until February 28, 2006, unless otherwise terminated as provided
herein.
6. Termination.
Notwithstanding Paragraph 5 of this Agreement, SUMMUS or Consultant may
immediately terminate this Agreement without prior notice.
7. Nondisclosure.
Consultant will remain subject to the terms of the Confidentiality Agreement
executed by and between the SUMMUS and Consultant as of December __, 2005,
attached to this Agreement as Exhibit C
and
incorporated herein for all purposes.
In
addition, Consultant shall ensure that Consultant's employees, officers,
directors, agents and representatives shall execute similar agreements
protecting SUMMUS’ proprietary information and agree to be bound by the terms
and conditions contained therein.
8. Records;
Record Keeping.
Consultant
shall keep and maintain complete written records of all work or research done
or
carried out by Consultant. These records shall be works made for hire, and
shall
remain the
exclusive
property of SUMMUS, and shall be maintained and remain at SUMMUS’ offices.
Consultant may keep one (1) copy of these records in Consultant's files solely
for references purposes, provided that
all
trade secrets and proprietary information belonging to SUMMUS are sanitized
from
such copy. Consultant shall have access to the records and materials of SUMMUS
at Consultant’s place of business that are necessary for Consultant to perform
the services and produce the work product as agreed to in Appendix A to this
Agreement. All materials and records provided to Consultant shall be subject
to
Section 7 of this Agreement.
9. Rights
to Work.
The
parties acknowledge that any work performed by Consultant for SUMMUS is being
created in connection with SUMMUS’ engagement of Consultant and shall be deemed
"work made for hire"
under
the
U.S. copyright law. SUMMUS shall have the right to use the whole work, any
part
of parts thereof, or none of the work, as it sees fit. SUMMUS may alter the
work, add to it, or combine it with any other work or works, at its sole
discretion. Notwithstanding the foregoing, all original material submitted
by
Consultant as part of the work or as part of the process of creating the work,
including, but not limited to, programs, listings, printouts, documentation,
notes, flow charts and programming aids, shall be the property of SUMMUS whether
or not SUMMUS uses such material; provided, however, that any templates or
previous work product of the Consultant used by Consultant to create or develop
any work product for SUMMUS shall be the sole property of Consultant.
All
programs, specifications, documentation, and all other technical information
prepared by Consultant in connection with the performance of its services
hereunder will become and remain SUMMUS’ sole property. SUMMUS shall retain
title to all material and documentation, including, but not limited to, systems
specifications, source code and object code furnished by SUMMUS to Consultant
or
delivered by SUMMUS into the Consultant's possession. SUMMUS has the right
to
obtain and to hold in its own name, copyrights, registrations or such other
protection as may be appropriate to the subject matter, and any extensions
and
renewals thereof. Consultant agrees to provide SUMMUS and any person designated
by SUMMUS reasonable assistance required to perfect the rights defined in this
Section without further payment or compensation. Consultant shall immediately
return all such material or documentation within seven days of any request
by
SUMMUS or upon the termination or conclusion of this Agreement, whichever occurs
first.
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Consultant
hereby grants, assigns and conveys to SUMMUS all right, title and interest
in
and to all inventions, works of authorship and other proprietary data, and
all
other materials (as well as the copyrights, patents, trade secrets, and similar
rights attendant hereto) conceived, reduced to practice, authored, developed,
or
delivered by Consultant or his employees, agents, consultants, contractors
and
representatives under this Agreement.
Consultant's
obligations under this Agreement shall survive expiration or termination of
this
Agreement and any amendments thereto.
During
and after the term of this Agreement, Consultant will cooperate fully in
obtaining patent and other proprietary protection for the materials, products
and documentation produced by Consultant under this Agreement, all in the name
of SUMMUS and at SUMMUS’ cost and expense, and, without limitation, shall
execute and deliver all requested applications, assignments, and other
documents, and take such other measures as SUMMUS shall reasonably request,
in
order to perfect and enforce SUMMUS’ rights in the materials, products, and
documentation. Consultant appoints SUMMUS as his attorney-in-fact to execute
and
deliver any such documents on Consultant's behalf in the event Consultant fails
to do so.
10. Adherence
to Laws.
Consultant agrees that in carrying out his duties and responsibilities under
this Agreement, he will neither undertake nor cause, nor permit to be
undertaken, any activity which either (i) is illegal
under
any
laws, decrees, rules, or regulations in effect in either the United States
or
foreign country if applicable; or (ii) would have the effect of causing SUMMUS
to be in violation of any laws, decrees, rules, or regulations in effect in
either the United States or foreign country, if applicable. Consultant shall
defend, indemnify and hold SUMMUS harmless from and against any and all damages
and expenses, including legal fees, incurred directly or indirectly as a
consequence of Consultant's failure to comply with any such laws or regulations.
11. Indemnification.
Consultant shall indemnify, and hold harmless SUMMUS and its officers,
directors, employees, agents, parent, subsidiaries, and other affiliates, from
and against any and all losses, damages,
costs,
liability, and expense whatsoever (including attorneys' fees and related
disbursements) incurred by reason of any failure by Consultant to perform any
covenant or agreement of Consultant set forth herein. due to the gross
negligence and/or willful acts of Consultant or Consultant's personnel.
12. Assignment;
Amendment.
This
Agreement is not assignable by either Consultant or SUMMUS without the consent
of the other party except that SUMMUS may assign this Agreement to an affiliate
of SUMMUS
upon
written notice to Consultant and Consultant may assign this Agreement to a
limited liability company, limited partnership or other entity established
by
Consultant as the entity through which Consultant provides consulting services.
No alteration, modification, amendment, or other change of this Agreement shall
be binding on the parties unless in writing, approved and executed by Consultant
and an executive officer of SUMMUS.
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13. Notices.
Any
notice or other communication pursuant to this Agreement shall be in writing
and
shall be deemed to have been fully given upon receipt to the following addresses
or such other addresses as the parties may provide in writing to the other
from
time to time:
If
to SUMMUS:
Summus,
Inc.
000
Xxxxxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Attn :
Xxxxxx X. Xxxxx
Chief
Financial Officer
|
If
to CONSULTANT:
Xxxxxxx
Xxxxx
000
Xxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
|
14. Governing
Law.
This
Agreement shall be deemed to be a contract made under the laws of the State
of
Delaware and for all purposes it, plus any related or supplemental agreements,
exhibits or annexes shall be construed in accordance with and governed by the
laws of the State of Delaware, excluding its principles of conflicts of laws.
The parties hereto agree that any and all disputes arising out of or concerning
this Agreement shall be litigated and adjudicated in the state and/or federal
courts located in the State of Delaware, and each party consents to and submits
to such jurisdiction.
15. Invalidity.
The
terms of this Agreement shall be severable so that if any term, clause, or
provision hereof shall be deemed invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect
the
remaining terms, clauses, and provisions hereof, the parties intending that
if
any such term, clause, or provision were held to be invalid prior to the
execution hereof, they would have executed an agreement containing all the
remaining terms, clauses, and provisions of this Agreement.
16. Waiver
of Breach.
The
waiver by either party hereto of any breach of the terms and conditions hereof
will not be considered a modification of any provision, nor shall such a waiver
act to bar the enforcement of
any
subsequent breach.
17. SUMMUS
Property.
All
SUMMUS property in the possession or control of Consultant including, but not
limited to specifications, documentation, source code, magnetic media, and
building entry keys and cards,
as
well
as all material developed or derived by Consultant in performing its duties
under this Agreement will be returned by Consultant to SUMMUS on demand, or
at
the termination of this Agreement whichever shall come first.
19. Entire
Agreement.
Except
for the Confidentiality, Non-Disclosure and Non-Compete Agreement referenced
in
Paragraph 7, this Agreement shall constitute the entire agreement between the
parties hereto and
replaces
and supersedes all prior agreements, written and oral, relating to the subject
matter hereof, between the parties to this Agreement.
20. Surviving
Sections.
All
sections of this Agreement regarding covenants, confidentiality obligations,
proprietary rights, and indemnities by Consultant shall survive expiration
or
termination of this Agreement;
provided,
however, that no claim may be asserted after the earlier to occur of (i) the
date which is sixty days following the expiration of the applicable statute
of
limitation, or (ii) three (3) years following the date of this Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement under seal effective
the date first written above.
SUMMUS, INC.: | CONSULTANT: | |
By: ___________________________ | _____________________________ | |
Name:
Xxxx X. Ban
|
Name: Xxxx Xxxxx | |
Title:
Chief Executive Officer
|
SSN: |
5
EXHIBIT
A
Duties
of Consultant
Consultant
shall, upon the request of Summus, perform the following tasks and shall report
to the Chief Executive Officer or a person designated by the Chief Executive
Officer. Prior to beginning any projects covered under this Exhibit A, or any
amendment or addition hereto, Consultant and SUMMUS shall set forth in writing
a
project sheet, which shall include a description of each project to be worked
on
by the Consultant and a list of deliverables to SUMMMUS by the Consultant for
those projects in the designated time period.
TASKS:
Evaluation and Recommendation of entities to be acquired by Summus.
TIME
COMMITMENT: Average of two (2) days per week
Additional
projects may be added to this Exhibit A by the agreement in writing of the
parties to the Agreement to which this Exhibit A is attached. Consultant shall
be paid on such additional projects as shall be agreed to by the parties.
6
EXHIBIT
B
Compensation
Cash
Compensation.
(1) Consultant
shall be paid $15,000 on each of December 1, 2005, January 1, 2006 and February
1, 2006 (for a cumulative total of $45,000). This cumulative amount shall be
payable to Consultant regardless of the termination of the Agreement by Summus
or in accordance with its terms; however, if this Agreement is terminated by
Consultant, Consultant shall be paid through the effective date of such
termination by Consultant.
(2) In
addition, Consultant shall receive $15,000 at the closing of each acquisition
worked on by Consultant on behalf of Summus. Consultant shall not receive this
amount for any acquisition he participates in only in his capacity as a Director
of Summus.
Stock
Options.
Upon
the
execution of this Agreement, Consultant shall receive options to purchase 25,000
shares of Summus common stock; these options shall be priced at $2.20 per share.
These options shall vest at the rate of 1/12 monthly on the monthly anniversary
date of the Agreement to which this Exhibit B is attached and incorporated
into
for all purposes. This grant of options shall continue vesting regardless of
the
termination of the Agreement by Summus or in accordance with its terms; however,
if this Agreement is terminated by Consultant prior to February 28, 2006,
vesting shall cease as of the effective date of such termination by Consultant.
All shares underlying options received by Consultant shall be registered for
sale on Summus’ Registration Statement on Form S-8.
Shares
of Common Stock
Consultant
shall receive (a) 25,000 shares of Summus common stock upon the closing of
each
acquisition worked on by Consultant in which the total purchase price paid
by
Summus exceeds $10,000,000 and (b) 12,500 shares of Summus common stock upon
the
closing of each acquisition worked on by Consultant in which the total purchase
price paid by Summus is less than $10,000,000. Consultant shall not receive
these amounts for any acquisition he participates in only in his capacity as
a
Director of Summus. Consultant shall have “piggy-back” registration rights on
any shares of common stock received from Summus requiring Summus to register
such issued shares on its next required or voluntarily filed registration
statement on Form S-1 or on any other form on which Summus is eligible to file.
The
number of shares to be granted to Consultant pursuant to this provision shall
also apply to any acquisition of Summus by another entity.
Expenses.
Consultant shall be reimbursed for all normal and reasonable business expenses
in connection with the provision of services to SUMMUS; provided, however,
that
Consultant shall receive approval in writing from SUMMUS for any such expenses.
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EXHIBIT
C
CONFIDENTIALITY
AGREEMENT
THIS
CONFIDENTIALITY AGREEMENT (this “Agreement”), is made and entered into by and
between Summus, Inc., a Delaware corporation (“Summus”) located at 000
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, and Xxxx Xxxxx
(“Xxxxx”).
RECITALS:
A. Summus
and Xxxxx contemplate entering business and technical discussions relating
to
the project described on Schedule A hereto (the "Project");
B. In
connection with such discussions, each of the parties hereto may provide the
other with access to certain proprietary and confidential information of or
pertaining to the disclosing party, for which each party wishes to have made
subject to the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the premises, the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby agree as follows:
1. Definition
of Confidential Information; Exclusions.
(a) For
purposes of this Agreement, the term "Confidential Information" shall mean
trade
secrets, technical information, costs, designs, plans, drawings, specifications,
inventions, ideas, techniques, routines, test sequences, processes, studies,
systems, methods of operation and procedures, formulae, test data, know-how,
research and development (in whatever stage), computer programs, products,
services, technology, sales and marketing methods, customer lists, supplier
information, financial data or any other compilation of information, written
or
unwritten, that is used in the business of the applicable party hereto providing
such information (the "providing party") to the other party hereto (the
"receiving party") and that is not readily available to the public or gives
such
providing party an opportunity to obtain an advantage over its competitors
who
do not know or use such information. To the extent practical, disclosures of
Confidential Information will be made in writing or other tangible form and
shall be marked “Confidential” or “Proprietary.” Disclosures made orally or
visually shall not be considered “Confidential Information” unless they are
indicated as such in writing within 5 business days of initial
disclosure.
(b) The
term
"Confidential Information" does not include any information that is: (i) known
to the receiving party at the time of its receipt; (ii) currently in the public
domain or which hereafter becomes public knowledge in any way that does not
involve a breach of an obligation of confidentiality on the part of the
receiving party or any other person or entity; (iii) released by the providing
party to any third party free of an obligation of confidence; or (iv) obtained
or developed by or for the receiving party independently of and without
reference to any Confidential Information of the providing party.
8
2. Confidentiality
Obligation.
Except
as ordered by a court of competent jurisdiction or any other government
authority, each of Summus and Xxxxx hereby covenant, for a period of five years
from the date marked by the providing party on the applicable Confidential
Information, to:
(a) hold
the
Confidential Information disclosed to it by the providing party in the strictest
confidence;
(b) not
use
such Confidential Information except to evaluate or pursue the Project;
and
(c) not
disclose or provide access to such Confidential Information to any person or
entity, except those directors, officers, employees and agents who have a
demonstrated need to know such Confidential Information to evaluate the Project,
it being understood and agreed that the receiving party shall be responsible
for
any breach of this Agreement by any of its representatives.
In
addition, each party agrees that, without the prior written consent of the
other
party, each party and its representatives will not disclose to any other persons
that the Confidential Information has been made available, that discussions
or
negotiations are taking place concerning the project or any of the terms,
conditions or other facts respect thereto (including the status thereof);
provided, however, that either party may make such disclosure if it has received
the written opinion of its outside counsel that such disclosure must be made
in
order not to commit a violation of law.
3. Coordination
of Information Exchange.
To
coordinate the exchange of Confidential Information, Summus appoints Xxxx Ban
and Xxxxx appoints himself as their respective representatives to disclose
and
receive Confidential Information under the terms of this Agreement. Each party
shall inform its representative of all communications and exchanges of
Confidential Information to the other party. Either party may change its
representative upon written notice to the other party.
4. No
License.
Except
as expressly provided herein, this Agreement shall not be construed as granting
or conferring, either expressly or impliedly, any right, license or other
relationship with respect to the Confidential Information furnished by either
party hereto to the other. Each of Summus and Xxxxx hereby acknowledges and
agrees that all Confidential Information, in any form, is and shall remain
the
sole and exclusive property of the providing party thereof. No interest under
or
in any trade secrets, trademarks, patents, inventions, copyrights or other
rights is granted by this Agreement or by the disclosure or use of any
Confidential Information.
5. Return
of Confidential Information.
In the
event that either party hereto shall (i) communicate in writing that it has
no
further interest in pursuing the Project with the other party, or (ii) make
a
written request, for any reason whatsoever, for the return of its Confidential
Information, each party hereto shall:
(a) promptly
return all physical embodiments of or containing any Confidential Information
(including all copies thereof) of the other party hereto then in its possession,
custody or control, and
(b) destroy
all documents, memoranda, notes and other writings whatsoever prepared by or
on
behalf of the receiving party based on such Confidential
Information
9
Notwithstanding
the return of the Confidential Information, each party and its representatives
will continue to be bound by its obligations of confidentiality and other
obligations hereunder.
6. Compulsory
Disclosure.
If
either party becomes legally compelled by subpoena, civil investigative demand
or other similar process to disclose any Confidential Information of the other
party, then the receiving party shall promptly notify the providing party of
such compulsion so that the providing party shall have the opportunity to object
to such request or demand and to seek a protective order or other appropriate
remedy. If such protective order or other remedy is not obtained, or the
providing party waives compliance with the provisions of this Agreement, the
receiving party shall furnish only that portion of the Confidential Information
that is legally required to be disclosed and shall use its best efforts to
obtain assurances that the Confidential Information will be kept confidential
by
the person or persons seeking its disclosure.
7. Compliance
with Xxxxxxx Xxxxxxx and Public Disclosure Laws.
Each
party acknowledges that it may become aware of material, nonpublic information
concerning the other party in the course of the discussions and negotiations
contemplated with respect to the Project. Accordingly, each party agrees not
to:
(a) effect
or
seek, offer or propose (whether publicly or otherwise) to effect, or cause
or
participate in or in any way assist any other person to effect or seek, offer
or
propose (whether publicly or otherwise) to effect or participate in any trading
of any securities (or beneficial ownership thereof) of the other
party;
(b) disclose
or "tip" material nonpublic information concerning the other party to any person
or entity;
(c) give
trading advice of any kind to any person or entity concerning the other party;
or
(d) except
with the prior written consent of the other party, take any action that might
force the other party to make a public announcement under applicable securities
laws, including, without limitation, Regulation FD.
8. Remedies.
Each
party shall be responsible for any damages resulting from its breach of this
Agreement, including damages flowing from the further dissemination of
Confidential Information by a third party to whom such party, directly or
indirectly, furnished Confidential Information in breach of this Agreement.
Each
party acknowledges that money damages would be both incalculable and an
insufficient remedy for any breach of this Agreement and that any such breach
would cause the providing party irreparable harm. Accordingly, in the event
of
any breach or threatened breach of this Agreement, the providing party, in
addition to any other remedies at law or in equity it may have, shall be
entitled to injunctive relief and specific performance.
9. Miscellaneous.
(a) Binding
Effect.
Neither
this Agreement nor any of the rights or obligations of the parties set forth
herein may be assigned, in whole or in part, by either party without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of each of the parties and their respective successors
and
permitted assigns.
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(b) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Delaware. The court and authorities of the
State of Delaware and the federal district courts located within the State
of
Delaware shall have the sole jurisdiction and venue over all controversies
arising in connection with this Agreement, and each party waives any other
jurisdiction and venue to which it may otherwise be entitled.
(c) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the subject matter hereof and supersedes any prior agreements with
respect to such subject matter. No amendments or modifications to this Agreement
shall be valid or binding unless agreed to in writing signed by both
parties.
(d) No
Waiver.
No
failure or delay of a party to exercise any power or right under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such right or power (or any abandonment or discontinuance of steps to
enforce such a right or power) preclude any other or further exercise thereof
or
the exercise of any other right or power.
(e) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the last day and year indicated
below.
Summus, Inc. | Xxxx Xxxxx | |
By: _______________________ | _______________________ | |
Xxxx
X. Ban
|
||
Chief
Executive Officer
|
||
Date: _______________________ | Date: _______________________ | |
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SCHEDULE
A
The
parties intend to disclose certain confidential information in connection with
the following proposed project or venture:
Evaluation
and Recommendations of possible acquisition targets.
Checklist: | ||
Company: | Summus, Inc. | (Name) |
State Incorporated: | Delaware | |
Summus Contact: | Xxxx Ban | |
Chief Executive Officer | (Title) | |
919-807-5600 | (Main Number) | |
000-000-0000 | (Direct) | |
000-000-0000 | (Fax) | |
xxxx.xxx@xxxxxx.xxx | (E-mail) | |
Legal Company Name: | ______________________ | |
State Incorporated: | ______________________ | |
Contact: | ______________________ | (Name) |
______________________ | (Title) | |
Phone: | ______________________ | (Main Number) |
______________________ | (Direct) | |
______________________ | (Fax) | |
______________________ | (E-mail) | |
Nature of Confidential Information: Technical & Marketing Information_____________________________________________________________________________________________________________________ | ||
___________________________________________________________________________________________________________________________________________________________________________ | ||
___________________________________________________________________________________________________________________________________________________________________________ |