EXHIBIT 10.42
CONSULTANT AGREEMENT
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THIS CONSULTANT AGREEMENT (the "Agreement") is entered into on this
15th day of January, 2002 and is effective as of January 1st, 2002, (the
"Effective Date") by and between Junum Incorporated a Delaware corporation
("Junum" or the "Company"), and Xxxxxxxxx Xxxxxxxxx (the "Consultant").
WHEREAS, Consultant desires to provide the Company with her services
and the Company desires to receive Consultant's services on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. TERM OF AGREEMENT.
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The term of Consultant's services with the Company hereunder (the
"Term") shall commence no later than January 2, 2002 (or such other date as the
Company and Consultant shall mutually agree) (the "Commencement Date") and shall
terminate no earlier than three (3) months following the Commencement Date.
2. POSITION AND DUTIES.
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During the Term, Consultant shall provide services as a consultant of
the Company. Both the Company and the Consultant agree that Consultant will act
as an independent contractor in the performance of her services under this
Agreement. Consultant shall render such services on the terms set forth herein.
The services shall include providing advice and recommendations related to (i)
the Company's financial condition operations (ii) operational and financial
performance (iii) accounting records and reports (iv) tax matters (v) risk
management matters (vi) cost savings and improved efficiency (vii) personnel and
organizational structure and (viii) specific projects to be assigned to
Consultant by the Company (the "Services"). Although Consultant may handle
certain administrative details related to the Company's legal affairs, the
Consultant shall not provide legal advice to the and the Company shall not rely
on Consultant's opinion in making decisions concerning legal matters. It is
understood and agreed that Consultant shall not be responsible for and Junum
shall not permit Consultant to be responsible for (i) financial decisions
(including but not limited to those decisions related to payments and priority
of payments of the Company's obligations); (ii) executing, on Junum's behalf,
legal documents, checks, drafts or other financial instruments; (iii) binding
the Company to any contract or other legal or financial obligation; and (iv) any
other activity or responsibility not consistent with Consultant's position as a
non-executive, non-officer, non-director independent contractor.
3. OTHER ACTIVITIES OF CONSULTANT.
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The Company recognizes that Consultant may provide services to other
businesses and entities other than the Company. Consultant shall be free to
directly or indirectly own, manage, operate, join, purchase, organize or take
preparatory steps for the organization of, build, control, finance, acquire,
lease or invest or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, partner,
principal, manager, agent, representative, associate, consultant, investor,
advisor or otherwise with (collectively, be "affiliated" with), any business or
enterprise, or permit her name or any part thereof to be used in connection
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with any business or enterprise. Consultant may be affiliated with any entity
which may provide services to the Company. The Company hereby waives any
conflict of interest that may arise from a relationship between Consultant and
any entity with which Consultant is affiliated upon full disclosure of the
relationship to the Company.
4. COMPENSATION.
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During the Term, as compensation for her services hereunder, the
Company shall compensate Consultant as follows:
4.1 FEES. Company shall pay to Consultant fees ("Fees") at the
rate of Sixteen Thousand ($16,000) per month for services
provided under this Agreement. Fees shall be paid by the
Company in cash on a semi-monthly basis in arrears. Junum
shall issue Consultant a Form 1099 for all Fees paid under
this Consulting Agreement. The Consultant expressly refuses to
accept payment of Fees in securities of the Company or in any
other form of non-cash payment.
4.2 WARRANTS. On the date hereof, the Company shall issue to
Consultant warrants (the "Warrants") to purchase 150,000
shares of the Company's common stock at an exercise price
equal to $0.50 per share, which is the approximate Fair Market
Value as of the date hereof. The Warrants shall have
piggy-back registration rights, a term of five (5) years
following the date hereof and shall vest and become
exercisable (A) as to 75,000 of the shares of Company Stock on
the date hereof and (B) as to the remaining 75,000 shares, in
equal monthly installments of 25,000 shares commencing on
January 1, 2002 through and including March 1, 2002. Upon the
occurrence of a Change in Control of the Company prior to the
termination of this Agreement, the vesting schedule of the
Warrants shall automatically be accelerated, such that all of
such Warrant shares shall immediately vest as of the date of
such Change in Control. For purposes of this Agreement "Change
in Control" shall have the meaning set forth in the attached
Appendix A.
4.3 EXPENSES. During the Term, the Company shall reimburse
Consultant for any expenses reasonably incurred by her in
furtherance of her duties hereunder, on an accountable basis,
including without limitation travel including (i) expense
reimbursement for Consultant's automobile travel to and from
the Company's location and other locations; (ii) personal
cellular phone and fax costs attributable to Junum-related
business; (iii) coach class travel, meals, entertainment,
accommodations, and other customary expenses for Company
purposes, upon submission of vouchers or receipts and in
compliance with such rules and policies generally applicable
to executives of the Company.
5. Termination.
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5.1 TERMINATION FOR CAUSE. The Company may terminate the Agreement
hereunder for Cause at any time. "Cause" shall mean that
during the Term, the Consultant engaged in gross and willful
misconduct that is materially and significantly injurious to
the Company, and, after written notice of such conduct,
Consultant has failed to cease such conduct within not less
than 20 days. Any termination pursuant to this section shall
be communicated by written Notice of Intended Termination. For
purposes of this Agreement, a "Notice of Intended Termination"
shall mean a notice which shall clearly state the specific
termination provision in this Agreement relied upon and shall
set forth in reasonable and specific detail the facts and
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circumstances claimed to provide a basis for termination. For
20 days after receipt by Consultant of the Notice of Intended
Termination, Consultant shall have the opportunity to meet and
confer with the appropriate and authorized representative of
the Company with respect to any complaint or alleged breach,
violation or default hereunder, and shall have the opportunity
to cure any such breach, violation, default or any other event
which would be considered "Cause" hereunder for a period of 15
days following such meeting.
5.2 COMPENSATION UPON TERMINATION FOR CAUSE. In the event of
termination of this Agreement by the Company for Cause, the
Company shall pay to Consultant (i) all amounts of accrued but
unpaid Fees through the effective date of such termination,
and (ii) reimbursement for reasonable and verifiable expenses
incurred by Consultant through the date of notice of such
termination ((i) and (ii), the "Accrued Benefits"). Any
portion of the Warrants that has vested and become exercisable
prior to the date of termination shall remain exercisable for
a period of two (2) years following the date of termination of
this Agreement. Any portion of Consultant's Warrants that have
not vested as of the date of termination shall terminate as of
such date.
5.3 COMPENSATION UPON TERMINATION WITHOUT CAUSE. In the event the
Company terminates this Agreement without Cause as defined
herein, or does not fully comply with the termination and
hearing procedures specified in Section 5.1 herein, then the
Company shall pay to Consultant as actual and liquidated total
damages (i) the Accrued Benefits, and (ii) continued payment
of Fees for the remainder of the Term. In addition, all
warrants held by Consultant shall vest and become immediately
exercisable.
5.4 COMPENSATION UPON TERMINATION BY REASON OF CONSULTANT'S DEATH
OR TOTAL DISABILITY. In the event that this Agreement is
terminated by reason of Consultant's death or Total Disability
(as defined below), Consultant or Consultant's estate, as the
case may be, shall be entitled to receive (i) the Accrued
Benefits, and (ii) any portion of the Warrants that have
vested and become exercisable prior to the date of
termination. "Total Disability" shall mean any physical or
mental disability that, even after reasonable accommodation by
the Company, prevents Consultant from performing one or more
of the essential functions of her position and which is
expected to be of at least 30 days duration.
6. PROTECTION OF CONFIDENTIAL INFORMATION.
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During the course of providing services to the Company, Consultant may
be exposed to documents and other information regarding the confidential affairs
of the Company, including without limitation information about its past, present
and future financial condition, the markets for s products, past, present or
future actual or threatened litigation, trade secrets, current and prospective
customer lists, operational methods, acquisition plans, prospects, plans for
future development and other business affairs and information about the Company
not readily available to the public (the "Confidential Information"). Consultant
shall not divulge, disclose, or otherwise use any Confidential Information for a
period of two (2) years from the Effective Date, unless and until such
information is readily available in the public domain or unless such disclosure
is required by law or occurs in the normal course of performing Consultant's
services to the Company.
7. INDEMNIFICATION.
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The Company agrees to indemnify and hold harmless Consultant to the
fullest extent possible from and against any and all losses, claims, damages,
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and liabilities, joint or several (and all actions, claims, proceedings and
investigations in respect thereof), caused by, related to or arising out of,
directly or indirectly, the services provided under this Agreement, whether
under any statute, under common law, or otherwise. The Company will also
reimburse Consultant for all expenses (including attorneys' fees), as such
expenses are incurred, in connection with investigating, preparing to defend or
defending any such action, claim, proceeding or investigation, whether or not in
connection with pending or threatened litigation in which Consultant is a party
or target. If for any reason the foregoing indemnification is unavailable to
Consultant or insufficient to hold it harmless, then the Company will contribute
to the amount paid or payable by Consultant as a result of such loss, claim or
damage or liability in such proportion as is appropriate to reflect the benefits
received by the Company and the fault of the Company, as well as any relevant
equitable considerations. Consultant will have the right to retain counsel of
her own choice to represent Consultant, and the fees and expenses of such
counsel will be paid by the Company. Such counsel will, to the fullest extent
consistent with its professional responsibilities, cooperate with the Company
and any counsel designated by the Company. The indemnification, contribution and
expense reimbursement provisions in this Section 7 are in addition to, and not
in lieu of, any other obligation or liability the Company might otherwise have
to Consultant. Neither termination nor completion of this Agreement will affect
the provisions of this section, which will remain operative and in full force
and effect.
8. ARBITRATION AND GOVERNING LAW.
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Any controversy, claim, or counterclaim arising from this Agreement
between the Company and the Consultant shall be submitted to and decided by
final and binding arbitration by a single arbitrator administered in Los
Angeles, California by JAMS under its commercial rules, and shall apply
California law without regard to conflict of laws provisions. The arbitrator may
not, in any event, either make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement, or alter, amend, modify
or change any of the terms of this Agreement. The arbitrator's decision shall be
rendered within 30 days after the conclusion of the arbitration hearing, and the
arbitrator shall make findings of fact and shall set forth the reasons and legal
bases for the decision. Such arbitrator's decision shall be final and binding on
the parties and a judgment upon the decision rendered may be entered in any
court having jurisdiction thereof. The prevailing party in such dispute shall be
entitled to recover from the other party all reasonable costs and fees of
enforcing any right of the prevailing party including, without limitation, any
JAMS administration fee, the arbitrator's fee, costs for the use of facilities
during the hearings, expert fees, accountant's fees and expenses, and attorneys'
fees and expenses.
9. NOTICES.
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Any notice required, permitted or desired to be given pursuant to any
of the provisions of this Agreement shall be deemed to have been sufficiently
given or served for all purposes if delivered in person or sent by certified
mail, return receipt requested, postage and fees prepaid, or by national
overnight delivery prepaid service to the parties at their addresses set forth
below. Any party hereto may at any time and from time to time hereafter change
the address to which notice shall be sent hereunder by notice to the other party
given under this paragraph. The date of the giving of any notice sent by mail
shall be the day two (2) days after the posting of the mail, except that notice
of an address change shall be deemed given when received. The addresses of the
parties are as follows:
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If to the Company: Junum Incorporated
Attn: Xxxxx Xxxxxxx, President
0000 Xxxxxxxxx Xx.
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Consultant: Xxxxxxxxx Xxxxxxxxx
000 Xxx Xxxxxxx
Xxxxx Xxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Any party may change such party's address for notices by notice duly given
pursuant hereto.
10. GENERAL.
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10.1 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of California without giving effect to conflicts of laws
principles thereof which might refer such interpretations to
the laws of a different state or jurisdiction.
10.2 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties relating to Consultant's services
to the Company and cancels and supersedes all agreements,
arrangements and understandings relating thereto made prior to
the date hereof, written or oral, between the Consultant and
the Company. This Agreement shall not be altered or modified
except in writing, duly executed by the parties hereto.
10.3 AMENDMENTS; WAIVERS. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or
covenants hereof may be waived, only by a written instrument
executed by the parties, or in the case of a waiver, by the
party waiving compliance. The failure of any party at any time
or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to
enforce the same. No waiver by any party of the breach of any
term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver
of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
10.4 SUCCESSORS AND ASSIGNS; BINDING AGREEMENTS. This Agreement
shall inure to the benefit of and shall be binding upon the
Company (and its successors and assigns) and Consultant and
her heirs, executors and personal representatives. Prior to
the effectiveness of any succession (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the
Company, the Company will require the successor to expressly
assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to
perform it if no such succession had occurred. As used in this
Agreement, "Company" shall mean the Company as defined above
and any successor to its business and/or assets which executes
and delivers the Agreement provided for in this Section 10.4
or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law or otherwise.
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10.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. If
any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such
provision, together with all other provisions of this
Agreement, shall remain valid and enforceable and continue in
full force and effect to the fullest extent consistent with
law. In lieu of any such invalid, illegal or unenforceable
provision, the parties hereto intend that there shall be added
as part of this Agreement a term, covenant or provision as
similar in terms to such invalid, illegal or unenforceable
term, covenant of provision, or part thereof, as may be
possible and be valid, legal and enforceable.
10.6 WARRANTY. The Company and Consultant each hereby warrant and
agree that each is free to enter into this Agreement, that the
parties signing below are duly authorized and directed to
execute this agreement, and that this Agreement is a valid,
binding and enforceable against the parties hereto.
10.7 CAPTIONS. The section headings contained herein are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
10.8 SURVIVAL OF TERMS. Notwithstanding the termination of this
Agreement for whatever reason, the provisions hereof shall
survive such termination, unless the context requires
otherwise.
10.9 COUNTERPARTS; FACSIMILE. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original but all such
counterparts together shall constitute one and the same
instrument. Such execution may be by facsimile. Any signature
by facsimile shall be valid and binding as if an original
signature were delivered.
IN WITNESS WHEREOF, Consultant and the Company have executed this Agreement as
of the date first written above.
JUNUM INCORPORATED
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
CONSULTANT
/s/ Xxxxxxxxx Xxxxxxxxx
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Xxxxxxxxx Xxxxxxxxx
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APPENDIX A
"CHANGE IN CONTROL" means the occurrence of any of the following: (A)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company to any "person" (as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Acr'), (B) the adoption of a plan relating to the liquidation or
dissolution of the Company, (C) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any
"person" becomes the "beneficial owner" (as such terms are used in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of capital
stock of the Company representing a greater proportion of the voting power of
the Company's outstanding voting securities than the shares of Company stock
"beneficially owned" by the Principal Shareholders and their Related Parties in
the aggregate as defined below. For purposes of this definition, any transfer of
an equity interest of an entity that was formed for the purpose of acquiring
voting stock of the Company will be deemed to be a transfer of such voting stock
as corresponds to the portion of the equity that has been so transferred.
"PRINCIPAL SHAREHOLDERS" means those shareholders which hold beneficial
ownership of an aggregate 51% or more of the outstanding shares of the Company
on the Effective Date.
"RELATED PARTY" with respect to any Principal Shareholder means any (A)
spouse or immediate family member of such Principal Shareholder, (B)
corporation, partnership or any other entity, the stockholders, partners, owners
or persons beneficially holding an 80% or more controlling interest of which
consist of such Principal Shareholder and/or such other persons referred to in
the immediately preceding clause (A), or (C) trust, the beneficiaries holding
more than a 50% beneficial interest of which consist of any Principal
Shareholder and/or other such persons referred to in clause (A), so long as the
Principal Shareholder or any of the other persons referred to in clause (A)
above or any other Principal Shareholder serves as trustee therefore and, in
such capacity, possesses and retains the right to vote, at such trustee's
absolute discretion, all shares of capital stock held in such trust.
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