CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") made and entered into as of
the 24th day of September 1999 by and between Xxxxxx Bum Park (the
"Consultant"), Summus, Ltd. a Delaware corporation ("Summus") and High Speed Net
Solutions, Inc., a Florida corporation ("HSNS"). Summus and HSNS shall be
referred to collectively as the "Companies".
W I T N E S S E T H
WHEREAS, the Companies are desirous of engaging Consultant to provide
certain consulting services to the Companies and Consultant is desirous of
accepting such engagement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
1. ENGAGEMENT AS CONSULTANT. The Companies hereby engage Consultant to
perform consulting services to the Companies and Consultant hereby accepts such
engagement and agrees to provide consulting services for the benefit of the
Companies, in accordance with the terms of this Agreement.
2. DUTIES OF CONSULTANT. Consultant agrees to make reasonable and best
efforts to advise and assist the Companies in obtaining funding (the "Funds")
from Samsung Group ("Samsung"). For purposes of this Agreement, all references
to Funds shall include, but not be limited to, equity capital or equity
investments or any funding accepted by either of the Companies, including
license fees and/or royalties paid to either or both of the Companies by Samsung
pursuant to an agreement initiated and closed by Consultant's efforts.
Consultant agrees not to represent or introduce the wavelet technology of any
other individuals or companies to Samsung.
3. TERM. This Agreement shall commence as of the date hereof and shall
continue until June 30, 2000, at which time this Agreement shall terminate,
unless sooner terminated in accordance with the provisions hereof.
4. CONSULTING FEE: For services rendered hereunder, each Company will
pay or cause to be paid to Consultant an amount equal to the following formula:
As to Summus:
------------
Twelve percent (12%) of all Funds accepted and received by
Summus from Samsung.
As To HSNS:
----------
Four percent (4%) of all Funds accepted and received by HSNS
from Samsung. Two thousand share of HSNS common stock
(unregistered) for each One Hundred Thousand Dollars
($100,000.00) accepted and received by HSNS from Samsung.
Payments owed to Consultant under this Agreement will be made only from
collected Funds received from Samsung and shall be paid over the time period
during which payments from Samsung are received by either of the Companies. Each
Company agrees to make payments to Consultant within seven (7) business days of
receipt of cleared funds from Samsung in the Company's account. If there is a
failure by either Company to make any payment to Consultant within the time
required, the delinquent amount shall bear interest at the rate of ten percent
(10%) per annum and shall be owed to Consultant by the defaulting Company. In
addition, the Companies will reimburse Consultant for all normal, pre-approved,
out of pocket business expenses, including travel, meals, lodging and similar
expenses incurred while on business for the Companies upon documentation by
Consultant of such expenses.
5. INDEPENDENT CONTRACTOR STATUS. The parties expressly intend and
agree that Consultant is acting as an independent contractor and not as an
employee of either of the Companies. Consultant understands and agrees that he
shall not be entitled to any of the rights and privileges established for the
employees of the Companies (if any), including but not limited to the following
retirement benefits, medical insurance coverage, severance pay benefits, paid
vacation and sick pay, overtime pay or any of the foregoing items. Consultant
understands and agrees that neither Company will pay or withhold from the
compensation paid to Consultant pursuant to this Agreement any sums customarily
paid or withheld for or on behalf of employees for income tax, unemployment
insurance, social security, worker's compensation or any other withholding tax,
insurance or payment pursuant to any law of governmental requirement, and all
such payments as may be required by law are the sole responsibility of
Consultant. Consultant agrees to hold the Companies harmless against, and
indemnify the Companies for any of such payments of liabilities for which the
Companies, or either of them, may become liable with respect to such matters.
This Agreement shall not be construed as a partnership agreement.
The Companies shall have no responsibility for any of Consultant's
debts, liabilities or other obligations, or for the intentional, reckless,
negligent or unlawful acts or omissions of Consultant or Consultant's employees
or agents.
6. CONFIDENTIALITY. Consultant shall not for any reason or at any time,
whether during or after the term of this Agreement, disclose to any person
(except to the extent that the proper performance of this Agreement may require
disclosure to employees or agents of Samsung and such persons have entered into
a confidentiality agreement in form and substance satisfactory to the Companies)
any secret or confidential information obtained by Consultant in the course of,
or as a result of, performance of this Agreement, which secret or confidential
information relates to either Company or any subsidiary corporation of either
Company, unless so authorized by the President or Executive Vice President of
the Company to which such confidential information relates. Any information that
(a) was known prior to receipt from either Company free of any obligation to
keep such information confidential, or (b) is disclosed to third parties by the
Company to which such information relates without any requirement of
confidentiality or which becomes publicly available other than by unauthorized
disclosures, or (c) is independently developed by Consultant without reliance on
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any secret or confidential information as evidenced by his records, or (d) is
disclosed as compelled by law, shall not be deemed to be secret or confidential
for purposes of this Agreement. In the event of a breach or threatened breach by
Consultant of the provisions of this paragraph, the affected Company shall be
entitled to an injunction restraining Consultant from disclosing, in whole or in
part, any such secret or confidential information; provided, however, that
nothing herein shall be construed as prohibiting either Company from pursuing
any other remedies available for any such breach or threatened breach, including
the recovery of damages from Consultant.
7. RIGHTS TO MATERIALS. All records, files, memoranda, reports, price
lists, customer lists, plans, drawing, sketches, documents and the like
(together with all copies thereof) relating to the business of either Company or
any of their subsidiaries that Consultant shall use or prepare or come into
contact with in the course or, or as a result of, the performance of this
Agreement shall remain the sole property of the Company to whose business such
information relates. Upon termination of this Agreement or upon the prior demand
of either Company, Consultant shall immediately return all such materials to the
Company to which such materials belong.
8. RIGHTS TO INVENTIONS AND TECHNOLOGY. Any and all methods,
inventions, patents, trademarks, and other materials developed by the Companies,
their subsidiaries or any employees of the Companies or their subsidiaries that
Consultant shall use or come into contact with in the course or, or as a result
of, the performance of this Agreement shall be and at all times remain the sole
and absolute property of the Company that developed such patents, inventions or
materials.
9. TERMINATION FOR CAUSE. A nondefaulting party shall have the right to
terminate this Agreement upon the occurrence of any of the following events, and
the expiration of any applicable period of cure; (a) the failure of a Company to
make any payment within ten (10) days after the date when payment is due; (b)
the failure of Consultant to perform his duties to the reasonable satisfaction
of either of the Companies; (c) the failure of a party to comply with any other
term or condition of this Agreement within ten (10) days after written notice
specifying the nature of such default, without cure; and (d) any attempt by
Consultant to assign or otherwise transfer Consultant's rights hereunder.
In the event that after termination of this Agreement by the Companies
for cause, either of the Companies deals with or meets with Samsung, then this
Agreement shall continue to apply with respect to Samsung for a period of one
year after termination notwithstanding any notice of termination previously
given.
10. TERMINATION WITHOUT CAUSE.
(a) Any party may terminate this Agreement without cause upon not less
than thirty (30) days' prior written notice delivered to the other parties;
provided however that both Companies must agree to the termination of Consultant
provided for in this subsection.
(b) Upon termination without cause pursuant to subsection (a) of this
paragraph, Consultant shall remain entitled to any compensation calculated in
accordance with the formula in Paragraph 4 based on Funds already received by
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either Company from Samsung and expenses incurred by Consultant prior to
termination.
In the event that after termination of this Agreement by the Companies
without cause, either of the Companies deals with or meets with Samsung, then
this Agreement shall continue to apply with respect to Samsung for a period of
one year after termination notwithstanding any notice of termination previously
given.
11. REMEDIES UPON BREACH. In the event of any breach of this Agreement
by Consultant, the Companies shall be entitled, if they so elect, to institute
and prosecute proceedings in any court of competent jurisdiction, either in law
or in equity, to enjoin Consultant from violating any of the terms of this
Agreement, to enforce the specific performance by Consultant of any of the terms
of this Agreement and so to obtain damages, or any of the above, but nothing
herein contained shall be construed to prevent such remedy or combination of
remedies as the Companies may, in their discretion, choose to invoke. The
failure of either Company to promptly institute legal action upon any breach of
this Agreement shall not constitute a waiver of that or any other breach hereof.
12. MISCELLANEOUS PROVISIONS.
(a) All notices required or permitted to be given hereunder shall be
given in writing and either personally delivered, or delivered by confirmed fax
or overnight mail. If notices are given to the Companies, they shall be
addressed to:
Summus, Ltd.
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
High Speed Net Solutions, Inc.
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxx
If notices are to Consultant, they shall be addressed to:
Xxxxxx Bum Park
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
(b) This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and may not be modified or
amended except in writing signed by the party against whom such modification or
agreement is sought to be enforced.
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(c) Consultant acknowledges that this Agreement replaces in
its entirety that certain Consulting Agreement dated April 21, 1999 by and
between HSNS and Consultant, as amended by a letter dated April 26, 1999 from
HSNS to Consultant, agreed to by Summus, and that upon execution of this
Agreement, the former Consulting Agreement with HSNS shall be null and void and
of no further force and effect.
(d) This Agreement shall be governed and construed in
accordance with the laws of the State of North Carolina, without regard to
principles of conflicts of laws.
(e) In the event of any litigation concerning any controversy,
claim or dispute between the parties hereto arising out of or relating to this
Agreement or the breach hereof; or the interpretation hereof, the prevailing
party shall be entitled to recover from the losing party reasonable expenses,
attorney's fees, and costs incurred therein or in the enforcement or collection
of any judgment or award rendered therein.
(f) The rights and obligations of each Company under this
Agreement shall enure to the benefit of and shall be binding upon the successors
and assigns of that Company. Consultant may not assign his rights and duties
under this Agreement without the prior written consent of the Companies.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SUMMUS, LTD.
By:________________________________
Xxxxxxx X. Xxxxxxxxxx,
Chief Executive Officer
HIGH SPEED NET SOLUTIONS, INC.
By:_______________________________
Xxxxxx Xxx, President
CONSULTANT
By:________________________________
Xxxxxx Bum Park
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