[EXHIBIT 99.2]
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CONSULTING AGREEMENT
This Agreement is made as of February 18, 2004 between
Epicus Communications Group, Inc. (the "Company"), a publicly
traded company, headquartered in West Palm Beach, Florida, and
Xxxxx Xxxxxxx (the "Consultant"), of Xxxxxxx & Associates,
located in Xxxx Raton, Florida. The Company is a "holding
company" doing business primarily via its wholly owned subsidiary
EPICUS, Inc., in the field of telecommunications. The
Consultant has extensive experience in the in working with and
developing public companies, and the Company seeks to benefit
from the Consultant's expertise by retaining the Consultant as a
consultant. The Consultant wishes to perform consulting services
the Company. Accordingly, the Company and the Consultant agree
as follows:
1. Services.
(a) The Consultant shall provide consulting services to
the Company with respect to matters related to all aspects of the
business of the company. The Consultant shall be engaged by the
Company as a consultant for the exchange of ideas and to conduct
research for, and on behalf of, the Company. These areas of
consultancy may include but are not limited to: (i) serving on
the Company's various advisory committees, and attending their
planning meetings; (ii) providing advice regarding the Company's
public image, product lines, and the general direction of its
merger and acquisitions program; (iii) assist in the evaluation
of the Company's advertising and marketing programs and
personnel. (iv) generally advising the Company in its efforts to
produce, develop, and market its public image.
(b) Upon request by the Company, and at times mutually
agreed upon by the Company and the Consultant, the Consultant
shall devote up to 20 days a month to providing consulting
services to the Company pursuant to this Agreement.
(c) The Company acknowledges that the Consultant is not
employee of the Company, but is nonetheless subject to the
Company's policies regarding legal issues, ethics, conflicts of
interest and intellectual property.
2. Compensation.
As full consideration for the consulting services provided by the
Consultant for the term of this agreement, the Consultant will
receive 18,000,000 options to purchase an equivalent number of
shares of Epicus Communications Group's Common Stock at an
exercise price of $.02 per share Said options will expire one
year from the date of the execution of this agreement.
(a) Consultant agrees that at no point in time will he exercise
a sufficient number of options that would result in the
Consultant holding directly or indirectly more that 4.9% of the
Company's issued and outstanding stock. Indirect holdings for
this purpose include without limitation any of the Company's
securities issued or issuable to members of the Consultant's
immediate family.
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(b) In addition to the foregoing amount, the Company shall
promptly reimburse the Consultant for all reasonable expenses
incurred by the Consultant in providing consulting services under
this Agreement.
3. Competition.
The Consultant represents to the Company that the Consultant
does not have any agreement to provide consulting services to any
other party, firm, or company in the telecommunications industry
on matters relating to the industry, and will not enter into any
such agreement during the term of this Agreement.
4. Confidentiality.
(a) The Consultant may disclose to the Company any information
that the Consultant would acquired under any legal
circumstances. However, the Consultant shall not disclose to the
Company information that is proprietary to the company or its
subsidiaries and is not generally available to the public other
than through normal publication procedures.
(b) In providing consulting services to the Company
pursuant to this Agreement, the Consultant may acquire
information that pertains to the Company's products, processes,
equipment, programs, developments, or plans and that is both (i)
disclosed or made known by the Company to the Consultant and (ii)
identified as "proprietary" by the Company at any time
("Proprietary Information"). The Consultant agrees not to
disclose any Proprietary Information to third parties or to use
any Proprietary Information for any purpose other than
performance of consulting services pursuant to this Agreement,
without the prior written consent of the Company.
(c) Proprietary Information subject to paragraph 4(b) does
not include information that: (i) is or later becomes available
to the public through no breach of this Agreement by the
Consultant; (ii) is obtained by the Consultant from a third party
who had the legal right to disclose the information to the
Consultant; (iii) is already in the possession of the Consultant
on the date this Agreement becomes effective; or (iv) is required
to be disclosed by law, government regulation, or court order.
In addition, Proprietary Information subject to paragraph 4(b)
does not include information generated by the Consultant, alone
or with others, unless the information is generated solely as a
direct result of the performance of consulting services under
this Agreement.
5. Return of Materials.
The Consultant agrees to promptly return, following the
termination of this Agreement or upon earlier request by the
Company, all documentation written and/or electronically recorded
and distributed by the Company to the Consultant or written by
the Consultant on behalf of the Company and (i) all information
supplied by the Company in conjunction with the Consultant's
consulting services under this Agreement, or (ii) information
generated by the Consultant in the performance of consulting
services under this Agreement.
6. Intellectual Property.
(a) Subject to the terms of paragraph 6(b), below, the
Consultant hereby assigns to the Company any right, title, and
interest [he/she] may have in any invention, discovery,
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improvement, or other intellectual property which the Consultant,
alone or with others, develops solely as a direct result of
performing consulting services for the Company under this
Agreement. Any intellectual property assignable to the Company
pursuant to the preceding sentence is hereinafter referred to as
"Company Intellectual Property". Upon the request of the Company,
the Consultant shall execute such further assignments, documents,
and other instruments as may be necessary to assign Company
Intellectual Property to the Company and to assist the Company in
applying for, obtaining and enforcing copyrights, patents or
other rights in the United States and in any foreign country with
respect to any Company Intellectual Property. The Company will
bear the cost of preparation of all patent or other applications
and assignments, and the cost of obtaining and enforcing all
patents and other rights to Company Intellectual Property.
7. Term and Termination.
(a) Unless terminated earlier under paragraph 8(b), below,
this Agreement shall be for a term of six (6) months from the
date of execution.
(b) Without limiting any rights which either party to this
Agreement may have by reason of any default by the other party,
each party reserves the right to terminate this Agreement at its
convenience by written notice given to the other party. Such
termination shall be effective upon the date not earlier than 30
days following the date of such notice as shall be specified in
said notice.
(c) Termination of this Agreement shall not affect (i) the
Company's obligation to pay for services previously performed by
the Consultant or expenses reasonably incurred by the Consultant
for which the Consultant is entitled to reimbursement under
paragraph 2, above, or (ii) the Consultant's continuing
obligations to the Company under paragraphs 4(b) and 6(a),
above.
8. Miscellaneous.
(a) This Agreement shall inure to the benefit of and be
binding upon the respective heirs, executors, successors,
representatives, and assigns of the parties, as the case may be;
provided, however, the obligations hereunder of each party to the
other are personal and may not be assigned without the express
written consent of such other party.
(b) The relationship created by this Agreement shall be
that of independent contractor, and the Consultant shall have no
authority to bind or act as agent for the Company or its
employees for any purpose. The Company is not responsible for
payment of any taxes attributable to the remuneration to the
Consultant by the Company for the consulting services provided
for in this agreement.
(c) The Company may use the Consultant's name, and in doing
so may cite the Consultant's relationship to the Company, so long
as any such usage (i) is limited to reporting factual events or
occurrences, and (ii) is made in a manner that unless given
written consent by the Consultant, could not reasonably
constitute an endorsement of the Company or of any Company
program, product or service. The Company may use the
Consultant's name any press release, or quote the Consultant in
any company materials, or otherwise use the Consultant's name in
reporting any factual events or occurrences.
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(d) Notice given by one party to the other hereunder shall
be in writing and deemed to have been properly given or paid if
deposited with the United States Postal Service, registered or
certified mail, addressed as follows:
Epicus Communications Group, Inc.
0000 Xxxxxxx Xxxxx #0
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx & Associates
0000 XX Xxxxxxxxx Xxxx. - Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(e) This Agreement supersedes all previous agreements and
discussions relating to the subject matters hereof and
constitutes the entire agreement between the Company and the
Consultant with respect to the subject matters of this
Agreement. This Agreement may not be modified in any respect by
any verbal statement, representation, or agreement made by any
employee, officer, or other representative of the Company, or by
any written documents unless it is signed by an officer of the
Company and by the Consultant. The Company and the Consultant
acknowledge and agree that any amendment of this Agreement
(including, without limitation, any extension of this Agreement
or any change from the terms of paragraph 2 in the consideration
to be provided to the Consultant with respect to services to be
provided hereunder) or any departure from the terms or conditions
hereof with respect to the Consultant's consulting services for
the Company is subject to the approval of the Company's Board of
Directors.
(f) If any provision of this Agreement is adjudicated to be
invalid, unenforceable, contrary to, or prohibited under
applicable laws or regulations of any jurisdiction, such
provision shall be severed and the remaining provisions shall
continue in full force and effect.
(g) The Consultant and the Company acknowledge that (i) the
Consultant is entering into this Agreement in [his/her]
individual capacity and not as an employee or agent of the
Company.
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Any dispute as
to this Agreement shall be submitted to the American Arbitration
Association in accordance with the rules applicable in Palm Beach
County, Florida. The Parties hereto consent to jurisdiction in
Florida for all purposes. A Judgment based upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction, including reasonable attorney fees to the party
prevailing in such Arbitration, and incurred in a special
proceeding to obtain entry of such Judgment. The Parties hereto
agree to go to Mediation prior to Arbitration to resolve any
dispute.
IN WITNESS WHEREOF, the parties have executed this
Agreement effective the date first stated above.
For: Epicus Communications Group, Inc.
By:_______________________________ ______________________
Xxxxxx Xxxxxxx, President Date
For: Consultant
By:_______________________________ ______________________
Many Xxxxxxx, Consultant Date
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