CONSULTING AGREEMENT
Exhibit 5.02(c)
CONSULTING AGREEMENT (this “Agreement”) effective as of July 15, 2006, between WQN,
Inc., a Delaware corporation (the “Company”), and Xxxx Xxxxxxxx, an individual (the
“Consultant”).
RECITALS
A. The Company desires that it be able to call upon the knowledge and experience of the
Consultant for consulting services.
B. The Consultant will be providing his services hereunder as a former employee of the
Company and has knowledge of the Company’s operations and financial reporting requirements.
C. The Consultant is willing to render such services to the Company on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Engagement. During the term of this Agreement the Company engages the Consultant,
as an independent contractor subject to the terms and conditions of this Agreement, to serve as
Controller and Chief Accounting Officer of the Company and to perform financial consulting services
associated therewith, and to perform other business and financial consulting services that the
Company may from to time assign to the Consultant (the “Consulting Services”). The
Consultant understands that the Company is a publicly held company subject to the rules and
regulations of the Securities and Exchange Commission, and that the Consultant will be required to
certify the various financial reports filed by the Company during the term of this Agreement. The
Consultant will perform up to twenty (20) hours per week of Consulting Services at the request of
the Company, in its sole discretion. The Company and the Consultant accept such engagement upon
the terms and conditions in this Agreement.
2. Compensation and Reimbursement. The Consultant shall be paid seventy-five dollars
($75.00) for each hour rendered by Consultant in the performance of the Consulting Services. The
Company shall reimburse the Consultant (or, in the Company’s sole discretion, shall pay directly),
upon presentation of vouchers and other supporting documentation as the Company may reasonably
require, for reasonable out-of-pocket expenses incurred by the Consultant relating to the
performance of the Consultant’s duties hereunder. The Consultant shall present the Company a detail
xxxx for all Consulting Services rendered and expenses incurred on or before the 15th
day of each month, and the Company shall make payment to the Consultant on or before the end of the
month in which the xxxx is rendered.
3. Term and Termination. The term of the Consultant’s engagement shall commence on
the date hereof and shall terminate as set forth herein. Either party may terminate this Agreement
by giving thirty (30) days advance written notice to the other party of its desire to terminate,
and after said thirty (30) day period this Agreement shall become null and void.
4. Independent Contractor. In the performance of the Consulting Services, the
Consultant shall be deemed to be, and shall be, an independent contractor, and not a joint
venturer, partner, employee or agent with or of the Company. Without limiting the generality of
the foregoing, neither the Company nor the Consultant shall have the power to bind the other,
contractually or otherwise; the Consultant shall be entitled only to the compensation and
reimbursement set forth in Section 2 of this Agreement and not to any other so-called “fringe
benefits;” and the Consultant shall be solely responsible for all liabilities for any and all state
and federal taxes, withholding, FICA, FUTA, worker’s compensation, or other payments due in respect
of the compensation paid to the Consultant by the Company. The Consultant shall file all tax
returns and pay all taxes required in such connection on or before the due date thereof.
5. Assignment. This Agreement shall bind and inure to the benefit of only the
Consultant, the Company and the Company’s successors and assigns, and the Company’s legal
representatives, estate or intestate distributees. The Company may assign its rights and
obligations under this Agreement, in the Company’s sole discretion, by giving the Consultant
written notice of such assignment. The Consultant may not assign any of Consultant’s rights or
delegate any of the Consultant’s obligations under this Agreement. Any attempted assignment or
delegation by the Consultant shall be void.
6. Confidential Information. The Consultant shall not, at any time during or
subsequent to the termination of this Agreement, disclose, confirm, furnish or make available to,
or use for the benefit of, anyone other than the Company, any secret or confidential knowledge or
information with respect to the business or other affairs, assets, operations, plans or know-how of
the Company or its subsidiaries or affiliates, including, but not limited to, customer lists,
suppliers and products, unless: (a) such knowledge or information shall be in the public domain,
(b) such knowledge or information shall become generally known or in the public domain without any
disclosure on the part of the Consultant, or (c) disclosure of such knowledge or information shall
be compelled by a court of competent jurisdiction. In the event of a breach or threatened breach
by the Consultant of the provisions of this Section 6, the Company shall be entitled to an
injunction restraining the Consultant from disclosing, in whole or in part, such confidential
information. Nothing herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including the recovery of damages
from the Consultant.
7. Indemnification. The Company shall indemnify and hold the Consultant harmless from
and against any damages, losses or expenses suffered or paid as a result of any and all claims,
demands, suits, causes of action, proceedings, judgments and liabilities, including reasonable
attorneys’ fees arising out of, based upon or related to the Consultant’s performance of the Consulting
Services, except to the extent that such claims, demands, suits, causes of actions, proceedings,
judgments and liabilities are caused by the negligence or willful misconduct of the Consultant.
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8. Survival. No termination of this Agreement by either party, regardless of the
circumstances or reasons, shall terminate, amend or in any way affect the validity of the
provisions of Sections 6 and 7 hereof.
9. No Conflicts. The Consultant represents and warrants to the Company that
performance of the Consultant’s obligations under this Agreement does not and will not violate any
written or oral contract, agreement, or court order by which the Consultant is bound and the
Consultant covenants not to create such a violation during the term of this Agreement including,
without limitation, such violation created by using any information belonging to any third party,
that would be characterized as confidential information if such information belonged to the
Company.
10. Standards of Conduct. The Consultant agrees to adhere at all times to Company
policies and to conduct its services in strict compliance with applicable laws, rules and
regulations and with a strong commitment to the highest standards of business ethics.
11. Waivers and Amendments. The respective rights and obligations of the Company and
the Consultant under this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time or indefinitely)
or amended only with the written consent of a duly authorized representative of the Company and the
Consultant.
12. Entire Agreement. This Agreement constitutes the full and entire understanding
and agreement of the parties with regard to the subjects hereof and supersedes in its entirety all
other or prior agreements, whether oral or written, with respect thereto. Nothing herein shall
confer additional rights, money or property to the Consultant or expectancy with respect thereto by
reason of the Consultant’s performance of services hereunder or otherwise.
13. Notices. All demands, notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be personally delivered or
sent by facsimile machine (with a confirmation copy sent by one of the other methods authorized in
this Section), reputable commercial overnight delivery service (including Federal Express and U.S.
Postal Service overnight delivery service) or, deposited with the U.S. Postal Service mailed first
class, registered or certified mail, postage prepaid, as set forth below:
If to the Company, addressed to:
If to the Consultant, addressed to:
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Xxxx Xxxxxxxx, Principal
Xxxx Xxxxxxxx Group, LLC
00000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxxx Group, LLC
00000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Notices shall be deemed given upon the earlier to occur of (i) receipt by the party to whom
such notice is directed; (ii) if sent by facsimile machine, on the day (other than a Saturday,
Sunday or legal holiday in the jurisdiction to which such notice is directed) such notice is sent
if sent (as evidenced by the facsimile confirmed receipt) prior to 5:00 p.m. Central Time and, if
sent after 5:00 p.m. Central Time, on the day (other than a Saturday, Sunday or legal holiday in
the jurisdiction to which such notice is directed) after which such notice is sent; (iii) on the
first business day (other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) following the day the same is deposited with the commercial courier if
sent by commercial overnight delivery service; or (iv) the fifth day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) following deposit thereof
with the U.S. Postal Service as aforesaid. Each party, by notice duly given in accordance
therewith, may specify a different address for the giving of any notice hereunder.
14. Governing Law. This Agreement shall be construed and enforced in accordance with
and governed by the applicable laws of The State of Texas (without giving effect to any conflicts
or choice of laws provisions thereof that would cause the application of the domestic substantive
laws of any other jurisdiction)..
15. Equitable Remedies. The parties hereto agree that irreparable harm would occur in
the event that any of the agreements and provisions of this Agreement were not performed fully by
the parties hereto in accordance with their specific terms or conditions or were otherwise
breached, and that money damages are an inadequate remedy for breach of this Agreement because of
the difficulty of ascertaining and quantifying the amount of damage that will be suffered by the
parties hereto in the event that this Agreement is not performed in accordance with its terms or
conditions or is otherwise breached. It is accordingly hereby agreed that the parties hereto shall
be entitled to an injunction or injunctions or other equitable relief to restrain, enjoin and
prevent breaches of this Agreement by the other parties and to enforce specifically such terms and
provisions of this Agreement, such remedy being in addition to, and not in lieu of, any other
rights and remedies to which the other parties are entitled to at law or in equity. The Company
and the Consultant agree that the covenants set forth in this Agreement shall be enforced to the
fullest extent permitted by law. Accordingly if, in any judicial proceedings, a court shall
determine that such covenant is unenforceable for any reason, including, without limitation,
because it covers too extensive a geographical area or survives too long a period of time, then the
parties intend that such covenant shall be deemed to cover only such maximum
geographical area and maximum period of time, if applicable, and/or shall otherwise be deemed to be
limited in such manner, as will permit enforceability by such court. In the event that any one or
more of such covenants shall, either by itself or together with other covenants be adjudged to go
beyond what is reasonable in all the circumstances for the protection of the interests of the
Company and its shareholders, but would be adjudged reasonable if any
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particular covenant or
covenants or parts thereof were deleted, restricted, or limited in a particular manner, then the
said covenants shall apply with such deletions, restrictions, or limitations, as the case may be.
The Company and the Consultant further agree that the covenants set forth in this Agreement are
reasonable in all circumstances for the protection of the legitimate interests of the Company and
its shareholders.
16. Miscellaneous.
(a) In case any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
(b) The titles of the sections and subsections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.
(c) The use of any gender in this Agreement shall be deemed to include the other genders, and
the use of the singular in this Agreement shall be deemed to include the plural (and vice versa),
wherever appropriate.
(d) This Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together constitute one instrument.
(e) Counterparts of this Agreement (or applicable signature pages hereof) that are manually
signed and delivered by facsimile transmission shall be deemed to constitute signed original
counterparts hereof and shall bind the parties signing and delivering in such manner.
(f) Each of the parties has received independent legal advice from legal counsel of his or its
choice with respect to this Agreement and its terms. The terms of this Agreement are the result of
mutual negotiations between the parties, and the provisions of this Agreement shall be interpreted
and construed in accordance with their fair meanings, and not strictly for or against either party,
regardless of which party may have drafted this Agreement or any specific provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| COMPANY | CONSULTANT | |||||
| WQN, INC. | ||||||
By:
|
/s/ B. Xxxxxxx Xxxxx
|
/s/ Xxxx Xxxxxxxx
|
||||
| Title: CEO | ||||||
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