EXHIBIT 4.9
CONSULTANTCY AGREEMENT
This Consultancy Agreement, made as of the 27th day of January, 2004, by
and between FONEFRIEND, INC, a Delaware corporation with offices at 0000 Xxxxx
Xxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxxxxx 00000 (the "Company") and Xxxxxx
Xxxxxxxxx, a citizen of Germany who resides at Xxxxxxxxxxx. 00, 00000 Xxxxxx,
Xxxxxxx (the "Consultant")
WITNESSTH
WHEREAS, the Company desires to retain Consultant to render consulting
services, including services relating to implementing a media marketing campaign
in Europe and developing contacts for strategic relationships with the
realization of value for the Company and it's stockholders; and
WHEREAS, the Company has limited cash resources and the Consultant is
willing to perform such consulting services in consideration for stock and on
the terms and conditions herein contained; and
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable considerations, the parties agree as follows:
1. ENGAGEMENT
The Company hereby engages Consultant and Consultant hereby accepts such
engagement as a consultant to render the consulting services set forth below, as
requested by the Company, and in furtherance of the business goals of the
Company. Further, the Consultant hereby warrants and represents to the Company
that it will adhere to and fully comply with all applicable ordinances and
securities laws.
2. CONSULTANT DUTIES
Consultant shall, at the request of the Company, provide business
management, marketing and financial consultation services. Such services shall
include:
a. Marketing - Consultant will assist the Company in developing and
implementing its media marketing campaign in Europe, including media production
and placement of advertisements featuring the Company's product on television
commercials, cable TV, radio and print.
b. Strategic Transactions - Consultant will assist the Company in
evaluating the advisability of entering into acquisitions, strategic alliances
and joint ventures with entities that can further the Company's business
objectives on a global scale.
c. Financial Relations - Consultant will assist the Company in listing
its stock on one or more stock exchanges in Europe and will assist in developing
relationships with European investment bankers and stock brokerage firms.
3. TERM
In consideration of the compensation paid upon the date of this Agreement,
Consultant warrants that it shall faithfully perform its services, in a diligent
and timely fashion, commencing on the date hereof and ending on July 31, 2004.
Said term of approximately six (6) full calendar months shall constitute the
initial term of this Agreement. Thereafter, unless renewed at least thirty (30)
days prior to the end of said term, this Agreement shall terminate, with no
further force or effect, and only those provisions excepted under Section 13,
below, shall survive.
4. COMPENSATION
In consideration of Consultant's willingness to enter into this Agreement
and to perform the services referenced in Section 2 above, the Company shall pay
Consultant a fixed, one-time fee in the amount of Twenty Four Thousand Dollars
($24,000.00), which shall be due and payable upon the execution of this
Agreement. In lieu of said cash fee, Consultant agrees to accept three hundred
thousand (300,000) shares of the Company's common stock. Company agrees to
register Consultant's stock under its proposed registration statement on form
S-3.
5. ACTIVITIES
Throughout the term of this Agreement, Consultant will act in the best
interests of the Company and will provide the designated representatives of the
Company with verbal or written reports, as reasonable requested, concerning his
activities.
6. THIRD PARTIES
The Company acknowledges that, in connection with its engagement hereunder,
Consultant may introduce the Company to third parties who may transact business
with the Company and/or assist Consultant in providing consulting services to
the Company hereunder.
7. CONFIDENTIAL INFORMATION
Consultant acknowledges that any and all confidential knowledge or
information concerning the Company and its affairs obtained by it, its
principals, employees and/or contractors in the course of its engagement
hereunder will be inviolate by it and that it will conceal the same from any and
all other persons and entities, including, but not limited to, competitors of
the Company and that it will not impart any such knowledge to anyone whosoever,
nor will Consultant use any confidential information or knowledge gained through
his services hereunder for his own economic benefit whatsoever, during the term
of twelve months from the date of termination hereof.
8. INDEMNIFICATION
The Company shall hold harmless and indemnify Consultant from and against
any and all damages, losses, liabilities, obligations, fees, costs and expenses,
including but not limited to reasonable attorney's fees, resulting from, or
incurred in connection with claims made against Consultant relating to the
performance of its duties hereunder. Notwithstanding the foregoing, the Company
shall have no obligation to hold harmless and indemnify Consultant from claims
made against Consultant, which arise out of, or in connection with, Consultant's
gross negligence or failure to adhere to any laws in the performance of its
duties.
Consultant hereby agrees to indemnify and hold the Company, its agents,
officers, directors, employees and consultants, collectively and individually,
harmless from and against all claims, damages, suits, loss, liabilities and
expenses incurred by the Company (including fees and disbursements of counsel)
which are related to or arise out of actions taken or omitted to be taken by the
Consultant, or any of its affiliates or agents, in connection with the
Consultant's activities under this Agreement.
9. ASSIGNMENT
The Company shall have the right to assign or delegate this Agreement or
any rights or obligations created hereby. The Consultant may not assign any of
its duties or obligations provided for hereunder without the express written
consent of the Company in advance.
10. ENTIRE AGREEMENT; MODIFICATION
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof. No promises, guarantees, inducements or
agreement, whether oral or written, express or implied have been made or shall
be of any force or effect other than as contained in this Agreement. This
Agreement can only be modified or changed in writing signed by both parties.
11. BENEFIT OF AGREEMENT
This Agreement shall inure to the benefit and be binding upon the parties
hereto and their respective legal representatives, administrators, executors,
successors, assigns, subsidiaries and affiliates.
12. GOVERNING LAW; CONSTRUCTION
In the event of any dispute regarding this Agreement, the parties agree
that all matters relating to this Agreement shall be governed by, construed
under and enforced in accordance with the laws of the Country of Germany without
regard to its principles of conflicts of laws and irrespective of the fact that
one or more of the parties is now domiciled in another territory. Further, the
language used in this Agreement shall be deemed to be language chosen by both
parties hereto to express their mutual intent, and no rule of strict
construction against either party shall apply to any terms or conditions hereof.
13. SURVIVAL
The provisions contained in Sections 7, 8, and this Section 13, shall
survive the termination of this Agreement.
14. CAPTIONS
The captions by which the sections and subsections of this Agreement are
identified are for convenience only, and shall have no effect whatsoever upon
its interpretation.
15. COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement may be effective upon the execution and
delivery by any party of facsimile copies of signature pages hereto duly
executed by such party; provided, however, that any party delivering a facsimile
signature page, covenants and agrees to deliver promptly thereafter at least one
(1) original copy to the other party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date written below.
THE COMPANY:
FONEFRIEND, INC.
A DELAWARE CORPORATION
WITNESS: /S/ XXXX X. XXXXXXXXX BY: /S/ XXXXXXXX XXXXXX
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XXXXXXXX XXXXXX, PRESIDENT
THE CONSULTANT:
XXXXXX XXXXXXXXX,
AN INDIVIDUAL
WITNESS: /S/ XXXX X. XXXXXXXXX BY: /S/ XXXXXX XXXXXXXXX
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XXXXXX XXXXXXXXX
