CANEUM, INC. CONSULTING AGREEMENT
Exhibit 99.2
PRIVATE AND CONFIDENTIAL
CANEUM, INC.
This Consulting Agreement (“Agreement”) is entered into effective as December 31, 2006 (the
“Effective Date”), by and between Caneum, Inc. United States (“Caneum”) and a Singapore entity to
be formed by and on behalf of Xxxxxx Xxxxxx (“Consultant”).
Caneum desires to retain Consultant as an independent contractor to perform consulting
services for Caneum, and Consultant is willing to perform such services, on the terms described
below. In consideration of the mutual promises contained herein, the parties agree as follows:
1. Term. The initial term of this Agreement shall begin on the Effective Date and be
for a period up to and including 31st December, 2008 (the “Initial Term”), unless it is
terminated earlier as provided herein. Beginning on the last date of the Initial Term, and on each
anniversary thereafter, unless it is terminated earlier as provided herein or Caneum delivers
written notice to the Contractor of its intention not to extend the Agreement at least ninety (90)
days before such anniversary date, the term of this Agreement shall automatically be extended for
one additional year. The restrictive covenants in Section 9 hereof shall survive the termination
of this Agreement.
2. Independent Contractor; Benefits.
2.1 Independent Contractor. It is the express intention of Caneum and Consultant that
Consultant perform the Services (as defined below) as an independent contractor to Caneum. Nothing
in this Agreement shall in any way be construed to constitute Consultant as an agent, employee or
representative of Caneum. Without limiting the generality of the foregoing, Consultant is not
authorized to bind Caneum to any liability or obligation or to represent that Consultant has any
such authority. Consultant agrees to furnish all tools and materials necessary to accomplish this
Agreement and shall incur all expenses associated with performance, except as expressly provided
herein Consultant shall be responsible for payment of its own taxes on income from this
Agreement.
2.2 Benefits. Caneum and Consultant agree that Consultant will not receive any
Caneum-sponsored employee benefits from Caneum.
3. Confidentiality.
3.1 Definition. “Confidential Information” means any non-public confidential
information that relates to the actual or anticipated business or research and development of
Caneum, technical data, trade secrets or know-how, including, but not limited to, research, product
plans or other information regarding Caneum’s products or
services and markets therefor, customer lists and customers with whom Consultant became
acquainted directly as a result of providing Services during the term of this
PRIVATE AND CONFIDENTIAL
Agreement), software,
developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware
configuration information, marketing, finances or other business information. Confidential
Information does not include information that (i) is known to Consultant at the time of disclosure
to Consultant by Caneum as evidenced by written records of Consultant, (ii) has become publicly
known and made generally available through no wrongful act of Consultant or (iii) has been
rightfully received by Consultant from a third party who is authorized to make such disclosure.
3.2 Nonuse and Nondisclosure. Consultant will not, during or subsequent to the term
of this Agreement, (i) use the Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of Caneum or (ii) disclose the Confidential Information to
any third party without the consent of Caneum. Consultant agrees that all Confidential Information
will remain the sole property of Caneum. Consultant also agrees to take reasonable precautions to
prevent unauthorized disclosure of such Confidential Information.
3.3 Former Client Confidential Information. Consultant agrees that Consultant will
not, during the term of this Agreement, improperly use or disclose to Caneum any proprietary
information or trade secrets of any former or current employer of Consultant or other person or
entity with which Consultant has an agreement or duty to keep in confidence information acquired by
Consultant, if any. Consultant also agrees that Consultant will not bring onto Caneum’s premises
any unpublished document or proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or entity.
3.4 Third Party Confidential Information. Consultant recognizes that Caneum has
received and in the future will receive from third parties their confidential or proprietary
information subject to a duty on Caneum’s part to maintain the confidentiality of such information
and to use it only for certain limited purposes. Consultant agrees that, during the term of this
Agreement and thereafter, Consultant owes Caneum and such third parties a duty to hold all such
confidential or proprietary information in the strictest confidence and not to disclose it to any
person, firm or corporation or to use it except as necessary in carrying out the Services for
Caneum consistent with Caneum’s agreement with such third party.
3.5 Return of Materials. Upon the termination of this Agreement, or upon Company’s
earlier request, Consultant will deliver to Caneum all of Caneum’s property, including but not
limited to all electronically stored information and passwords to access such property, or
Confidential Information that Consultant may have in Consultant’s possession or control; provided,
however, that Consultant may retain a copy of such materials for archival purposes.
4. Conflicting Obligations. Consultant certifies that Consultant has no outstanding
agreement or obligation that would preclude Consultant from complying with the provisions of this
Agreement. Consultant will not enter into any such prohibitive
agreement during the term of this Agreement. Consultant’s violation of this Section 4 will be
considered a material breach under this Agreement. Caneum realizes that the
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PRIVATE AND CONFIDENTIAL
Xx. Xxxxxx has a
Consultancy Agreement with Xoom Corporation on which he will occasionally be required to work. Such
work will only be undertaken outside normal work times in India and will not reduce his commitment
to Caneum.
5. Reports. Consultant also agrees that Consultant will, from time to time during the
term of this Agreement or any extension thereof, keep Caneum advised as to Consultant’s progress in
performing the Services under this Agreement. Consultant further agrees that Consultant will, as
requested by Caneum, prepare written reports with respect to such progress. Caneum and Consultant
agree that the time required to prepare such written reports will be considered time devoted to the
performance of the Services.
6. Location. Consultant shall provide Services at Consultant’s offices, at Caneum’s
offices, or at such other places as may be mutually agreed upon by Company and Consultant.
7. Services. During the term of this Agreement, Consultant shall, at the request of
the President, the Chief Executive Officer, or the Board of Caneum, render consulting and advisory
services to Caneum relating to strategic planning, corporate and product development, and general
business and financial matters of Caneum or its subsidiaries, including Continuum (the “Services”).
Consultant shall not be required to devote a specific number of hours under this Agreement, but the
parties shall mutually determine reasonable compliance with the obligations of Consultant
hereunder. Caneum agrees and acknowledges that Consultant, during the term of this Agreement and
thereafter, may be engaged in other business endeavors and employed both in the same and other
industries, both competitive and non-competitive with Caneum, that will require the time, ability
and attention of Consultant; however, Consultant agrees to devote its best efforts to performing
well all duties that Caneum may reasonably assign to Consultant from time to time during the term
of this Agreement; provide further, that Consultant shall not be required to provide Services in
connection with the offer or sale of securities of Caneum in a capital-raising transaction, or to
provide services to directly or indirectly promote or maintain a market for the securities of
Caneum.
8. Compensation.
8.1 The Consultant’s monthly fee shall be $36,000 per year (the “Base Fee”) payable $3,000 per
month, which fee shall secure Consultant’s obligation to provide Services hereunder. In addition,
Caneum will cause to be provided to Consultant housing and car perquisites equivalent to prior
perquisites previously provided by Caneum in India, to its consultants and employees. At
no time during the term of this Agreement shall the Consultant’s base salary be decreased
8.2 Signing Bonuses
(i) Options. Upon execution of this Agreement by the parties hereto, Caneum shall
grant to Consultant ten-year options to purchase 100,000 shares of
common stock of Caneum pursuant to Caneum’s 2002 Stock Option/Stock Issuance Plan (the “Plan”), a
copy of which is attached hereto and incorporated herein, subject to
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PRIVATE AND CONFIDENTIAL
vesting at the rate of 1/4 of
the granted options after one year and 1/48th of the granted options per month thereafter.
(ii) Stock. Upon execution of this Agreement by the parties hereto, Caneum shall
issue to Consultant 25,735 shares of common stock of Caneum as a sign on bonus, of which 4,963 are
hereby authorized and directed by Consultant to be issued and delivered to Saffron Capital Merchant
Partners LLC (the “Finder”) to satisfy Consultant’s obligation under the letter agreement dated
January 16, 2006, with the Finder (the “Finder’s Agreement”); provided that prior to delivery of
such shares by Caneum, Consultant and Finder shall execute and deliver a standard investor
representation form evidencing compliance with U.S. securities laws.
8.3 Incentive Payments. Caneum shall grant to the Consultant an incentive bonus of 66,177
shares of common stock of Caneum on the first anniversary of the Effective Date of this Agreement
(the “First Contingent Incentive Payment”), of which 3,308 shares are hereby authorized and
directed by Consultant to be issued and delivered to Finder, and 55,147 shares of common stock of
Caneum on the second anniversary of the Effective Date of this Agreement (the “Second Contingent
Incentive Payment”), of which 2,757 shares are hereby authorized and directed by Consultant to be
issued and delivered to Finder, which incentive bonuses shall be subject to the following terms and
conditions:
(i) Delivery of Incentive Payments. The First Contingent Incentive Payment shall be
delivered immediately upon calculation of any adjustment pursuant to §8.3(ii) or (iii) below, but
in no event later than thirty days following the first anniversary of the Effective Date. The
Second Contingent Incentive Payment shall be delivered immediately upon calculation of any
adjustment pursuant to §8.3(ii) or (iii) below, but in no event later than thirty days following
the second anniversary of the Effective Date. All issuances of the shares of common stock pursuant
to this section shall be made in compliance with applicable exemptions from the registration
requirements under U.S. Securities Laws and qualification of the issuances under applicable foreign
Securities Laws.
(ii) Adjustment to Incentive Payments Based upon Continuum Revenues. If Continuum
Systems Private Limited, a subsidiary of Caneum (hereinafter “Continuum”), fails to generate gross
revenue for the twelve-month period ending December 31, 2007 (the “First Year Period”) or for the
twelve-month period ending December 31, 2008 (the “Second Year Period”) equal to or greater than
the gross revenue generated by Continuum during the twelve-month period ended December 31, 2006
(the “Base Period”), the number of shares of common stock of Caneum to be delivered to the
Consultant for the First and Second Contingent Incentive Payments shall be proportionately reduced,
whereby the number of shares to be issued to the Consultant for the First or Second Contingent
Incentive Payment shall be multiplied by a factor, the numerator of which is the gross revenue for
the First Year Period or the Second Year
Period, as applicable, and the denominator of which is the gross revenue for the Base Period. The
amount of “gross revenue” for purposes of this calculation shall include
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PRIVATE AND CONFIDENTIAL
revenue generated from all
existing and past Continuum customers as set forth in Annex A, attached hereto and incorporated
herein (the “Customer List”), whether such revenue was received by Continuum (or the Singapore
entity or entities organized to receive revenue generated by Continuum) and any Caneum customer
projects completed by Continuum after December 31, 2006. On or before the close of each calendar
quarter after the Effective Date through the date of the Second Contingent Incentive Payment, the
Consultant shall cause Continuum to submit to Caneum a list of any new customers developed by
Continuum to be added to the Customer List, which addition shall be effective on the first day of
the calendar quarter following such submission. The applicable twelve-month gross revenue amount
for any period relevant hereto shall be determined using U.S. Generally Accepted Accounting
Principles and shall be delivered to Caneum within thirty days following the end of the Base
Period, the First Year Period, and the Second Year Period, respectively. If following the audit of
the financial statements of Continuum (or the Singapore entity or entities), any of Continuum, the
Consultant, or Caneum reasonably determines that these unaudited amounts are incorrect, the
calculations made pursuant to this paragraph shall be adjusted to reflect the applicable audited
amount. If the adjusted audited amounts result in a fewer number of shares to be delivered to the
Consultant, Consultant shall immediately return to Caneum the number of shares to reflect the
revised number. If the adjusted audited amounts result in a greater number of shares to be
delivered to the Consultant, Caneum shall immediately instruct its transfer agent to issue
additional shares to reflect the revised number. If there is a downward adjustment of the
Consultant’s Incentive Payments, the Finder’s stock entitlements shall be proportionately reduced.
(iii) Adjustment to Incentive Payments upon Termination of Engagement. If this
Agreement is terminated by Caneum for Cause, as defined herein, before the date of the First or
Second Contingent Incentive Payment, any unpaid Incentive Payment or Payments shall be forfeited by
the Consultant and Caneum shall have no obligation to issue or deliver to Consultant any of shares
of Caneum common stock for any Contingent Incentive Payment payable subsequent to such termination.
(iv) Change of Control Transaction. In the event that Caneum or Continuum is subject
to a Change of Control, as defined below, after the date of this Agreement and prior to the date of
the First or Second Contingent Incentive Payment, and the surviving entity does not assume this
Agreements, then, subject to any adjustments made pursuant to this §8.3, any unpaid Incentive
Payment shall be paid to the Consultant three days prior to the applicable Change of Control. For
purposes of this provision, “Change of Control” shall mean: (a) a sale or other disposition of all
or any significant portion of the assets of Caneum or Continuum (other than any such sale or other
disposition to Caneum or an Affiliate of Caneum); (b) a merger or consolidation in which Caneum is
not the surviving entity and in which the shareholders of Caneum immediately prior to such
consolidation or merger own less than fifty percent (50%) of the surviving entity’s voting power
immediately after the transaction; (c) a reverse merger in which Caneum is the surviving entity but
the shares of Caneum’s capital stock outstanding immediately preceding the merger are converted by
virtue of the merger into
other property, whether in the form of securities, cash or otherwise, and in which the stockholders
of Caneum immediately prior to such reverse merger own less than fifty percent (50%) of Caneum’s
voting power immediately after the transaction; (d) an acquisition by any person, entity or group
(excluding any entity controlled by Caneum) of securities of Caneum representing at least fifty
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PRIVATE AND CONFIDENTIAL
percent (50%) of the voting power entitled to vote in the election of directors of Caneum; (e) any
transaction pursuant to which Continuum’s capital stock ceases to be majority owned, directly or
indirectly, by Caneum (other than any such transaction in which Continuum is merged with and into
Caneum or an Affiliate of Caneum); and (f) any liquidation, dissolution or winding up of Caneum or
Continuum (other than any such liquidation, dissolution or winding up of Continuum in connection
with Continuum’s merger with and into Caneum or an Affiliate of Caneum).
(v) Arbitration of Disputes Relating to the Incentive Payments. Any
controversy, dispute or claim arising out of or relating to this §8.3 or breach thereof shall
first be settled through good faith negotiation. If the dispute cannot be settled through
negotiation, the parties agree to attempt in good faith to settle the dispute by mediation
administered by JAMS. If the parties are unsuccessful at resolving the dispute through mediation,
the parties agree to binding arbitration administered by JAMS pursuant to its Comprehensive
Arbitration Rules & Procedures. Any such arbitration shall be held in Orange County, California.
The arbitrator shall determine how all expenses relating to the arbitration shall be paid,
including the respective expenses of each party, the fees of the arbitrator and the administrative
fee of JAMS. The arbitrator shall set a limited time period and establish procedures designed to
reduce the cost and time for discovery while allowing Buyer and the Seller an opportunity, adequate
in the sole judgment of the arbitrator to discover relevant information from the opposing Parties
about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit
discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to
the same extent as a competent court of law or equity, should the arbitrator determine that
discovery was sought without substantial justification or that discovery was refused or objected to
without substantial justification. The decision of the arbitrator as to the validity and amount of
any indemnification claim or as to any other matter under this §8.3 shall be final, binding and
conclusive upon the parties. All such decisions shall be written and shall be supported by written
findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded
by the arbitrator. All payments required by the arbitrator shall be made within thirty days after
the decision of the arbitrator is rendered. Judgment upon any award rendered by the arbitrator may
be entered in any court having jurisdiction. Caneum shall pay the reasonable travel costs and
legal fees for the Contractor to attend the arbitration hearing or hearings pursuant to this §8.3
in the event that Caneum or Caneum shall refuse to issue or deliver the shares of common stock
pursuant to this §8.3.
9. Termination.
9.1 Survival. Section 3 (Confidentiality), Section 8.2 and 8.3 (Signing Bonuses and
Incentive Payments), Section 10 (Mitigation and Offset), Section 12 (Legal Expenses), and Section
13 (Indemnification) will survive termination of this Agreement.
9.2 Termination Due To Death. The Consultant’s service and this Agreement shall
terminate immediately upon the death of Xxxxxx Xxxxxx. If the
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PRIVATE AND CONFIDENTIAL
Consultant’s service is terminated
due to his death, Consultant shall be entitled to (i) payment of any due but unpaid portion of the
Base Fee through the date of such termination and (ii) a pro rata number of the total shares
issuable pursuant to §8.3 above based upon the percentage of the Initial Term served prior to the
date of such termination (for example, if Consultant serves 120 days of the Initial Term,
Consultant would receive 120/730ths, or approximately 16%, of the total shares issuable under §8.3,
or if Consultant serves 420 days of the Initial Term, Consultant would receive all of the shares
issuable in the First Contingent Incentive Payment and 55/365ths, or approximately 15%, of the
shares issuable in the Second Contingent Incentive Payment) and (iii) exercise the options pursuant
to clause 8.2 hereof within 12 months thereafter.
9.3 Termination Due To Disability. Caneum may terminate the Consultant’s service at
any time if Xxxxxx Xxxxxx becomes disabled, upon written notice by Caneum to the Consultant. For
all purposes under this Agreement, “Disability” shall mean that Xx. Xxxxxx, at the time the notice
is given, has been unable to perform his duties under this Agreement for a period of not less than
ninety (90) days during any 180-day period as a result of the Consultant’s incapacity due to
physical or mental illness. If the Consultant’s service is terminated due to his disability,
Consultant shall be entitled to (i) payment of any due but unpaid portion of the Base Fee through
the date of such termination and (ii) a pro rata number of the total shares issuable pursuant to
§8.3 above based upon the percentage of the Initial Term served prior to the date of such
termination.
9.4 Termination For Cause.
Caneum may terminate the Consultant’s Services at any time for Cause, provided that Caneum
gives written notice of termination to the Consultant as set forth below. If the Consultant’s
service is terminated for Cause, as defined below, Consultant shall be entitled to payment of any
due but unpaid portion of the Base Fee through the date of such termination. For purposes of this
Agreement, a termination for “Cause” shall mean: (1) the final conviction of the Consultant or Xx.
Xxxxxx of, or the entry of a plea of guilty or nolo contendere by the Consultant or Xx. Xxxxxx to,
any felony involving moral turpitude; (2) the final conviction of the Consultant or Xx. Xxxxxx of,
or the entry of a plea of guilty or nolo contendere by the Consultant or Xx. Xxxxxx to any fraud,
misappropriation or embezzlement by the Consultant; (3) the Consultant’s willful failure or gross
misconduct in the performance of Services; or (4) the breach by the Consultant of any material term
of this Agreement.
If Caneum exercises its right to terminate the Consultant for Cause, Caneum shall: (1) give
the Consultant written notice of termination at least thirty (30)
days before the date of such termination specifying in detail the conduct constituting such
Cause, and (2) deliver to the Consultant a copy of a resolution duly adopted by a majority of the
entire membership of the Board, excluding interested directors, after reasonable notice to the
Consultant and an opportunity for the Consultant to be heard in person by members of the Board,
finding that the Consultant has engaged in such conduct.
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PRIVATE AND CONFIDENTIAL
9.5 Voluntary Termination. If the Consultant voluntarily terminates its service on
its own initiative for reasons other than Xx. Xxxxxx’x death, disability, or constructive
termination without cause, Consultant shall be entitled to (i) payment of any due but unpaid
portion of the Base Fee through the date of such termination and (ii) a pro rata number of the
total shares issuable pursuant to §8.3 above based upon the percentage of the Initial Term served
prior to the date of such termination. Consultant may voluntarily resign its service and terminate
the Agreement at any time by providing fifteen (15) days notice to Caneum.
9.6 Constructive Termination Without Cause. In case of Constructive Termination
without Cause, the Consultant shall be entitled to (i) payment of any due but unpaid portion of the
Base Fee through the date of such termination and (ii) a pro rata number of the total shares
issuable pursuant to §8.3 above based upon the percentage of the Initial Term served prior to the
date of such termination.
For purposes of this Agreement, “Constructive Termination Without Cause” shall mean a
termination of the Consultant at its own initiative following the occurrence, without the
Consultant’s prior written consent, of the following event not on account of Cause:
(1) the failure of Caneum to obtain an assumption in writing of its obligation to
perform this Agreement by any successor to all or substantially all of the assets
of Caneum within forty-five (45) days after a merger, consolidation, sale or
similar transaction in accordance with clause 13 hereof.
10. Mitigation And Offset. If the Consultant’s service is terminated during the term
of this Agreement pursuant to the provisions of Section 9.6 (Constructive Termination without
Cause), above, the Consultant shall be under no duty or obligation to seek or accept other
employment or services, and no payment or benefits of any kind due Consultant under this Agreement
shall be reduced, suspended or in any way offset by any subsequent employment or services. The
obligation of Caneum to make the payments provided for in this Agreement shall not be affected by
any circumstance including, by way of example rather than limitation, any set-off, counterclaim,
recoupment, defense, or other right that Caneum may assert, or due to any other employment or
source of income obtained by the Consultant.
11. Entitlement To Other Benefits. Except as expressly provided herein, this
Agreement shall not be construed as limiting in any way any rights or benefits the
Consultant, Consultant’s spouse or domestic partner, dependents or beneficiaries may have
pursuant to any other benefits plans or programs.
12. Indemnification. Caneum agrees that if the Consultant is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative, or investigative (a “Proceeding”), by reason of the fact that the Consultant is or
was a consultant, agent or representative of Caneum, or is or was serving at the request of Caneum
as a member, consultant, agent or representative of another
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PRIVATE AND CONFIDENTIAL
corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including service with respect to
benefit plans, whether or not the basis of such Proceeding is the Consultant’s alleged action in an
official capacity while serving as a member, consultant, representative or agent, the Consultant
shall be Indemnified and held harmless by Caneum to the fullest extent permitted or authorized by
Caneum’s articles of incorporation and bylaws. To the extent consistent with the foregoing, this
obligation to indemnify the Consultant and hold Consultant harmless shall continue even if he has
ceased to be a member, consultant , representative or agent of Caneum or other such entity
described above, and shall inure to the benefit of the Consultant’s successors. Caneum shall
advance to the Consultant all reasonable costs and expenses incurred by Consultant in connection
with a Proceeding within ten (10) days after receipt by Caneum of a written request for such
advance. Such request shall include an undertaking by the Consultant to repay the amount of such
advance if it shall ultimately be determined by a final court of law having jurisdiction, that the
Consultant is not entitled to be indemnified against such costs and expenses.
Neither the failure of Caneum (including its Board, independent legal counsel or stockholders)
to have made a determination before such Proceeding concerning payment of amounts claimed by the
Consultant under the paragraph above that indemnification of the Consultant is proper because
Consultant has met the applicable standards of conduct, nor a determination by Caneum (including
its Board, independent legal counsel or stockholders) that the Consultant has not met such
applicable standards of conduct, shall create a presumption that the Consultant has not met the
applicable standards of conduct.
Consultant understands and acknowledges that Caneum may be required in the future to undertake
with the Securities and Exchange Commission to submit in certain circumstances the question of
indemnification to a court for a determination of Caneum’s right under public policy to indemnify
Consultant.
13. Assignability And Binding Nature. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors, heirs, legal representatives (in the
case of the Consultant) and permitted assigns. No rights or obligations may be assigned or
transferred by Caneum except that such rights or obligations may be assigned or transferred
pursuant to a merger or consolidation in which Caneum is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of Caneum, provided that the assignee or
transferee is the successor to all or substantially all of the assets of Caneum and such assignee
or transferee assumes the liabilities, obligations, and duties of Caneum, as contained in this
Agreement, either contractually or as a matter of law and provided that Consultant agrees to such
assignment. Caneum further agrees, that in the event of a sale of assets or liquidation as
described in the foregoing sentence, it shall take whatever action it is legally entitled to take
in order to Cause the assignee or transferee to expressly assume the liabilities, obligations, and
duties of Caneum under this Agreement. Notwithstanding any such assignment, Caneum shall not be
relieved from liability under this Agreement. No rights or obligations of the Consultant under this
Agreement may be assigned or transferred by the Consultant other than Consultant’s right to receive
compensation and benefits, provided such assignment or transfer is otherwise permitted by law.
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14. Notices. All notices required or permitted hereunder shall be in writing and shall
be deemed effective: (1) upon personal delivery; (2) upon deposit with the United States Postal
Service, by registered or certified mail, postage prepaid; or (3) in the case of delivery by
nationally recognized overnight delivery service, when delivered, addressed as follows:
If to Caneum, to:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
If to the Consultant, to:
or to such other address or addresses as either party shall designate to the other in writing from
time to time by like notice.
15. Amendment. This agreement may be amended or modified only by a written instrument
executed by both Caneum and the Consultant.
16. Pronouns. Whenever the context might require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and
pronouns shall include the plural, and vice versa.
17. Captions. The captions appearing herein are for convenience of reference only and
in no way define, limit or affect the scope or substance of any section hereof.
18. Time. All reference herein to periods of days are to calendar days, unless
expressly provided otherwise. Where the time period specified herein would end on a weekend or
holiday, the time period shall be deemed to end on the next business day.
19. Entire Agreement. This Agreement constitutes the entire agreement between Caneum
and the Consultant and supersedes all prior agreements and understandings, whether written or oral
relating to the subject matter hereof.
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20. Severability. In case any provision hereof shall be held by a court or arbitrator
with jurisdiction over Caneum or the Consultant to be invalid, illegal, or otherwise unenforceable,
such provision shall be restated to reflect as nearly as possible the original intentions of Caneum
and the Consultant in accordance with applicable law, and the validity, legality, and
enforceability of the remaining provisions shall in not way be affected or impaired thereby.
21. Waiver. No delays or omission by Caneum or the Consultant in exercising any right
hereunder shall operate as a waiver of that or any other right. A waiver or consent given by
Caneum or the Consultant or any one occasion shall be effective only in that instance and shall not
be construed as a bar or waiver of any right on any other occasion.
22. Arbitration. Except as provided in 8.3, any controversy, dispute or claim arising
out of or relating to this Agreement or breach thereof shall first be settled through good faith
negotiation. If the dispute cannot be settled through negotiation within [30] days of the
controversy, dispute or claim arising, the parties agree to attempt in good faith to settle the
dispute by mediation administered by JAMS upon a reference being made within [ 15 ] days of the
expiry of the aforesaid period of [30] days. If the parties are unsuccessful at resolving the
dispute through mediation within [ 45 ] days of reference of the dispute to mediation, the parties
agree to binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules &
Procedures. Any such arbitration shall be held in Orange County, California. The arbitrator shall
determine how all expenses relating to the arbitration shall be paid, including the respective
expenses of each party, the fees of the arbitrator and the administrative fee of JAMS. The
arbitrator shall set a limited time period and establish procedures designed to reduce the cost and
time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the
arbitrator to discover relevant information from the opposing Parties about the subject matter of
the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have
the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a
competent court of law or equity, should the arbitrator determine that discovery was sought without
substantial justification or that discovery was refused or objected to without substantial
justification. The decision of the arbitrator as to the validity and amount of any indemnification
claim in any Indemnification Demand or as to any other matter under this Agreement shall be subject
to the limitations set forth in this Agreement and final, binding and conclusive upon the Parties.
All such decisions shall be written and shall be supported by written findings of fact and
conclusions which shall set forth the award, judgment, decree or
order awarded by the arbitrator. All payments required by the arbitrator shall be made within
thirty days after the decision of the arbitrator is rendered. Judgment upon any award rendered by
the arbitrator may be entered in any court having jurisdiction.
23. Governing Law/Jurisdiction. This Agreement shall be construed,
interpreted, and enforced in accordance with the laws of California, U.S.A, and shall be subject to
the jurisdiction of the courts at Orange County.
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PRIVATE AND CONFIDENTIAL
24. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of both Caneum and the Contractor and their respective successors, heirs, legal
representatives.
25. Withholding. Caneum may make any appropriate arrangements to deduct from all
benefits provided hereunder any taxes reasonably determined to be required to be withheld by any
government or government agency. The Consultant shall bear all taxes on benefits provided
hereunder to the extent that no taxes are withheld, irrespective of whether withholding is
required.
26. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument.
27. Full Knowledge. By their signatures, the parties acknowledge that they
have carefully read and fully understand the terms and conditions of this Agreement, that each
party has had the benefit of separate counsel, or has been advised to obtain separate counsel, and
that each party has freely agreed to be bound by the terms and conditions of this Agreement.
IN WITNESS WHEREOF, Company and the Consultant have executed this Agreement effective as of
the day and year first written above.
| CANEUM: | CANEUM, INC. | |||||||
| Date: December 30th, 2006 | By: | /s/ Suki Mudan | ||||||
| Name: Suki Mudan | ||||||||
| Title: President | ||||||||
| CONSULTANT: | ||||||||
Date:
|
, 2006 | |||||||
| Xxxxxx Xxxxxx For Singapore Entity Promoter |
||||||||
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