CONSULTING AGREEMENT - GARY POST
Exhibit
4.8
CONSULTING
AGREEMENT - XXXX POST
This
Consulting Agreement (this "Agreement") is made as of May 3, 2007, by and
between VoIP, Inc with offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx
Xxxxxxx, XX 00000 (the "Company'), and XXXX POST an individual ("Consultant")
with respect to the following facts:
For
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Engagement.
The
Company hereby engages Consultant as a contractor and consultant to to assist
the Company in negotiating settlements of various litigation matters the Company
has recently been engaged in, and Consultant has agreed to provide these
services to the Company, subject to the terms and conditions described in this
Agreement. Consultant is not an investment adviser nor a broker dealer as
defined under federal or state law and will not provide any services requiring
registration as such.
2. Term.
The
term of this Agreement shall expire upon the one year anniversary from the
date
of this Agreement (the "Term"), provided, however, that either party may
terminate the engagement at any time upon thirty days' prior written notice.
The
Agreement may be terminated by the Company immediately upon notice in the case
of the commission of an act of actual fraud by Consultant in the course of
its
activities hereunder. The Agreement may be terminated by Consultant immediately
upon notice in the case of the commission of an act of actual fraud by the
Company.
3. Services.
The
services (the "Services") to be provided by Consultant shall consist of
negotiating with plaintiffs and the Company’s legal counsel as appropriate, with
the objective of reaching out-of-court settlements to the Company’s matters
being litigated.
4. Costs.
The
Company will be responsible for reasonable out of pocket expenses undertaken
in
respect of the Services, provided, however, all items of such expense in excess
of $200 shall be approved in advance by the Company.
5. Compensation
for Services.
For
continuing to provide the Services, the Company shall give the Consultant a
onetime fee of 550,000 shares of the Company’s common stock, par value $0.001
(the “Shares”). The Company shall file an S-8 Registration to register the
underlying common stock of the Shares by no later than May 10, 2007.
6. Independent
Contractor.
Consultant is an independent contractor responsible for compensation of its
agents, employees and representatives, as well as all applicable withholding
and
taxes (including unemployment compensation) and all worker's compensation
insurance.
7.
Non-Competition
and Non-Solicitation.
(a) Restricted
Business Activity.
Consultant hereby agrees that, during the Term, and for a period of one year
after the termination of this Agreement, for any reason, as the case may be,
Consultant shall not, directly or indirectly:
i. in
any
individual or representative capacity, whether as principal, agent, partner,
officer, director, employee, joint venturer, member of any business entity,
consultant, advisor or investor (except that Consultant shall have the right
hereunder to own up to 3% of one or more public companies having a class of
equity securities registered with the Securities and Exchange Commission under
the Securities Exchange Act of 1934 as amended) or otherwise, compete with
Company by performing services, activities, or duties similar or identical
to
those which Consultant performed during his employment with Company, in, or
for
any business entity or enterprise located or owning property within a
one-hundred mile radius of the Company, which engages in any of the Company's
businesses;
ii. disseminate
or make use of any valuable, unique, confidential, or proprietary information
of
Company (whether tangible or intangible and whether or not electronically kept
or stored), including that regarding or comprising actual/potential customer,
or
prospect, lists or identities, processes, procedures, drawings, designs,
manuals, business plans, pricing policies/schedules, vendors/contractor
sources/identities, financial information of customers or the Company, and
other
proprietary documents, materials, or information relating to the Company, its
businesses and activities, the manner in which the Company does business, all
of
which is valuable to the Company in conducting its business because the
information is kept confidential and is not generally known to the Company's
competitors or to the general public ("Confidential Information"). Confidential
Information does not include information generally known to third parties
unrelated to the Company or easily obtained from public
sources/records.
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To
the
extent that the Confidential Information rises to the level of a trade secret
under applicable law, Consultant acknowledges and agrees that he shall forever
protect and maintain the confidentiality of such trade secrets and shall not
disseminate or make use of any such trade secrets without the Company's prior
consent.
iii. in
any
manner induce, attempt to induce, or assist others to induce or attempt to
induce any of the Company's customers, or contacts with whom Consultant had
contact during the Term, to terminate, reduce or influence said individual's
or
entity's business or association with the Company, or do anything to interfere
with the relationship between the Company and any of the customers, or contacts
or persons or concerns dealing with the Company;
iv. without
the prior written consent of the Company:
(1) solicit
or hire away any person who was an employee of the Company at any time during
the Term; or
(2) employ,
in any capacity, any person who was an employee of the Company on the date
of
termination of Consultant's Term hereunder, or who was so employed at any time
during the one-year period immediately preceding such termination date;
or
v. without
the prior written consent of the Company, disseminate or make use of any ideas,
concepts or business plans relating to the Company which have been brought
before the Board or otherwise discussed by management of the
Company.
All
of
the activities described in subsections (i)-(v) of this Section 7(a) shall
be
included, whether jointly or singly, within the meaning of the term "Restricted
Business Activity" for the purposes of this Agreement.
Consultant
acknowledges that the restrictions placed upon Consultant by this Section 7
of
the Agreement are reasonable given the Consultant's position with the Company,
the geographic area in which the Company markets business, and the consideration
furnished in this Agreement. Further, Consultant acknowledges that the length
and scope of the covenants are reasonable, that the Company's business and
customers extend beyond that geographic area set forth in Section 7(a)(i),
and
that said geographic area is entirely reasonable. Consultant also agrees that
the provisions of this section are fair and necessary to protect the Company
and
its business interests and that such provisions do not preclude Consultant
from
utilizing unprotected information or from engaging in occupations in unrelated
fields or in a manner consistent with the requirements of this Agreement.
Finally, Consultant agrees that the scope of his experience and abilities are
such that the existence or enforcement of these provisions will not prevent
him
from earning an adequate livelihood.
B. Scope.
If the
scope of any restriction contained in Section 7(a) hereof is too broad to permit
enforcement of such restriction to its full extent, then such restriction shall
be enforced to the maximum extent permitted by law, and Consultant hereby
consents and agrees that such scope may be judicially modified accordingly
in
any proceedings brought to enforce such restrictions.
8. Default.
The
breach by Consultant of his obligations under Section 7(a) shall entitle the
Company to have recourse to any of the remedies set forth in Section
7(d).
9. Remedies.
i. In
the
event that Consultant shall be in breach of any of his obligations under Section
7(a) hereof, the Company shall have the right to terminate this Agreement
forthwith under Section 2 hereof, and all obligations of the Company to make
payments to Consultant under Sections 4 and 5 (except for expenses incurred
as
provided in Section 4 prior to such termination) shall cease forthwith in their
entirety and the Company shall have no further obligations to Consultant with
respect thereto.
ii. Consultant
acknowledges and agrees that the Company's remedy at law for any breach of
his
obligations under this Section 9 hereof may be inadequate, and agrees and
consents that (in addition to any other damages or relief available under
applicable law) temporary, preliminary, and/or permanent injunctive relief
may
be granted in any proceeding which may be brought to enforce any provision
of
this Section 9, without the necessity of proof of actual damage. Finally, the
Company shall be entitled to recover its reasonable attorneys' fees and costs
if
it prevails as to its claim against Consultant that Consultant breached Section
9 or any other section of this Agreement.
6. Return
of Company's Property.
Upon
expiration of this Agreement and/or termination of this Agreement (or at any
time upon request by the Company), Consultant will immediately return to the
Company all Company property (including but not limited to all documents,
electronic files/records, keys, records, computer disks, or other tangible
or
intangible things that may or may not relate to or otherwise constitute
Confidential Information (as herein defined) or trade secrets (as defined by
applicable law) that Consultant created, used, possessed, or maintained while
in
the employ of the Company, from whatever source. All ideas, concepts,
information, inventions developed by the Consultant during the Term are the
property of the Company. This provision does not apply to purely personal
documents of Consultant, but does apply to business calendars, Rolodexes,
customer lists, contact sheets, computer programs, disks, and their contents,
and like information that may contain some personal matters of
Consultant.
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7. Assignment.
The
rights and obligations of each party to this agreement may not be assigned
without the prior written consent of the other party.
8. Entire
Agreement.
This
Agreement contains the entire agreement of the Company and Consultant and
supersedes any prior agreements between them. This Agreement may not be modified
or extended except in writing signed by both parties.
9. Venue
of Law.
This
agreement shall be governed by and construed in accordance with California
law.
10. Arbitration
and Waiver of Jury Trial.
ANY
DISPUTE BASED UPON OR ARISING OUT OF THIS LETTER AGREEMENT SHALL BE SUBJECT
TO
BINDING ARBITRATION TO BE HELD IN SEMINOLE OR ORANGE COUNTY, FLOPRIDA, BEFORE
A
RETIRED FLORIDA SUPERIOR COURT JUDGE. JUDGMENT ON THE ARBITRATOR'S AWARD SHALL
BE FINAL AND BINDING, AND MAY BE ENTERED IN ANY COMPETENT COURT. AS A PRACTICAL
MATTER, BY AGREEING TO ARBITRATE, ALL PARTIES ARE WAIVING JURY
TRIAL.
11. Attorneys'
Fees.
The
prevailing party in any arbitration or litigation arising out of or relating
to
this letter agreement shall be entitled to recover all
attorneys' fees and all
costs
(whether or not such costs are recoverable pursuant to the California Code
of
Civil Procedure) as may be incurred in connection with either obtaining or
collecting any judgment and/or arbitration award, in addition to any other
relief to which that party may be entitled.
12. Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be original and all of which takes together shall constitute one
and the same Agreement.
13.
Due
Authority.
By
signing below, the signatories warrant that they have the authority to execute
this Agreement on behalf of the party indicated and all actions necessary to
authorize the execution of this Agreement have been taken.
14. Not
Exclusive.
This
Agreement is not exclusive. Consultant may engage in activities of the type
contemplated hereunder with other firms and Company may engage in activities
of
the type contemplated hereunder with other financial relations
firms.
15. Notices.
All
notices or other communications required hereunder shall be in writing and
addressed as follows:
if
to
Consultant:
Xxxx
Post
XX
Xxx 00
Xxxxxx
Xxxx, XX 00000
if
to
Company:
VoIP,
Inc
000
Xxxxx Xxxxxx Xxxx,
Xxxxx
0000,
Xxxxxxxxx
Xxxxxxx, XX 00000
Attn:
Xxxx Xxxxxxx
Either
party may change the address for notifications and other communications by
notifying the other party in writing.
16. No
Agency.
Nothing
herein shall cause Consultant or the Company to be an agent, partner, joint
venturer or affiliate of the other.
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17. Beneficiaries.
Except
as expressly provided for herein, no parties or persons except the signatories
and their affiliates, successors or assigns, are beneficiaries of this
Agreement.
18. Construction.
If any
provision of this Agreement shall be deemed void, invalid or unenforceable
for
any reason, the remainder of the Agreement shall remain valid and enforceable
and the provision declared invalid or unenforceable shall remain valid and
enforceable to the extent allowed by law and shall be enforced in accordance
with the intent of the parties, as expressed in this Agreement, to the fullest
extent allowed.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first written above.
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VoIP,
Inc
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| /s/ Xxxx Post | By: | /s/ Xxxxxxx Xxxxxxx |
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Xxxx Post |
Name:
Xxxxxxx
Xxxxxxx
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Title:
Chief
Executive Officer
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