Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") dated May 8, 2002 by and
between Strattech Partners, LLC, a Pennsylvania limited liability company having
its principal place of business at 000 Xxxxxxxxxx Xxxx, 0 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 ("Strattech") and FastNet Corporation, Inc.,
a Pennsylvania corporation having its principal place of business at Two
Xxxxxxxx Place, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
("FastNet").
BACKGROUND
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FastNet wishes to retain the services of Strattech to provide
management consulting services with respect to financing, business development,
mergers & acquisitions issues, and investor relations matters. Strattech is
experienced in such matters and has agreed to provide advice and services to
FastNet related thereto.
TERMS
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NOW, THEREFORE, the parties hereto, each intending to be legally bound
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in consideration of the mutual covenants
contained herein, hereby agree as follows:
1. STATEMENT OF WORK.
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1.1 SERVICES. FastNet hereby engages Strattech to provide management
consulting services to FastNet in the areas of: budgets, business metrics,
pre/post acquisition reviews - with focus on financial processes, controls and
systems integration, management reporting, board packages, investor relations
assistance (provided by Xxxx Xxxxx), and other areas as mutually deemed
appropriate by FastNet and Strattech upon the terms and conditions of this
Agreement, as the same may be amended from time to time hereafter.
1.2 TERM. The term of this Agreement shall begin on May 8, 2002 and end
August 8, 2002 (the "Term"). The employees of Strattech staffed on FastNet
matters will devote such productive time, ability, attention and energy to the
business of FastNet during normal business hours as is necessary to provide the
services set forth in Section 1.1 provided that such obligation shall be no less
than 10 business days per month during each of the 3 months of the initial Term.
The Term shall automatically renew for an additional one-month period unless
terminated by either party in writing.
1.3 DELIVERABLES. The deliverables for this project will vary on a
case-by-case basis as defined jointly by Xxxxx Xxxxx and Strattech in writing.
1.4 INDEPENDENT CONTRACTOR. During the Term of this Agreement,
Strattech shall provide consulting services to FastNet as an independent
contractor. Strattech shall at all times during the Term act and shall be deemed
for all purposes to be, an independent contractor and nothing in this Agreement
shall be deemed to create or imply an agency or employment relationship.
1.5 REVIEW OF SERVICES. After 60 days from the date hereof, the parties
shall review the services provided pursuant to Section 1.1 in order to insure
compliance with the goals and objectives of the parties.
2. COMPENSATION.
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2.1 CONSULTING FEES. For the services rendered by Strattech to FastNet,
FastNet shall pay Strattech, or an affiliated company designated by Strattech in
writing, a monthly fee of $6,000 during each month of the Term (the "Fee"). In
addition, Strattech shall receive a per diem fee of $600 if services are
provided in excess of the monthly commitment pursuant to Section 1.2.
2.2 BONUS FEES. Additional bonuses, if any, that are determined by
FastNet's management to be payable to Strattech, shall be paid promptly to
Strattech.
2.3 STOCK OPTIONS. In addition to the Fee, Strattech shall be granted
non-qualified stock options to acquire a total of 12,000 shares of FastNet
common stock (4,000 each month of the initial Term). The stock options shall be
distributed in accordance with the following allocation: 50% distributed to
Strattech; 25% to Xxxx X. Xxxxxxxx III and 25% to Xxxxx X. Xxxxxxx. The stock
options will be exercisable for ten (10) years from the date of grant. The
exercise price shall be the closing price per share of common stock of FastNet
as quoted on the Nasdaq National Market on May 8, 2002. The options shall be
fully vested upon conclusion of the initial Term. In addition, Strattech shall
receive 400 stock options per diem if services are provided in excess of the
monthly commitment pursuant to Section 1.2. Any subsequent stock options due to
Strattech shall be granted on a quarterly basis, with an exercise price equal to
the prevailing market price on the date of grant, and shall be distributed in
accordance with the aforementioned allocation. FastNet hereby agrees that
Strattech, Xxxx Xxxxxxxx, and Xxxxx Xxxxxxx shall be entitled to exercise all
vested options, in whole or in part, at any time during the ten (10) year
exercise period whether or not Strattech is continuing to provide services to
FastNet. Upon termination of service, Strattech, Xxxx Xxxxxxxx, and Xxxxx
Xxxxxxx may purchase the option shares at any time in accordance with the
provisions of FastNet's option plan and in accordance with federal and state
securities laws governing the purchase of such stock options.
FastNet shall take all necessary steps under any applicable federal or
state securities laws to register the shares of common stock issuable hereunder
such that, when issued, the shares of common stock issuable hereunder will be
freely tradeable without restriction.
2.4 EXPENSES. FastNet shall reimburse Strattech for all reasonable and
ordinary expenses incurred by Strattech in connection with the performance of
their services under this Agreement, upon submission to FastNet of documentation
thereof in accordance with FastNet's business reimbursement policy in effect at
the time of such expenditures. Reimbursable expenses shall include parking,
mileage, tolls, travel, travel accommodations, and lodging costs.
2.5 CHANGE OF CONTROL. This agreement shall be binding upon any
successor in interest to FastNet or any purchaser of substantially all of the
assets of FastNet. FastNet hereby covenants and agrees that it will not enter
into any agreement of (a) sale or other disposition of all or substantially all
of the assets of FastNet or (b) a merger or consolidation of FastNet with
another corporation whereby FastNet is not the surviving corporation unless such
agreement makes provision for the foregoing obligation.
3. TERMINATION. Notwithstanding the provisions set forth in Section 2 above,
this Agreement may be terminated at any time 90 days from the date hereof (a) by
FastNet upon not less than 30 days' prior written notice to Strattech or (b) by
Strattech upon not less than 30 days' prior written notice to FastNet.
4. CONFIDENTIALITY.
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4.1 PROPRIETARY INFORMATION. Each party shall at all times during the
term of this Agreement and thereafter to hold in strictest confidence, and not
to use, except as necessary in connection with this Agreement, and, not to
disclose to any person or entity or remove from the possession or control of the
Proprietary Information of any party (as defined below). Except as expressly
provided herein, the receiving party will hold in confidence and not use or
disclose any Proprietary Information of the disclosing party and shall similarly
bind its employees in writing. The foregoing restrictions shall not apply to
Proprietary Information which (a) has become publicly known and made generally
available through no wrongful act of the receiving party, (b) is required by law
to be disclosed, (c) was in the receiving party's possession prior to disclosure
by the other party (and was obtained by the receiving party legally and not in
breach of any agreement to which it was a party) as evidenced by such party's
written records, (d) was rightfully obtained from a third party that had
obtained the information legally and not in violation of an obligation to
maintain the confidentiality of the information or (e) was independently
developed (as evidenced by the written records of such party) without the use of
any Proprietary Information.
4.2 CONSULTANT-RESTRICTED INFORMATION. During the term of this
Agreement, Strattech will not improperly use or disclose any proprietary or
confidential information or trade secrets of any person or entity with whom
Strattech has an agreement or duty to keep such information or secrets
confidential.
4.3 THIRD PARTY INFORMATION. Strattech recognizes that FastNet has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on FastNet's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Strattech shall at all times during the term of this Agreement hold in
strictest confidence, and, except as necessary in performing the services under
this Agreement, not to use or disclose to any person or entity such confidential
or proprietary information from third parties.
5. NON-EXCLUSIVE ENGAGEMENT. During the Term of this Agreement, Strattech may
from time to time enter into agreements similar to this Agreement with other
persons or entities, including entities similar to FastNet, without the
necessity of obtaining approval from FastNet, except for such entities which
receive a majority of its revenues from Internet Service Provider (ISP)
services, in which case Strattech shall be required to obtain the prior written
approval of FastNet prior to such engagement which approval shall not be
unreasonably withheld.
6. RETURN OF COMPANY PROPERTY. Promptly upon the expiration or sooner
termination of the Term, and earlier if requested by FastNet at any time,
Strattech shall deliver to (and will not keep or deliver to anyone else) all
FastNet Proprietary Information (as set forth in Sections 4.1 through 4.3
hereto) in connection with the services to be provided under this Agreement or
otherwise belonging to FastNet. Strattech shall not remove any property of
FastNet from FastNet premises without written authorization from FastNet.
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For all information that is not FastNet Proprietary Information, Strattech
retains all rights and interest, including copyright, trade secrets, and patent
rights in the general concepts, ideas, theories, principles, programs, and other
materials used or produced by Strattech in performance of services rendered
under this agreement.
7. INDEMNIFICATION. FastNet shall indemnify Strattech and its directors,
officers, employees, agents and controlling persons (including, Xxxx Xxxxxxxx,
Xxxxx Xxxxxxx and Xxxxx Xxxxxxx) (each such person being an "Indemnified Party")
from and against any and all losses, claims, damages and liabilities, joint or
several, to which such Indemnified Party may become subject, related to or
arising out of the engagement of Strattech pursuant to, and the performance by
Strattech of the services to be performed under the terms of, this Agreement and
shall reimburse any Indemnified Party for all expenses (including reasonable
counsel fees and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising therefrom. FastNet will not be liable under
the foregoing indemnification provision to the extent that any loss, claim,
damage, liability or expense resulted from Strattech's gross misconduct or
fraud.
8. WARRANTY OF DELIVERABLES. This work shall be performed by employees of
Strattech. Strattech makes no warranty with respect to the services to be
rendered. The work will be done to the extent practicable in the amount of
effort specified in this contract.
9. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
giving effect to any conflict of law provisions.
10. NOTICES. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand delivered, sent by facsimile or
mailed by registered, certified or overnight mail to the addresses set forth in
the first paragraph of this Agreement
11. SEVERABILITY. If any provision of this Agreement or application thereof to
anyone or under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect any
other provision or application of this Agreement which can be given effect
without the invalid or unenforceable provision or application and shall not
invalidate or render unenforceable such provision or application in any other
jurisdiction.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all prior agreements, representations, warranties,
statements, promises, information, arrangements, and understandings, whether
oral or written, expressed or implied, with respect to the subject matter of
this Agreement.
13. AMENDMENT. Any amendment or supplement made to this Agreement shall not be
valid unless in writing, signed by each of the parties to this Agreement.
14. COUNTERPARTS. 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.
15. SURVIVAL. Notwithstanding any termination of this Agreement, Section 4 of
this Agreement shall survive and remain in full force and effect.
16. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
STRATTECH PARTNERS, LLC
By:________________________________
Name:
Title:
FASTNET CORPORATION
By:________________________________
Name:
Title:
