EXHIBIT 10.9
CONSULTING AGREEMENT
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CONSULTING AGREEMENT dated as of April 13th 2000, by and between VIANET
TECHNOLOGIES, INC. a Nevada corporation with offices at 00 Xxxxxx Xxxxxx (0xx
xxxxx), Xxx Xxxx, XX 00000 and CFM CAPITAL LIMITED, a Bermuda corporation with
offices at Xxxx House, 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx XXXX ("Xxxxxxxxxx").
W I T N E S S E T H:
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WHEREAS, Vianet desires to retain the Consultant as a consultant and Consultant
desires to act as a consultant to Vianet, subject to and upon the terms and
conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants and agreements set forth herein, the parties hereto
agree as follows:
1. Consultancy. Vianet hereby retains consultant and Consultant hereby agrees
to act as a consultant to Vianet. Consultant shall perform such services
for Vianet as agreed with the Board of Directors of Vianet from time to
time (the "Consulting Services"). Consultant agrees to cause Xxxxx Xxxxxxxx
or such other persons approved by Vianet to perform the Consulting Services
on behalf of the Consultant. The Consultant shall exercise its own
reasonable judgment and employ such means as it, in good faith, determines
are reasonable in performing the Consulting Services, and Vianet will not
exercise any control over the methods or means employed by the Consultant
in performing the Consulting Services. The Consulting Services shall be
performed at such times and at such locations as Consultant shall
determine.
2. Independent Contract or Status. It is understood and agreed that in the
performance of the Consulting Services by the Consultant hereunder, it is
acting as an independent contractor and not in any way as an employee or
agent of Vianet. The Consultant will determine the hours of work of its
employees and the Consultant's employees are not required to work any
specified number of hours in any week. Any time off, including weekends and
vacation, will be solely and entirely at the discretion of the Consultant.
The Consultant may be required upon request of the Board, to submit to
Vianet written or oral reports regarding its activities. Employees of the
Consultant and others retained by the Consultant are not employees of
Vianet for purposes of worker's compensation, unemployment insurance,
medical, disability and group life insurance and they are not eligible to
participate in any welfare, pension, profit sharing or fringe benefit plan
or arrangement of Vianet.
3. Consulting Fees. During the Term, as full compensation for the Consulting
Services, Vianet shall pay to the Consultant a consulting fee as described
in Appendix A to this document. In addition to the Base Fee, the Consultant
shall be paid such additional compensation as shall be determined from time
to time by the Board of Directors of Vianet and approved by the Board of
Directors of Vianet as provided for in Appendix A. It is understood that
Vianet will not withhold any income taxes, unemployment taxes or other
taxes and that the Consultant is solely responsible for paying and
reporting all taxes, including income taxes and estimates thereof for
itself and all employees, agents or contractors. Vianet will report to the
appropriate tax authorities the amounts paid to the Consultant and, even
though the Consultant is an independent contractor, if Vianet is required
by law, or is advised by its accountants or attorneys that it is required
by law to deduct for withholding, or other taxes, it shall be free to do
so, which taxes if not previously deducted shall be reclaimable from the
consultant.
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4. Expenses. In addition to the consulting fees provided for in Section 3
above, Vianet shall reimburse the Consultant for reasonable costs and
expenses incurred by the Consultant in performing the Consulting Services,
subject to review by the Board of Directors of Vianet or a senior officer
of Vianet designated by the Board of Directors of Vianet.
5. Use of Vianet's Facilities. Employees of the Consultant are not required
to use the office facilities of Vianet in performing the Consulting
Services hereunder.
6. Term. The term of this Agreement shall commence as of January 1st 2000 and
shall continue for a period of three (3) years (the "Term"). At the option
of the Consultant, exercisable by written notice delivered by the
Consultant to Vianet not less than thirty (30) days prior to the end of the
Initial Term, this Agreement shall be renewed for an additional two (2)
years (the "Renewal Term").
7. Termination.
7.1 Vianet or Consultant may terminate this Agreement in the event the
other party fails to perform in accordance with the provisions of this
Agreement.
7.2 Vianet may terminate this Agreement, at any time, upon thirty (30)
days written notice, to Consultant for any reason whatsoever.
7.3 Upon termination Consultant shall cease all provision of services and
no invoice shall be made for services performed after notice of
suspension or termination. Upon termination, for any reason except
breach of this agreement by Consultant, of this Agreement or a portion
of the services covered hereunder, Vianet shall pay to Consultant an
amount equal to the Severance Amount as provided in Section 8 of this
Agreement.
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7.4 Termination of this Agreement or a portion of any services hereunder
except for breach of this agreement by Consultant shall not prejudice
or affect the rights or remedies of either Vianet or Consultant
against the other in respect of any breach of the Agreement which
occurred before the effective date of termination and shall not
prejudice the rights and remedies of Consultant in respect of any sum
or sums of money owed or owing from Vianet.
8. Severance Payment. Upon termination of this Agreement by Vianet or a change
in control of Vianet, in addition to earned but unpaid Consulting Fees
payable in accordance with Section 3, Vianet shall pay to Consultant
severance in the amount equal to two times the Base Fee as identified in
Appendix A. The severance amount shall be payable in quarterly installments
with the first payment due not later than thirty (30) days after
termination.
9. Disclaimers and Limitations of Liability. It is expressly understood and
agreed that Vianet shall NOT be responsible nor liable for any loss,
damage, penalty, or the like, financial or otherwise, caused by:
(i) failure by any consultant, advisor, contractor, supplier, or any other
persons, individuals or firms NOT employed by Vianet to discharge its
contractual obligations; or
(ii) any delay, modification, or suspension of the time schedule for
performing the services hereunder whether agreed or not agreed with
Consultant, which is NOT the responsibility of Vianet, its agents, or
consultants; or
(iii) any negligent work carried out by the Consultant or by any third
party other than Vianet, its agents, or sub-consultants, or employees; or
(iv) the failure of any person NOT employed or contracted with by Vianet to
discharge any legal duty or obligation whatsoever.
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10. Confidentiality. The Consultant hereby agrees that during and after the
term of this Agreement, neither it nor any of its employees nor others
retained by the Consultant to perform some or all of the services to be
performed hereunder, will divulge any confidential or proprietary
information belonging to Vianet or any company associated with Vianet or to
any customer of Vianet and neither the Consultant nor any employee of the
Consultant nor any other person retained by the Consultant will make
available to others any Vianet or account list, price list, business plan,
trade secret, document, file, paper or data of any kind, in whatever form
embodied, concerning the business or financial affairs of Vianet, its
associated companies, or its customers or remove any of the foregoing from
the premises of Vianet.
11. Assignment. Except as otherwise provided herein, the Consultant may not
assign this Agreement or delegate any of its obligations hereunder, without
the prior written consent of Vianet and Vianet may not assign this
Agreement, or delegate any of its obligations hereunder, without the prior
written consent of the Consultant. Any assignment or delegation in
violation of the provisions hereof shall be void and of no effect.
12. Entire Agreement; Modification; Binding Effect. This Agreement constitutes
the entire agreement between the Consultant and Vianet and supersedes all
prior understandings and agreements concerning the subject matter hereof.
This Agreement (including this provision against oral modification) may not
be changed or terminated, and no provision hereof may be waived orally. No
modification, waiver or termination hereof shall be binding upon either
party unless in writing and signed by or on behalf of the party against
which the modification, waiver or termination is asserted. This Agreement
shall be binding upon and shall enure to the benefit of the Consultant and
Vianet, their successors and permitted assigns.
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13. Notices. Any notice or other communication required or permitted hereunder
shall be sufficiently given if delivered personally, or, if sent by
registered or certified mail, postage pre-paid, return receipt requested,
addressed to the party intended to receive such notice at the address set
forth above, or such other address as such party may indicate in the manner
provided for notices herein. Any notice or communication shall be deemed to
have been given upon the date personally delivered or, if mailed, the
earlier of the date it is received and three (3) days after the date so
mailed.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date above
written.
VIANET TECHNOLOGIES, INC.
By: __________________________________
Position: __________________________________
CFM CAPITAL LIMITED
By: __________________________________
Position: __________________________________
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APPENDIX A
App. 1: The Base Fee for the Term of the Agreement shall be $250,000 per
annum, payable in twelve equal installments on the last day of each
calendar month.
App. 2: In addition to the Base Fee the Consultant shall be paid such
additional compensation as shall be determined from time to time by the
Board of Directors of Vianet and approved by the Board of Directors of
Vianet.
App. 3: In determining the amount of the additional compensation The Board of
Directors will take into consideration the attainment of specific
criteria as agreed with the Consultant from time to time.
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