EXHIBIT 10.13
CONSULTANT AGREEMENT
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THIS CONSULTANT AGREEMENT (the "Agreement") is entered into as of the
1st day of March, 2002 (the "Effective Date") by and between Junum Incorporated,
a Delaware corporation (the "Company"), and Xxxxxxxx Xxxxx (the "Consultant").
WHEREAS, Consultant desires to provide the Company with his services
and the Company desires to receive Consultant's services on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. TERM OF AGREEMENT.
The term of Consultant's services with the Company hereunder (the
"Term") shall commence on April 1, 2002 (the "Commencement Date") and shall
terminate upon thirty (30) days written notice by either party.
2. POSITION AND DUTIES.
During the Term, Consultant shall provide services as a consultant of
the Company. Both the Company and the Consultant agree that Consultant will act
as an independent contractor in the performance of her services under this
Agreement. Consultant shall render such services on the terms set forth herein.
The services shall include providing advice and recommendations related to (i)
the Company's operational performance (ii) cost savings and improved efficiency
(iii) personnel and organizational structure (iv) HR practices and policies (v)
product development and (v) specific projects to be assigned to Consultant by
the Company (the "Services). Although Consultant may handle certain
administrative details related to the Company's legal affairs, the Consultant
shall not provide legal advice to and the Company shall not rely on Consultant's
opinion in making decisions concerning legal matters. It is understood and
agreed that Consultant shall not be responsible for and Junum shall not permit
Consultant to be responsible for (i) financial decisions (including but not
limited to those decisions related to payments and priority of payments of the
Company's obligations; (ii) executing, on Junum's behalf, legal documents,
checks, drafts or other financial instruments; (iii) binding the Company to any
contract or other legal or financial obligation; and (iv) any other activity or
responsibility not consistent with Consultant's position as a non-executive,
non-officer, non-director independent contractor.
3. OTHER ACTIVITIES OF CONSULTANT.
The Company recognizes that Consultant may provide services to other
businesses and entities other than the Company. Consultant shall be free to
directly or indirectly own, manage, operate, join, purchase, organize or take
preparatory steps for the organization of, build, control, finance, acquire,
lease or invest or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, partner,
principal, manager, agent, representative, associate, consultant, investor,
advisor or otherwise with (collectively, be "affiliated" with), any business or
enterprise, or permit her name or any part thereof to be used in connection with
any business or enterprise. Consultant may be affiliated with any entity which
may provide services to the Company. The Company hereby waives any conflict of
interest that may arise from a relationship between Consultant and any entity
with which Consultant is affiliated upon full disclosure of the relationship to
the Company.
4. COMPENSATION.
During the Term, as compensation for his services hereunder, the
Company shall compensate Consultant as follows:
FEES. Company shall pay to Consultant fees ("Fees") at the
rate of Ten Thousand ($10,000) per month for services provided
under this Agreement. Fees shall be paid by the Company in
cash on a semi-monthly basis in arrears. Junum shall issue
Consultant a Form 1099 for all Fees paid under this Consulting
Agreement. The Consultant expressly refuses to accept payment
of Fees in securities of the Company or in any other form of
non-cash payment.
4.1 WARRANTS. On the date hereof, the Company shall issue to
Consultant warrants (the "Warrants") to purchase One Million
Eight Hundred Thousand (1,800,000) shares of the Company's
common stock at an exercise price equal to $0.17 per share,
which is the Fair Market Value as of the date hereof. The
Warrants shall have a term of five (5) years following the
date hereof and shall vest and become exercisable in equal
monthly installments of 50,000 shares commencing on March 1,
2002 through and including February 1, 2005. Upon the
occurrence of a Change in Control of the Company prior to the
termination of this Agreement, the vesting schedule of the
Warrants shall automatically be accelerated with respect to a
maximum of 300,000 warrants, such that up to 300,000 of such
Warrant shares shall immediately vest as of the date of such
Change in Control. For purposes of this Agreement "Change in
Control" shall have the meaning set forth in the attached
Appendix A.
4.2 EXPENSES. During the Term, the Company shall reimburse
Consultant for any expenses reasonably incurred by him in
furtherance of his duties hereunder on an accountable basis,
including without limitation travel (including (i) expense
reimbursement for Consultant's automobile travel to and from
the Company's location and other locations as may be required;
and (ii) coach class travel), meals, entertainment,
accommodations, and other customary expenses for Company
purposes, upon submission of vouchers or receipts and in
compliance with such rules and policies generally applicable
to executives of the Company.
5. TERMINATION.
5.1 TERMINATION FOR CAUSE. The Company may terminate the Agreement
hereunder for Cause at any time. "Cause" shall mean that
during the Term, the Consultant engaged in gross and willful
misconduct that is materially and significantly injurious to
the Company, and, after written notice of such conduct,
Consultant has failed to cease such conduct within not less
than 20 days. Any termination pursuant to this section shall
be communicated by written Notice of Intended Termination. For
purposes of this Agreement, a "Notice of Intended Termination"
shall mean a notice which shall clearly state the specific
termination provision in this Agreement relied upon and shall
set forth in reasonable and specific detail the facts and
circumstances claimed to provide a basis for termination. For
20 days after receipt by Consultant of the Notice of Intended
Termination, Consultant shall have the opportunity to meet and
confer with the appropriate and authorized representative of
the Company with respect to any complaint or alleged breach,
violation or default hereunder, and shall have the opportunity
to cure any such breach, violation, default or any other event
which would be considered "Cause" hereunder for a period of 15
days following such meeting.
5.2 COMPENSATION UPON TERMINATION FOR CAUSE. In the event of
termination of this Agreement by the Company for Cause, the
Company shall pay to Consultant (i) all amounts of accrued but
unpaid Fees through the effective date of such termination,
and (ii) reimbursement for reasonable and verifiable expenses
incurred by Consultant through the date of notice of such
termination ((i) and (ii), the "Accrued Benefits"). Any
portion of the Warrants that has vested and become exercisable
prior to the date of termination shall remain exercisable for
a period of two (2) months following the date of termination
of this Agreement for Cause. Any portion of Consultant's
Warrants that have not vested as of the date of termination
shall terminate as of such date.
5.3 COMPENSATION UPON TERMINATION WITHOUT CAUSE. In the event the
Company terminates this Agreement without Cause as defined
herein, or does not fully comply with the termination and
hearing procedures specified in Section 5.1 herein, then the
Company shall pay to Consultant as actual and liquidated total
damages the Accrued Benefits. In addition, all warrants held
by Consultant which have vested as of the termination date
shall remain exercisable for a period of two (2) years from
the date of termination of this Agreement. Any portion of
Consultant's Warrants that have not vested as of the date of
termination shall terminate as of such date.
5.4 COMPENSATION UPON TERMINATION BY REASON OF CONSULTANT'S DEATH
OR TOTAL DISABILITY. In the event that this Agreement is
terminated by reason of Consultant's death or Total Disability
(as defined below), Consultant or Consultant's estate, as the
case may be, shall be entitled to receive (i) the Accrued
Benefits, and (ii) any portion of the Warrants that have
vested and become exercisable prior to the date of
termination. "Total Disability" shall mean any physical or
mental disability that, even after reasonable accommodation by
the Company, prevents Consultant from performing one or more
of the essential functions of his position and which is
expected to be of at least 30 days duration. A termination of
this Agreement due to Total Disability shall be deemed a
termination without cause.
6. PROTECTION OF CONFIDENTIAL INFORMATION.
During the course of providing services to the Company, Consultant may
be exposed to documents and other information regarding the confidential affairs
of the Company, including without limitation information about its past, present
and future financial condition, the markets for its products, past, present or
future actual or threatened litigation, trade secrets, current and prospective
customer lists, operational methods, acquisition plans, prospects, plans for
future development and other business affairs and information about the Company
not readily available to the public (the "Confidential Information"). Consultant
shall not divulge, disclose, or otherwise use any Confidential Information for a
period of two (2) years from the Effective Date, unless and until such
information is readily available in the public domain or unless such disclosure
is required by law or occurs in the normal course of performing Consultant's
services to the Company.
7. INDEMNIFICATION
The Company agrees to indemnify and hold harmless Consultant to the
fullest extent possible from and against any and all losses, claims, damages,
and liabilities, joint or several (and all actions, claims, proceedings and
investigations in respect thereof), caused by, related to or arising out of,
directly or indirectly, the services provided under this Agreement, whether
under any statute, under common law, or otherwise. The Company will also
reimburse Consultant for all
expenses (including attorneys' fees), as such expenses are incurred, in
connection with investigating, preparing to defend or defending any such action,
claim, proceeding or investigation, whether or not in connection with pending or
threatened litigation in which Consultant is a party or target. If for any
reason the foregoing indemnification is unavailable to Consultant or
insufficient to hold it harmless, then the Company will contribute to the amount
paid or payable by Consultant as a result of such loss, claim or damage or
liability in such proportion as is appropriate to reflect the benefits received
by the Company and the fault of the Company, as well as any relevant equitable
considerations. Consultant will have the right to retain counsel of his own
choice to represent Consultant, and the fees and expenses of such counsel will
be paid by the Company. Such counsel will, to the fullest extent consistent with
its professional responsibilities, cooperate with the Company and any counsel
designated by the Company. The indemnification, contribution and expense
reimbursement provisions in this Section 7 are in addition to, and not in lieu
of, any other obligation or liability the Company might otherwise have to
Consultant. Neither termination nor completion of this Agreement will affect the
provisions of this section, which will remain operative and in full force and
effect.
8. ARBITRATION AND GOVERNING LAW.
Any controversy, claim, or counterclaim arising from this Agreement
between the Company and the Consultant shall be submitted to and decided by
final and binding arbitration by a single arbitrator administered in Los
Angeles, California by JAMS under its commercial rules, and shall apply
California law without regard to conflict of laws provisions. The arbitrator may
not, in any event, either make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement, or alter, amend, modify
or change any of the terms of this Agreement. The arbitrator's decision shall be
rendered within 30 days after the conclusion of the arbitration hearing, and the
arbitrator shall make findings of fact and shall set forth the reasons and legal
bases for the decision. Such arbitrator's decision shall be final and binding on
the parties and a judgment upon the decision rendered may be entered in any
court having jurisdiction thereof. The prevailing party in such dispute shall be
entitled to recover from the other party all reasonable costs and fees of
enforcing any right of the prevailing party including, without limitation, any
JAMS administration fee, the arbitrator's fee, costs for the use of facilities
during the hearings, expert fees, accountant's fees and expenses, and attorneys'
fees and expenses. The prevailing party shall be that party which recovers a
judgment or award in the action.
9. NOTICES.
Any notice required, permitted or desired to be given pursuant to any
of the provisions of this Agreement shall be deemed to have been sufficiently
given or served for all purposes if delivered in person or sent by certified
mail, return receipt requested, postage and fees prepaid, or by national
overnight delivery prepaid service to the parties at their addresses set forth
below. Any party hereto may at any time and from time to time hereafter change
the address to which notice shall be sent hereunder by notice to the other party
given under this paragraph. The date of the giving of any notice sent by mail
shall be the day two (2) days after the posting of the mail, except that notice
of an address change shall be deemed given when received. The addresses of the
parties are as follows:
If to the Company: Junum Incorporated
Xxxxx Xxxxxxx, President
0000 Xxxxxxxxx Xx.
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Consultant: Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxx Xxx #000
Xxxxxxxxxx Xxxxx, XX. 00000
Telephone: (000) 000-0000
Any party may change such party's address for notices by notice duly given
pursuant hereto.
10. GENERAL.
10.1 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of California without giving effect to conflicts of laws
principles thereof which might refer such interpretations to
the laws of a different state or jurisdiction.
10.2 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties relating to Consultant's services
to the Company during the Term and cancels and supersedes all
agreements, arrangements and understandings relating thereto
made prior to the date hereof, written or oral, between the
Consultant and the Company. This Agreement shall not be
altered or modified except in writing, duly executed by the
parties hereto.
10.3 AMENDMENTS; WAIVERS. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or
covenants hereof may be waived, only by a written instrument
executed by the parties, or in the case of a waiver, by the
party waiving compliance. The failure of any party at any time
or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to
enforce the same. No waiver by any party of the breach of any
term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver
of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
10.4 SUCCESSORS AND ASSIGNS; BINDING AGREEMENTS. This Agreement
shall inure to the benefit of and shall be binding upon the
Company (and its successors and assigns) and Consultant and
his heirs, executors and personal representatives. Prior to
the effectiveness of any succession (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the
Company, the Company will require the successor to expressly
assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to
perform it if no such succession had occurred. As used in this
Agreement, "Company" shall mean the Company as defined above
and any successor to its business and/or assets which executes
and delivers the Agreement provided for in this Section 10.4
or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law or otherwise.
10.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. If
any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such
provision, together with all other provisions of this
Agreement, shall remain valid and enforceable and continue in
full force and effect to the fullest extent consistent with
law. In lieu of any such invalid, illegal or unenforceable
provision, the parties hereto intend that there shall be added
as part of this Agreement a term, covenant or provision as
similar in terms to such invalid, illegal or unenforceable
term, covenant of
provision, or part thereof, as may be possible and be valid,
legal and enforceable.
10.6 WARRANTY. The Company and Consultant each hereby warrant and
agree that each is free to enter into this Agreement, that the
parties parties signing below are duly authorized and directed
to execute this agreement, and that this Agreement is a valid,
binding and enforceable against the parties hereto.
10.7 CAPTIONS. The section headings contained herein are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
10.8 SURVIVAL OF TERMS. Notwithstanding the termination of this
Agreement for whatever reason, the provisions hereof shall
survive such termination, unless the context requires
otherwise.
10.9 COUNTERPARTS; FACSIMILE. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original but all such
counterparts together shall constitute one and the same
instrument. Such execution may be by facsimile. Any signature
by facsimile shall be valid and binding as if an original
signature were delivered.
IN WITNESS WHEREOF, Consultant and the Company have executed this Agreement as
of the date first written above.
JUNUM INCORPORATED
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
CONSULTANT
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
APPENDIX A
"CHANGE IN CONTROL" means the occurrence of any of the following: (A)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company to any "person" (as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which is (i) a third party, (ii) not affiliated with the Company
as of the date hereof, (iii) not affiliated with any holder (as of the date
hereof) of more than 4% of any class of outstanding capital stock of the
Company, and (iv) not the holder (as of the date hereof) of any convertible
security which is convertible into more than 4% of the outstanding capital stock
of the Company at any time (a "Non-affiliated Purchaser"), (B) the adoption of a
plan relating to the liquidation or dissolution of the Company, and (C) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Non-affiliated Purchaser becomes
the "beneficial owner" (as such terms are used in Rule 13d-3 and Rule 13d-5
under the Exchange Act), directly or indirectly, of capital stock of the Company
representing a greater proportion of the voting power of the Company's
outstanding voting securities than the shares of Company stock "beneficially
owned" by the Principal Shareholders and their Related Parties in the aggregate.
For purposes of this definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring voting stock of the Company will be
deemed to be a transfer of such voting stock as corresponds to the portion of
the equity that has been so transferred.
"PRINCIPAL SHAREHOLDERS" means those shareholders which hold beneficial
ownership of an aggregate 51% or more of the outstanding shares of the Company
on the Effective Date.
"RELATED PARTY" with respect to any Principal Shareholder means any (A)
spouse or family member of such Principal Shareholder, (B) corporation,
partnership or any other entity, the stockholders, partners, owners or persons
beneficially holding an 80% or more controlling interest of which consist of
such Principal Shareholder and/or such other persons referred to in the
immediately preceding clause (A), or (C) trust, the beneficiaries holding more
than a 50% beneficial interest of which consist of any Principal Shareholder
and/or other such persons referred to in clause (A), so long as the Principal
Shareholder or any of the other persons referred to in clause (A) above or any
other Principal Shareholder serves as trustee therefor and, in such capacity,
possesses and retains the right to vote, at such trustee's absolute discretion,
all shares of capital stock held in such trust.
