EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement, dated as of December 15, 1998 ("Agreement"),
by and between Sunburst Acquisitions, Inc., a Colorado corporation ("Company"),
and Xxxxxx Xxxxxxxx ("Consultant").
WITNESSETH:
WHEREAS, Consultant previously introduced the Company to Invu, Plc, a
company organized under the laws of the Isle of Man ("Invu"), which introduction
resulted in a successful reverse acquisition of Invu by the Company;
WHEREAS, Consultant has knowledge and expertise which the Company
desires to retain for purposes of facilitating (i) a public offering of the
Company's Common Stock, no par value (the "Company Common Stock"), (ii) the
listing of the Company Common Stock on certain United States and European
securities exchanges, (iii) the sale of the Company Common Stock to potential
investors, (iv) the solicitation of business and sales opportunities for the
Company, including potential joint ventures; and (v) the achievement of any
other such objectives or pursuit of any other such opportunities that the
Company may choose, provided that the Consultant's assistance in the pursuit of
such other opportunities and objectives shall be mutually agreeable to Company
and Consultant;
WHEREAS, Consultant is willing to perform services for the Company and
its affiliates consistent with the foregoing; and
WHEREAS, the Board of Directors of the Company has determined that if
Consultant performs his duties under this Agreement and his engagement hereunder
is not terminated, the Company shall receive a value equal to or in excess of
the shares of Company Common Stock to be granted to the Consultant under this
Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement and the covenants and agreements set forth herein, the
receipt and sufficiency of which are acknowledged by the execution and delivery
hereof, the parties hereto agree as follows:
1. Appointment. Company appoints Consultant and Consultant accepts such
appointment and undertakes to advise and consult with Company and its affiliates
upon the terms and conditions set forth in this Agreement. For purposes of this
Agreement, the term "Company" refers to Sunburst Acquisitions, Inc. and such
affiliates.
2. Duties of Consultant.
2.1 General Duties. Consultant's duties and obligations
hereunder shall include: (a) recommending and negotiating with an
investment bank to (i) underwrite a public offering of the Company
Common Stock to raise approximately $4,000,000 by Xxxxx 00, 0000 (xxx
"Xxxxxx Xxxxxxxx"), (xx) facilitate the listing of the Company Common
Stock on the Nasdaq Small Capital Market, and (iii) assist the Company
in preparing applicable securities filings;
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(b) acting as liaison between the investment bank selected and Company
securities counsel, (c) providing introductions to potential investors
in the Company Common Stock; (d) once the Company Common Stock has been
admitted to trade on the Nasdaq Small Capital Market, obtaining a dual
listing for the Company Common Stock on either EASDAQ or the Euro NM;
(e) soliciting business and sales opportunities for the Company,
including potential joint ventures; (f) reporting to Company, as
reasonably needed, to fulfill Consultant's obligations regarding the
rendition of his consulting services; (g) performing such reasonable
duties at such times and in such manner as shall be mutually agreeable
to Company and Consultant, although at all times Consultant will retain
control over how such services are performed; and (h) observing and
complying with all lawful resolutions, regulations and directions from
time to time made or given by Company as long as such resolutions,
regulations and directions do not interfere with the manner in which
Consultant performs his duties.
2.2 Relationship of the Parties. In performing his services
under this Agreement, Consultant shall be an independent contractor
and, as between Company and Consultant, none of Company or its
affiliates shall be responsible for withholding, collection or payment
of income taxes or for other taxes of any nature on behalf of
Consultant or any agent of Consultant. Nothing contained in this
Agreement shall make Consultant the agent, employee, joint venturer or
partner of Company or provide Consultant with the power or authority to
bind Company to any contract, agreement or arrangement with any
individual or entity except with the prior written approval of such
entities.
2.3 Time Commitment. Consultant shall devote no less than an
average of three days per week to consulting activities performed on
behalf of the Company for the Term of this Agreement, unless otherwise
agreed in writing by the Company and the Consultant.
3. Nondisclosure and Confidentiality; Purchase or Sale of Securities.
Consultant understands that he has been exposed to, or may be exposed to
confidential information and trade secrets of Company, including, without
limitation, trade secrets, methods of operation, techniques, designs, processes,
technologies, compilations of information, past, present and prospective
customer lists, records, and specifications that are owned and commercially
beneficial to Company, including any compilation of various trade secrets or
data derived from such information (collectively, "Confidential Information"),
and that maintenance by Company of its proprietary Confidential Information to
the fullest extent possible is extremely important. Accordingly, Consultant
covenants that except pursuant to the fulfillment of Consultant's duties under
Section 2.1 of this Agreement or with the prior written consent of Company, he
shall at all times keep confidential and not divulge, furnish or make accessible
to anyone (except Company's authorized representatives), any Confidential
Information to which Consultant has been or shall become privy relating to the
business of Company or any of its affiliates, and that, similarly, Consultant
will not use such information for the benefit of any person or entity other than
Company at any time. The provisions of this Section 3 shall not apply to any
information to the extent (i) it is or shall become generally known to the
public, (ii) Consultant is required by law to disclose such information to any
person, or (iii) that agents of Consultant need such information to assist
Consultant with the performance of his duties hereunder. With respect to clause
(iii), however, Consultant agrees to indemnify Company to the extent any agent
of Consultant violates any provision contained in this
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Section 3. Upon termination of Consultant's appointment for any reason, or if
earlier required by Company, Consultant agrees to return to Company all copies
of any documents or items (in any media, including, without limitation,
electronic storage media) previously provided to Consultant and/or its agents
containing any Confidential Information. Consultant will not purchase or sell
Company Common Stock while in possession of Confidential Information, except
that Consultant may exercise his right to purchase Company Common Stock pursuant
to the exercise of Warrants which may be granted to him under the provisions of
Section 6.1 of this Agreement.
4. Noncompetition; Nonsolicitation.
(a) Consultant agrees that prior to the termination of this
Agreement and for a period of twenty-four (24) months after the termination of
this Agreement for whatever reason, Consultant shall not, without the prior
written consent of Company, directly or indirectly engage in, manage, operate,
join, control, or participate in the ownership, management, operation, or
control of, or be employed or engaged or act as a consultant to in any manner
by, any business competing in the Same or Similar Business as Company.
(b) Consultant further agrees that prior to the termination of
this Agreement and for a period of twenty-four (24) months after the termination
of this Agreement for whatever reason, not to solicit, hire, influence or
attempt to influence any employee of Company to terminate his/her employment or
other contractual relationship with Company for any reason including, without
limitation, working for a competitor. Additionally, Consultant agrees that
during the same time period Consultant will not directly or indirectly attempt
to solicit or conduct business with any person or entity that is a client,
customer or active prospect of Company at the time of the termination of this
Agreement if such business would be in competition with Company's business. The
terms "client," "customer" and "active prospect" include, but are not limited
to, any person or entity solicited or contacted by Consultant or Company or any
person or entity to whom services have been rendered by Consultant or Company
directly or indirectly during the twenty-four (24) years preceding the
termination of this Agreement.
(c) For purposes of this Section 4, the "Same or Similar
Business" as Company shall be defined as the information and document management
software business in the United Kingdom and the United States of America;
provided, however, that ownership of less than five percent (5%) of any class of
stock registered under the Securities Exchange Act of 1934, as amended, shall
not, in and of itself, constitute a violation of this Section 4.
(d) Consultant has carefully read and considered the
provisions of this Section 4 and, having done so, agrees that the restrictions
set forth in this Section contain reasonable limitations as to time,
geographical area, scope of activity to be restrained, and do not impose a
greater restraint than is necessary to protect the goodwill or other legitimate
business interests of Company. Consultant further understands and agrees that,
if at some later date, a court of competent jurisdiction determines that the
scope, duration or geographic area of any covenant set forth in this Section 4
is overbroad or unenforceable for any reason, these covenants shall be reformed
by the court and enforced to the maximum extent permissible under applicable
law.
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(e) If Consultant violates any restrictive covenant contained
in this Section 4, then the term of such restrictive covenant will be extended
by adding to it the number of days that Consultant's violation continues.
5. Term. The services of Consultant under this Agreement shall have
commenced on December 15, 1998 (the "Commencement Date") and shall continue
thereafter until December 15, 2000, unless earlier terminated as provided in
this Agreement (the "Term"). The provisions of Section 3 and Section 4 shall
survive the termination of this Agreement.
6. Compensation.
6.1 Compensation. As compensation for the consulting services
provided under this Agreement, Company shall transfer to Consultant (i) 50,000
shares of Company Common Stock on May 1, 1999 and, (ii) if this Agreement is not
earlier terminated, an additional 50,000 shares of Company Common Stock on
October 1, 1999. If, during the term of this Agreement, through the efforts of
the Consultant, the Company enters into an Underwriting Agreement with respect
to the Public Offering, he will receive Warrants to purchase 200,000 shares of
Company Common Stock at an exercise price of $0.50.
6.2 Expenses. Company shall reimburse Consultant for all
reasonable and ordinary out-of-pocket business expenses Consultant reasonably
incurs in the performance of his duties under this Agreement. Consultant will
receive the written approval of the President of Company for any related
expenses in excess of $200.
7. Termination. This Agreement may be terminated for cause by the
Company at any time.
8. Assignment. Neither party hereto may assign, without the other
party's prior written consent, this Agreement, or any right or obligation
hereunder, and any and all assignments without such prior written consent shall
be null and void.
9. Miscellaneous.
9.1 Notices. Any notice to be given hereunder is to be given
in writing by either party to the other and delivered or sent by prepaid airmail
post or facsimile transmission addressed to the address or the addresses set
forth opposite each party's name below or such other address as may be notified
by one party to the other for such purposes and shall be deemed to be served in
the case of airmail post three days after posting and in the case of facsimile
transmission immediately upon successful transmission.
9.2 Headings; Pronouns. The headings of the paragraphs of this
Agreement are for convenience of reference only and are not to be considered and
construed in this Agreement. When the context so requires in this Agreement, the
masculine gender includes the feminine and neuter, and the singular number
includes the plural, and vice versa.
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9.3 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
9.4 Governing Law; Venue. This Agreement shall be governed by
and construed in accordance with the laws of England and the parties agree to
submit themselves to the jurisdiction of England.
9.5 Counterparts. This Agreement may be executed in multiple
counterparts, all of which shall be deemed originals, but which counterparts
shall constitute one and the same instrument.
9.6 Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors and
assigns. Whenever a reference to any party is made herein, such reference shall
be deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of such party.
9.7 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
No variations, modifications or changes herein or hereof shall be binding upon
any party unless set forth in a document duly executed by or on behalf of such
party.
9.8 Amendments. This Agreement may not be modified, altered,
amended, waived or terminated orally, unless in writing signed by the parties
hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and date above first written.
CONSULTANT:
/s/ Xxxxxx Xxxxxxxx
ADDRESS: --------------------------------------
Apt. B42 Xxxxxx Xxxxxxxx
Roc Fleuri
0 Xxx Xx Xxxxx
XX 00000 Xxxxxx
COMPANY:
SUNBURST ACQUISITIONS, INC.
ADDRESS:
The Beren, Blisworth Hill Farm
Stoke Road By:
Xxxxxxxxx, Xxxxxxxxxxxxxxxx XX0 0XX -----------------------------------
Xxxxxx Xxxxxxx Name:
Fax: 000 00 0000 000000 ---------------------------------
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