EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into effective
as of the 15th day of May, 2006 (the "Effective Date"), between Vocalscape
Networks, Inc, a Nevada corporation, (the "Company") and Xxxxx X. Xxxx, of 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx (the "Consultant")(collectively,
the "Parties").
WHEREAS:
A. The Company is a provider of technology and software that enables
communications over the internet as an alternative to traditional
telecommunications called Voice Over Internet Protocol. (VoIP).
B. The Company desires to retain the Consultant to provide consultant services
to the Company on the terms and subject to the conditions of this Agreement.
C. The Consultant has agreed to provide consultant services to the Company on
the terms and subject to the conditions of this Agreement.
THIS AGREEMENT WITNESSES THAT in consideration of the premises and mutual
covenants contained in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound hereby, agree as follows:
1. DEFINITIONS
1.1 The following terms used in this Agreement shall have the meaning specified
below unless the context clearly indicates the contrary:
(a) "Consultant Shares" shall mean the shares of the Company's common
stock issuable to the Consultant pursuant to Section 5.1;
(b) "Board" shall mean the Board of Directors of the Company;
(c) "Term" shall mean the term of this Agreement beginning on the
Effective Date and ending on the close of business on the effective
date of the termination of this Agreement.
2. ENGAGEMENT AS A CONSULTANT
2.1 The Company hereby engages the Consultant as a consultant to provide the
services of the Consultant in accordance with the terms and conditions of this
Agreement and the Consultant hereby accepts such engagement.
3. TERM OF THIS AGREEMENT
3.1 The term of this Agreement shall become effective and begin as of the
Effective Date, and shall continue until the close of business on the date which
is six (6) months from the Effective Date of this Agreement, unless this
Agreement is earlier terminated in accordance with the terms of this Agreement.
4. CONSULTANT SERVICES
4.1 The Consultant agrees to perform the following services and undertake the
following responsibilities and duties to the Company to be provided by the
Consultant to the Company as consulting services (the "Consulting Services"):
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(a) The Consultant will provide the following business development
services to the Company;
(b) Reporting on such services to the President of Company;
(c) Performing such other duties and observing such instructions as may
be reasonably assigned from time to time by the President of the
Company, provided such duties are within the scope of the Company's
business and services to be provided by the Consultant.
4.2 The Consultant shall devote his time, attention and energies to the business
affairs of the Company as may be reasonably necessary for the provision of the
Consulting Services, provided, however, the Consultant may engage in reasonable
investment and other personal activities that do not interfere with the
Consultant's obligations hereunder.
4.3 In providing the Consulting Services, the Consultant will:
(a) comply with all applicable federal, state, local and foreign
statutes, laws and regulations;
(b) not make any misrepresentation or omit to state any material fact
that will result in a misrepresentation regarding the business of
the Company; and
(c) not disclose, release or publish any information regarding the
Company without the prior written consent of the Company.
4.4 The Consultant will at all times be an independent contractor and the
Consultant will not be deemed to be an employee of the Company.
4.5 The Consulting Services provided under this Agreement shall not include:
(a) services in connection with the offer or sale of securities in a
capital-raising transaction;
(b) services that directly or indirectly promote or maintain a market
for the securities of the Corporation including without limitation
the dissemination of information that reasonably may be expected to
sustain or raise or otherwise influence the price of the securities;
(c) services providing investor relations or shareholder communications;
(d) consultation in connection with financing that involves any issuance
of the Company's securities, whether equity or debt.
5. CONSULTANT FEE
5.1 Upon the execution of this Agreement and in consideration for the provision
of the Consulting Services, the Company agrees to pay Consultant, as his fee and
as consideration for services provided, 800,000 shares of common stock of the
Company, which shares shall be registered on Form S-8 with the United States
Securities and Exchange Commission (the "SEC") issued to Xxxxx X. Xxxx, the
natural person performing the consulting services for the Company. All shares
and certificates representing such shares shall be subject to applicable SEC,
federal, state (Blue sky) and local laws and additional restrictions set forth
herein.
6. REIMBURSEMENT OF EXPENSES
6.1 The Company will pay to the Consultant the reasonable travel and promotional
expenses and other specific expenses incurred by the Consultant in provision of
the Consulting Services, provided the Consultant has obtained the prior written
approval of the Company.
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7. TERMINATION
7.1 The Company may terminate this Agreement at any time upon the occurrence of
any of the following events of default (each an "Event of Default"):
(a) the Consultant's commission of an act of fraud, theft or
embezzlement or other similar willful misconduct;
(b) the neglect or breach by the Consultant of his material obligations
or agreements under this Agreement; or
(c) the Consultant's refusal to follow lawful directives of the
President of the Company,
Provided that notice of the Event of Default has been delivered to the
Consultant and provided the Consultant has failed to remedy the default within
seven days of the date of delivery of notice of the Event of Default, if the
default is of such a nature that it is capable of remedy.
7.2 The Company may at its option terminate this Agreement in the absence of an
Event of Default by delivering notice of termination to the Consultant.
7.3 The Consultant may terminate this Agreement at any time, provided that
thirty days prior written notice of termination has been delivered to the
Company.
7.4 On termination of this Agreement for any reason, all rights and obligations
of each party that are expressly stated to survive termination or continue after
termination will survive termination and continue in full force and effect as
contemplated in this Agreement.
7.5 Upon termination, the Consultant will not be entitled to receive any
additional Consultant Shares, other than those Consultant Shares issuable in
respect of services provided up to the date of termination.
8. PROPRIETARY INFORMATION
8.1 The Consultant will not at any time, whether during or after the termination
of this Agreement for any reason, reveal to any person or entity any of the
trade secrets or confidential information concerning the organization, business
or finances of the Company or of any third party which the Company is under an
obligation to keep confidential, except as may be required in the ordinary
course of performing the Consultant Services to the Company, and the Consultant
shall keep secret such trade secrets and confidential information and shall not
use or attempt to use any such secrets or information in any manner which is
designed to injure or cause loss to the Company. Trade secrets or confidential
information shall include, but not be limited to, the Company's financial
statements and projections, expansion proposals, business plans and details of
its business relationships with banks, lenders and other Parties not otherwise
publicly available.
9. RELIEF
9.1 The Consultant hereby expressly acknowledges that any breach or threatened
breach by the Consultant of any of the terms set forth in Section 8 of this
Agreement may result in significant and continuing injury to the Company, the
monetary value of which would be impossible to establish, and any such breach or
threatened breach will provide the Company with any and all rights and remedies
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10. INDEMNIFICATION
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10.1 The Consultant will indemnify and defend and hold the Company harmless
against any claims, actions, suits, proceedings, investigations, losses,
expenses, demands, obligations, liabilities, judgments, fines, fees, costs and
expenses (including costs and reasonable attorney fees) and any amounts paid in
settlements in any of the foregoing which arise or result from or are related to
any breach or failure of the Consultant to perform any of its covenants and
agreements set forth in this Agreement. The indemnification provisions of this
paragraph shall survive the termination and expiration of this Agreement.
11. PARTIES BENEFITED; ASSIGNMENTS
11.1 This Agreement shall be binding upon, and inure to the benefit of, the
Consultant, his heirs and his personal representative or representatives, and
upon the Company and its successors and assigns. Neither this Agreement nor any
rights or obligations hereunder may be assigned by the Consultant.
12. NOTICES
12.1 Any notice required or permitted by this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, or by overnight
courier, addressed to the Board and the Company at its then principal office, or
to the Consultant at the address set forth in the preamble, as the case may be,
or to such other address or addresses as any party hereto may from time to time
specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 12. Notices shall be deemed given when delivered.
13. GOVERNING LAW
13.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of New York and each party hereto adjourns to the jurisdiction
of the courts of the State of New York.
14. REPRESENTATIONS AND WARRANTIES
14.1 The Consultant represents and warrants to the Company that (a) the
Consultant is under no contractual or other restriction which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder or
other rights of Company hereunder, and (b) the Consultant is under no physical
or mental disability that would hinder the performance of his duties under this
Agreement.
15.1 MISCELLANEOUS
15.1 This Agreement contains the entire agreement of the Parties relating to
the subject matter hereof.
15.2 This Agreement supersedes any prior written or oral agreements or
understandings between the Parties relating to the subject matter hereof.
15.3 No modification or amendment of this Agreement shall be valid unless in
writing and signed by or on behalf of the Parties hereto.
15.4 A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any subsequent breach of the same
or any other term or condition.
15.5 This Agreement is intended to be performed in accordance with, and only to
the extent permitted by, all applicable laws, ordinances, rules and
regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any
extent, be held invalid or unenforceable, such invalidity and
unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of
which shall be enforced to the greatest extent permitted by law.
15.6 The headings in this Agreement are inserted for convenience of reference
only and shall not be a part of or control or affect the meaning of any
provision hereof.
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15.7 The Consultant may assign the benefit of this Agreement to a private
corporation controlled by the Consultant, provided that such assignment
will not relieve the Consultant from his obligations to the Company
arising under this Agreement.
15.8 This Agreement replaces and supersedes all other consultant and employment
agreements between the Company and the Consultant and any amendments
hereto.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date first written above.
VOCALSCAPE NETWORKS, INC.
By its authorized signatory:
/s/ Xxxxxx X. Xxxx
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Signature of Authorized Signatory
Xxxxxx X. Xxxx
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Name of Authorized Signatory
CEO
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Position of Authorized Signatory
CONSULTANT
/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
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