EXHIBIT 4.6
CONSULTANT AGREEMENT
This Agreement ("Agreement") is made and entered into as of the 21st day of
January, 2004, by and between FONEFRIEND, INC., a Delaware corporation (the
"Company") and RR INV HOLDINGS, INC., a Florida corporation (the "Consultant").
WITNESSETH:
WHEREAS, the Consultant is engaged in the business of providing corporate
communication services; and
WHEREAS, the Company is desirous of retaining the Consultant for the
purpose of obtaining investor relations, public relations and corporate
communication services for its clients;
NOW THEREFORE, in consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. TERM. This Agreement shall commence as of the date hereof and shall
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continue in effect for an initial period of six (6) months thereafter unless
earlier terminated in accordance with the provisions hereof. This Agreement may
be terminated by the Company upon five (5) days advance written notice at any
time after the date the Company's registration statement is declared effective
by the Securities and Exchange Commission (the "Effective Date"), in the event
the Consultant is not performing services hereunder in a manner satisfactory to
the Company.
2. SERVICES. The Company hereby engages Consultant for the term
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specified in Paragraph 1 hereof to render such services and advice to the
Company as the Company may request. Company acknowledges the Consultant's
ability to relate information regarding Company's activities is directly related
to the activities of the Company and the information provided by Company to
Consultant. Consultant's duties and services shall include, but will not
necessarily be limited to, providing assistance with, preparation of, and
undertaking the following activities:
(a) Investor relations, including handling and responding to
inquiries from the investment community and/or the Company's stockholders,
whether directly or from the Company's web site;
(b) Corporate communications, as reasonable requested by the
Company;
3. COMPENSATION. For all services rendered by Consultant under this
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Agreement, the Consultant shall be entitled to earn up to an aggregate sum of
nine hundred thousand (900,000) shares of the Company's common stock (the
"Shares"), subject to the following:
(a) Within five (5) business days from the date hereof, the
Company shall deliver four certificates representing the total amount of the
Shares, subject to a restrictive endorsement in accordance with Rule 144 of the
Securities Act of 1933, as amended (the "Securities Act"), to an escrow account
to be maintained by the Law Offices of Xxxxxx X. Xxxxxx. The individual
certificates will be deemed earned by Consultant upon their release from the
escrow account in accordance with the following schedule:
(i) the first certificate representing four hundred thousand
(400,000) shares shall be released to Consultant on the Effective Date of the
Company's registration under Form S-3; and
(ii) contingent upon Consultant's continued performance, and
provided this Agreement has not been terminated, the second certificate
representing an additional two hundred thousand (200,000) shares be released to
Consultant on the date which is forty five (45) days after the Effective Date;
and
(iii) contingent upon Consultant's continued performance, and
provided this Agreement has not been terminated, the third certificate
representing an additional two hundred thousand (200,000) shares be released to
Consultant on the date which is ninety (90) days after the Effective Date; and
(iv) contingent upon Consultant's continued performance, and
provided this Agreement has not been terminated, the fourth and last certificate
representing an additional one hundred thousand (100,000) shares be released to
Consultant on the date which is one hundred twenty (120) days after the
Effective Date.
(c) In the event this Agreement is terminated by the Company for
cause in accordance with Paragraph 1, above, all Shares remaining in the escrow
account, which have not been released to Consultant, shall be returned to the
Company and Consultant will have no further claim for Compensation hereunder.
(d) All certificates released from the escrow account and
delivered to Consultant shall be issued as "freely tradable" securities, without
restrictive endorsement, having been registered under the Company's registration
statement filed under Form S-3.
4. REPRESENTATIONS AND WARRANTIES. Consultant hereby represents,
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warrants and covenants and agrees with the Company to the following:
(a) Investment Intent. Consultant is receiving the Shares for its
own account (consultant), for investment only and not with a view to, or for
sale in connection with, a distribution thereof or any part thereof, within the
meaning of the Securities Act, and the rules and regulations promulgated there
under, or any applicable state securities or blue-sky laws;
(b) Intent to Transfer. Consultant is not party to or subject to
or bound by any contract, undertaking, agreement or arrangement with any person
to sell or pledge the Shares, any part thereof to any person, and has no present
intention to enter into such a contract, undertaking, agreement or arrangement.
(c) Sophistication of Consultant. Consultant has evaluated the
merits and risks of acquiring the Shares, that has such knowledge and experience
in financial and business matters that the undersigned is capable of evaluating
the merits and risks of such acquisition, is aware of and has considered the
financial risks and financial hazards of acquiring the Shares and is able to
bear the economic risk of acquiring the Share, including the possibility of a
complete loss with respect thereto;
(d) Access to Information. Consultant has had access to such
information regarding the business and finances of the Company, the receipt an
careful reading of which is hereby acknowledged by Consultant, and has been
provided the opportunity to discuss with the Company's management the business,
affairs and financial condition of the Company and such other matters with
respect to the Company as would concern a reasonable person considering the
transactions contemplated by this Agreement and/or concerned with the operations
of the Company including, without limitation, pursuant to a meeting and/or
discussions with management of the Company;
(e) No Guarantees. It never has been represented, guaranteed or
warranted to Company by the Consultant, or any of its officers, directors,
agents, representatives or employees, or any other person, expressly or by
implication, that:
(i) Any gain will be realized by the Company from
Consultant's investment in the Shares;
(ii) There will be any approximate or exact length of time
that Consultant will be required to remain as a holder of Shares; or
(iii) The past performance or experience on the part of the
Company, its predecessors or of any other person, will in any way indicate any
future results of the Company;
(f) No Other Representations, Warranties, Covenants or Agreements
of the Company. Except as set forth in this Agreement, the Company has not made
any representation, warranty, covenant or agreement with respect to the matters
contained herein, and Consultant has not and will not rely on any
representation, warranty, covenant or agreement except as set forth in this
Agreement;
(g) High Degree of Investment Risk. The investment in the Shares
involves a high degree of risk and may result in a loss of the entire amount
invested; there is no assurance that the Company's operations will be profitable
in the future; and there is no assurance that a public market for shares of
Common Stock will continue to exist;
(h) State of Principal Place of Business. The address set forth at
the bottom hereof is Consultant's true and correct principal place of business,
and Consultant has no present intention of relocating its principal place of
business to any other country, state or jurisdiction;
(i) No Purchaser Representative. Consultant has not authorized any
person or institution to act as the undersigned's "purchaser representative" (as
such term is defined in Rule 501 of Regulation D) in connection's investment in
Shares, and
(j) No General Solicitation. Consultant has not received any
general solicitation of general advertising regarding the purchase of any of the
Shares.
(k) The Consultant. Agrees and warrants there will be no short
selling in, or against, the Company's securities by Consultant.
(l} Confidentiality; Non-Circumvention. The Consultant
acknowledges that any and all knowledge or information concerning the Company,
its affairs and business activity obtained by Consultant, its principals,
employees and/or contractors in the course of its engagement hereunder is
strictly confidential, and the Consultant covenants not to reveal same to any
other persons and/or entities, including, but not limited to, competitors of the
Company and that it will not impart any such knowledge to anyone whosoever
during the term hereof or anytime thereafter. Further, the Consultant agrees not
to partake, either itself or in conjunction with other third parties, in any
activities or dealings that would circumvent, bypass or obviate the business or
economic opportunities or best interests of the Company. All information,
including but not limited to business operations, software and other
intellectual property rights, pertaining to the Company which is forwarded to,
or otherwise obtained by the Consultant hereunder, is to be received in strict
confidence and used only for the purposes of this Agreement and not in
circumvention of any business or economic opportunity or business relationship
of the Company. The provisions of this Paragraph shall survive the termination
of this Agreement.
5. COMPANY CLIENT'S INFORMATION. The Company acknowledges that all
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opinions and advice (written or oral) given by Consultant to the Company in
connection with Consultant's engagement are intended solely for the benefit and
use of the Company (including its officers and directors) in considering the
transaction to which they relate, and the Company agrees that no person or
entity other than the Company (including its officers and directors) shall be
entitled to make sure of or rely upon the advice of Consultant to be give here
under, and no such opinion or advice shall be used for any manner or for any
purpose, nor may the Company make any public references to Consultant, or use
the Consultant's name in any annual reports or any other reports or releases of
the Company, without Consultant's prior written consent. The Company recognizes
and confirms that, in advising the Company here under, Consultant will use and
rely on data, material and other information furnished to Consultant by the
Company, without independently verifying the accuracy, completeness or veracity
of same.
6. OTHER CONSULTING CLIENTS. The Company acknowledges that Consultant
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or its affiliates are in business of providing services and consulting advice to
others. Nothing herein contained shall be construed to limit or restrict
Consultant in conducting such business with others, or in rendering such advice
to others, provide that Consultant shall not take any action, to the best of is
knowledge and belief, that would be contrary to the interests of the Company.
7. INDEMNIFICATION.
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(a) The Company agrees to indemnify and hold harmless Consultant,
its employees, directors, officers, agents, representatives and controlling
persons from and against any and all losses, claims, damages, liabilities,
suits, actions, proceedings, costs and expenses (collectively, "Damages"),
including, without limitation, reasonable attorney fees and expenses, as and
when incurred, if such Damages were directly caused by, relating to, based upon
or arising out of the rendering by Consultant of services pursuant to this
Agreement, so long as Consultant shall not have engaged in illegal, intentional
or willful misconduct, or shall not have been grossly negligent, in connection
with the services provided which form the basis of the claim for
indemnification. This paragraph shall survive the termination of this Agreement.
(b) The Consultant agrees to indemnify and hold harmless the
Company, its employees, directors, officers, agents, representatives and
controlling persons from and against any and all Damages, including, without
limitation, reasonable attorney fees and expenses, as and when incurred, if such
Damages were directly caused by, relating to, based upon or arising out of the
rendering by Consultant of services pursuant to this Agreement, if Consultant
shall have engaged in illegal, intentional or willful misconduct, or shall have
been grossly negligent, in connection with the services provided which form the
basis of the claim for indemnification. This paragraph shall survive the
termination of this Agreement.
8. INDEPENDENT CONTRACTOR. Consultant shall perform its services here
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under as an Independent Contractor and not as an employee or agent of the
Company or any affiliate thereof. Consultant shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any matter, except as
may be expressly agreed to by the Company in writing from time to time.
9. ARBITRATION. In the event of any dispute under this Agreement, then
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and in such event, each party agrees that the same shall be submitted to the
American Arbitration Association ("AAA") in South Florida Region, for its
decision and determination in accordance with it rules and regulations then in
effect. Each of the parties agrees that the decision and/or award made by the
AAA may be entered as judgment of the Courts of The State of Florida, and shall
be enforceable as such.
10. NOTICES. Any notice to be given by either party to the other here
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under shall be sufficient if in writing and sent by (a) nationally recognized
overnight courier, (b) facsimile transmission electronically confirmed, (c) hand
delivery against receipt, (d) registered or certified mail, return receipt
requested, in each case addressed to such party at the address specified below:
If to Company: FoneFriend, Inc.
Attn: President
0000 Xxxxx Xxxxxx Xxxx, Xxxxx X
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
If to Consultant: RR INV Holdings, Inc.
Attn: Xxxxxx Xxxx
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Or, such other address as either party may have given notice of to the
other party, from time to time, in writing.
11. MISCELLANEOUS. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof. No provision of
this Agreement may be amended, modified or waived, except in writing signed by
both parties. This Agreement shall be biding upon and inure to the benefit of
each of the parties and their respective successors, legal representatives and
assigns. Either party without the written consent of the other party shall not
assign this Agreement. This Agreement may be executed in counterparts. This
Agreement shall be construed in accordance with the laws of the State of
Florida, without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duty executed on the day of the year first above written.
"CONSULTANT"
RR INV HOLDINGS, INC.
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
Date: January 21, 2004
"COMPANY"
FONEFRIEND, INC.
By: /s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
Title: President
Date: January 21, 2004
