Consulting Agreement - SunnComm Inc. and Kenneth W. Fagan
CONSULTING AGREEMENT
THIS AGREEMENT, made this 18TH day of August, 2000 by and between: SunnComm
Inc., 668 North 44th Street Suite 220 Phoenix, AZ 85008 (hereinafter referred
to as the "Client") and Kenneth W. Fagan, 408 West Galer Street, Seattle, WA
98119 (herein after referred to as "Consultant")
WITNESSETH THAT:
WHEREAS, CLIENT requires broad corporate consulting services and desires to
engage CONSULTANT to provide such services, as an independent contractor, and
CONSULTANT is agreeable to contract to provide such services and the parties
hereto desire a written document formalizing and defining their relationship
and evidencing the terms and conditions of their agreement,
NOW THEREFORE, intending to be legally bound under the laws of the State of
Arizona, and in consideration of the mutual promises and covenants contained
herein after, the parties have agreed as follows:
1.0 APPOINTMENT
CLIENT hereby appoints CONSULTANT as a business corporate consultant and hereby
retains CONSULTANT, on the terms and conditions of this Agreement. CONSULTANT
accepts such appointment and agrees to render said services upon the terms and
conditions as set forth herein.
CLIENT further appoints CONSULTANT as a Special Advisor to the Board Of
Directors (SAB) for the express purpose of review and advice of technical
matters pursuant to CLIENT requirements, and understands the Board may, at its
discretion, invite him to be added as a member of the Board.
2.0 TERM
The term of this Agreement shall be for One (1) year beginning upon the date
first written herein above and ending twelve (12) months thereafter.
3.0 SERVICES
Consultant agrees with Client that there are two major initiatives to be
achieved if the proposed Company efforts are to succeed:
(a) Consultant will provide direct assistance in strategy development and
partner negotiations to bring the SunX products to market in the audio, video,
publishing, and most significantly, the software industry.
(b) Sign and assist in implementing the roll-out of at least three (3) major
software vendors to a licensing deal. A "major" software vendor shall be
classified as having revenues in excess of $25 million per year.
3.1 CONSULTANT shall act as advisor to Client to provide the following:
(a) Advise management on product development strategies, business relationships
and hiring practices in order to get a product to market quickly with as much
quality and marketability as possible.
(b) Meet with prospective partners and customers to represent the company as a
senior advisor to management.
(c) Advise management and staff on staffing issues related to technology and
marketing positions.
(d) Regular conference calls (suggesting a minimum of a weekly one hour
conference call) to discuss the above matters with the appropriate Client staff
and management.
(e) Attend quarterly board meetings as special advisor to the board (SAB).
3.2 CONSULTANT, in providing the foregoing services shall be responsible for
all cost of providing said services with the exception of; a) out of pocket
expenses as approved in advance by client; and b) travel between CONSULTANTS
office and CLIENTS office and any travel costs for business requested by Client
are the responsibility of the CLIENT. CONSULTANTS compensation set forth under
paragraph 7.0 of this Agreement shall be deemed to include all other cost.
4.0 LIMITATIONS OF SERVICES
The parties hereto recognize that certain responsibilities and obligations are
imposed by governing bodies or jurisdictions in which securities may be traded,
and by the rules of the stock exchanges(s) governing the sale of CLIENTS
securities, CLIENTS in-house "due diligence" or "compliance" procedures and by
the "due diligence" or "compliance" departments of financial institutions which
may deal in CLIENTS securities, accordingly CONSULTANT agrees:
4.1 CONSULTANT will NOT release any financial or other information about the
CLIENT in advance of a proposed meeting or the format or agenda of such a
meeting without CLIENT approval and CLIENT may elect to have a representative
of CLIENT attend such Meeting(s).
4.2 CONSULTANT will NOT conduct any meeting without informing CLIENT in
advance of any such proposed meeting or the format or agenda of such a meeting
and CLIENT may elect to have a representative of CLIENT attend such Meeting(s).
4.3 CONSULTANT will NOT release any information about CLIENT to any selected
or limited person(s), entity, or group if CONSULTANT is aware that such
information has not been generally released or promulgated.
5.0 DUTIES OF CLIENT
5.1 CLIENT shall supply CONSULTANT, on a regular and timely basis, with all
information approved by the CLIENT, for release to the public, about CLIENTS,
management, its products, its operations and its financial reports or
development status of any product. CLIENT shall also be responsible for
alerting CONSULTANT of any facts which would materially affect the accuracy of
information previously provided to CONSULTANT so that CONSULTANT may take
immediate corrective action.
5.2 CLIENT shall contemporaneously notify CONSULTANT if any information being
supplied to CONSULTANT has not be generally released or promulgated.
6.0 REPRESENTATION AND INDEMNIFICATION
6.1 CLIENT shall deemed to make a continuing representation of the accuracy of
any and all material facts, information and data which it supplies to
CONSULTANT and CLIENT acknowledges its awareness that CONSULTANT will rely upon
such continuing representation in disseminating such information.
6.2 CONSULTANT, in the absence of notice in writing from CLIENT, will rely on
the on the continuing accuracy of material, information supplied by CLIENT.
6.3 CLIENT hereby agrees to indemnify CONSULTANT against, and to hold
CONSULTANT harmless from any claims, demands, suits, loss, damages, etc arising
out of CONSULTANT'S reliance upon the accuracy and continuing accuracy of such
facts, material, information unless CONSULTANT has been negligent in fulfilling
the duties and obligations hereunder.
6.4 CONSULTANT agrees to indemnify and hold CLIENT and its
director, officers and employees harmless from any legal action, claims, or
investigations arising out of the conduct of CONSULTANT in performing its
services hereunder unless such activity or activities are required by or done
at the request of CLIENT.
7.0 COMPENSATION
7.1 For acting as a special advisor to the Board, CLIENT shall pay CONSULTANT
on the first of each calendar month, beginning September 1, 2000, the sum of
two thousand dollars ($2,000 USD) during the term of this agreement of any
extension thereof.
7.2 For all special services not within the scope of this Agreement, CLIENT
shall pay CONSULTANT such fee as, and when, the parties shall determine in
advance of the performance of said special services to be provided to CLIENT,
that such services are approved by CLIENT.
7.3 An initial payment of $2,500 was paid upon execution of a Memorandum of
Understanding dated 8/18/00 between the parties of this agreement.
7.4 250,000 shares of common stock shall be made available to CONSULTANT upon
terms and conditions of delivery mutually acceptable to both parties after
CONSULTANT shall seek advice and direction from his Accountant and/or Attorney.
The shares shall be delivered immediately upon formalizing this Agreement
7.5 750,000 options at a strike price equal to the share close price on August
21, 2000 (.22) common stock shall be made available to CONSULTANT upon terms
and conditions of delivery mutually acceptable to both parties after CONSULTANT
shall seek advice and direction from his Accountant and/or Attorney. The shares
shall be delivered in the form decided upon by the parties as follows:
a) 34% to be issued upon the signing of the third (3rd) company licensing
relationship pursuant to paragraph 3.0(b) above;
b) 66% to be issued upon the signing of the Company's first major licensing
agreement with a large Independent Software Vendor (ISV) (such as Oracle,
Microsoft, etc.).
8.0 BILLING AND PAYMENT
The monthly basic fee provided for in Paragraph 7.1 shall be due and payable on
the first (1st) day of each contract month. Payment for out-of-pocket expenses
(Paragraph 7) shall be due and payable upon submission of invoice to CLIENT by
CONSULTANT.
9.0 RELATIONSHIP OF PARTIES
CONSULTANT is an independent contractor, responsible for compensation of its
employees, agent and representatives, as well as all applicable withholding
therefrom and taxes thereon (including unemployment compensation) and all
workmens compensation insurance. This Agreement does not establish any
partnership, joint venture, or other business entity or association between the
parties and neither party is intended to have any interest in the business or
the property of the other.
10.0 TERMINATION
This Agreement may be terminated by either party after twelve (12) months have
lapsed, only in writing at least fifteen (15) business days prior to the
expiration of current contract term. In the absence of notice this Agreement
shall continue month to month until canceled by either party giving the other
thirty (30) days written notice of cancellation.
11.0 ATTORNEY FEES
Should either party default in the terms or conditions of this Agreement and
suit be filed for such default, the prevailing party shall be entitled to
recover all cost incurred as a result of such default including all cost and
reasonable attorney fees, expenses and court cost through trial and appeal.
12.0 WAIVER OF BREACH
The waiver by either party hereto of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by the other party.
13.0 ASSIGNMENT
This Agreement is NOT assignable by Consultant. It shall not be assigned and
if assigned will not inure to the benefit of such successors or assignee's.
This agreement shall be binding upon CLIENT and any successors or assignee's.
14.0 NOTICES
Any notice required or permitted to be given under this Agreement shall be
sufficient if in writing, and is sent by certified mail receipt requested, to
the principal office of the party being notified.
15.0 ENTIRE AGREEMENT
This instrument contains the entire agreement of the parties and may be
modified only by agreement in writing, signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought. This Agreement shall be governed for all purposes by the laws of the
State of Arizona, United States of America. If any provision of this Agreement
is declared void, such provision shall be deemed severed from this Agreement,
which shall otherwise remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement.
FOR SUNNCOMM, INC. FOR: KENNETH W. FAGAN
By: /s/ Peter H. Jacobs By: /s/ Kenneth W. Fagan
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Peter H. Jacobs, President Kenneth W. Fagan, Individually