EXHIBIT 4.6
Consulting Agreement
This Agreement is Effective as of this 23rd day of March, 2001, by and between
SEMOTUS SOLUTIONS, INC., a Nevada corporation (hereinafter "Semotus"), with an
address at1735 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and VISION
SELLING, LLC, a New Jersey Limited Liability Company, (hereinafter "Consultant"
or "Independent Contractor"), with an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ # ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, the Consultant desires to provide services to Semotus, and Semotus
desires to retain Consultant to provide such services for the compensation as
set forth in Section 2 and in accordance with the terms and conditions specified
in this Agreement.
NOW, THEREFORE, Consultant and Semotus hereby agree as follows:
Such services shall be rendered on a non-exclusive basis. Consultant shall act
as an independent contractor to Semotus and not as an agent, employee, partner,
affiliate, or co-joint venturer of Semotus. The terms of this Agreement are set
out below:
1. Services. Independent Contractor will perform specific sales functions and
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services. The scope of Independent Contractor's services hereunder shall be
limited those described in Exhibit A; Independent Contractor's services does not
extend to directly and/or solely presenting to or negotiating with Customers.
Reports. Consultant shall furnish Semotus with such written reports of the
services performed hereunder as Semotus shall reasonably require. Any reports
prepared and furnished by Consultant to Semotus hereunder shall be the
property of Semotus and may be used by Semotus without an additional charge.
2. Compensation.
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a. Semotus agrees to pay Independent Contractor for its services in
the form of shares of restricted common stock, not to exceed a
total amount of 30,700 shares. Semotus shall also file a Form S-3
Registration Statement (the "S-3") and include such shares in it.
After such shares are registered under the ▇-▇, ▇▇▇▇▇▇▇▇▇▇▇
Contractor shall have the right to sell, pursuant to the S-3, seven
thousand dollars ($7,000) worth of such shares per month; the value
of the shares shall be based on the closing price of Semotus'
common stock on the last day of each month.
b. Semotus also agrees to issue Independent Contractor a total of
fifty thousand (50,000) options to purchase shares of Semotus
common stock with an exercise price equal to the Effective Date of
this Agreement, and with contingent vesting, based on the revenues
earned by Semotus, Cross Communications, Inc. and Wares On The Web,
Inc. (together, the "Combined Entities"), and having the following
vesting schedule:
i. Fifty percent (50%), or twenty five thousand (25,000)
options, shall vest at the end of the six month anniversary
of the grant, if the Combined Entities' revenues in one
full month, between and including Month's one through six,
are greater than four hundred thousand dollars ($400,000);
ii. Fifty percent (50%), or twenty five thousand (25,000)
options, shall vest at the first annual anniversary date of
the grant if the Combined Entities' revenues in one full
month, between and including Month's seven through twelve,
are greater than seven hundred and fifty thousand dollars
($750,000).
Months one through twelve, above, are considered the full months,
respectively, after the Effective Date of this Agreement.
The compensation specified in this Paragraph 2 (a) and (b) shall
constitute Consultant's sole compensation hereunder.
3. Expenses. Independent Contractor shall be responsible for all costs and
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expenses incident to the performance of the services described hereunder,
including but not limited to, all costs of its employees'
salaries, equipment, hardware, software, fees, fines, licenses, taxes,
communications, travel and all other costs of doing business. Subject to
supervisor pre-approval, Semotus may reimburse Independent Contractor for out-
of-pocket expenses incurred by Independent Contractor in performing its services
hereunder.
4. Term and Termination. The term of this Agreement shall commence on the date
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hereof and end twelve months thereafter. This Agreement may be renewed upon
mutual written agreement of Independent Contractor and Semotus. Either party
shall have the right to terminate this Agreement only during the first 90 days
from the Effective date of this Agreement; any termination must be with 30 days
prior written notice. Semotus agrees to pay Independent Contractor any fees
specified in paragraph 2(a) if the events specified therein shall occur during
the term of this Agreement. Independent Contractor agrees to return any unearned
shares of stock that it was issued, or the money value of such shares (based on
the closing price of the stock on the date Independent Contractor terminates or
ceases work under this Agreement for any reason) to Semotus should Independent
Contractor terminate this Agreement or cease providing its services under this
Agreement for any reason. Any obligation pursuant to this Paragraph 4 shall
survive the termination or expiration of this Agreement.
5. Non-Disclosure. Each party agrees that, except as compelled by law, it will
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not disclose the services or advice to be provided by Independent Contractor
under this Agreement publicly or to any third party without the prior written
approval of the other party.
6. No Authority to Bind. In providing the Services, Independent Contractor
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acknowledges that it shall have no authority to bind Semotus in any respect.
7. Confidentiality. Any and all information, in any form, other than
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information intended for public distribution, given by Semotus to Independent
Contractor shall be treated as confidential, whether or not it is labeled as
such. This information shall be treated in a manner no less restrictive than
the strictest procedures used by Independent Contractor to protect its own
confidential information. Independent Contractor agrees not to disclose this
information to others except to those employees, directors, agents, or
representatives who are required to have the information in order to carry out
the contemplated purposes described in this Agreement. Such purposes include
dissemination of the business plan and other appropriate materials to potential
acquisition candidates. Independent Contractor agrees to notify Semotus in
writing of any misuse or misappropriation of such confidential information.
Independent Contractor's obligation under this paragraph shall survive for two
years after the termination of this Agreement. Any materials or documents which
have been furnished to Independent Contractor in accordance to this Agreement
will be promptly returned at Semotus's request, or upon termination of the
Agreement.
8. Indemnification. Independent Contractor agrees to indemnify, defend and
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hold harmless Semotus, its affiliates, customers, employees, successors and
assigns (all referred to as "Semotus") from and against any and all losses,
damages, claims and expenses (including reasonable attorney's fees) that arise
out of or result from any acts, statements, representations or guarantees made
to a third party by Independent Contractor that are beyond the scope of this
Agreement. Semotus agrees to indemnify, defend and hold harmless Independent
Contractor, its affiliates, customers, employees, successors and assigns (all
referred to as "Semotus") from and against any and all losses, damages, claims
and expenses (including reasonable attorney's fees) that arise out of or result
from any acts, statements, representations or guarantees made to a third party
by Semotus that are beyond the scope of this Agreement.
9. Notice. All notices and other communications provided for hereunder shall
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be in writing and shall be mailed, faxed or e-mailed to such party at its
address as set forth below or at such other address as shall be designated by
such party in a written notice complying with the terms set out in this
Paragraph 8. Such notices shall be effective upon receipt.
10. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California without regard to the
conflict of laws or provisions thereof and may not be amended or modified except
in a writing signed by both parties.
11. Binding Effect; Assignment. This Agreement and all rights, liabilities and
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obligations hereunder shall be binding upon and inure to the benefit of each
party's successors, but may not be assigned without the prior written approval
of the other party.
12. Entire Agreement. This Agreement represents the entire Agreement between
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the parties and may not be modified or amended except in writing signed by both
parties.
13. Severability. If any provision of this Agreement shall be held or made
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invalid by a status, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed to be severable.
14. Arbitration. In the event a disagreement between the parties cannot be
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resolved, the parties mutually agree to resolve any conflicts through
arbitration proceedings. Such arbitration shall be conducted before a single
arbitrator and, except as otherwise set forth herein, shall be conducted in
accordance with the then-existing rules of the Arbitration Association and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof; provided, however, that the law applicable to any
such controversy shall be the law of California, regardless of its or any
jurisdiction's choice of law principle. Arbitration shall take place at San
Jose, California or any other location mutually agreeable to the parties. The
arbitration award shall be specifically enforceable; judgment upon any
arbitration award may be entered in any court with personal jurisdiction over
the parties and subject matter of the disputes.
15. Miscellaneous. As used herein, references in the singular shall, as and if
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appropriate, include the plural.
16. Captions. All paragraph headings are for convenience of reference only,
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and do not form part of this Agreement and shall not affect in any way the
meaning or interpretation for this Agreement.
17. Survival. Sections 4 through 14 shall survive the termination or expiration
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of this Agreement.
18. Fax Signatures. The parties hereby agree that signatures transmitted and
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received via facsimile or other electronic means shall be treated for all
purposes of this Agreement as original signatures and shall be deemed valid,
binding and enforceable by and against both parties.
19. Covenant Not-To-Hire-Consultants-Employees. Both Parties agree that, during
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the term of this Agreement and / or the one (1) year period following the
termination thereof, howsoever arising, neither Party shall, whether directly or
indirectly, in any way for its own account of for the account or any other
person, venture, firm, business, corporation or enterprise, as employee,
officer, director, stockholder, proprietor, partner, or in any other capacity,
offer employment to any employee, agent or representative of the other Party or
attempt to induce or cooperate with any other party in an attempt to induce or
entice any employee, agent or representative of the other Party to leave the
employ of such Party.
20. Provision of a Wireless Device and Office Space. Semotus shall provide the
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Independent Contractor's President with one RIM 957 including its basic monthly
operating fees. Consultant will have the option to use a dedicated private
office at the Wares On The Web office in New Jersey, as needed, but Consultant
shall work at Consultant's office otherwise.
21. Promotional. Consultant may refer to this Agreement and the fact that it is
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a consultant for Semotus in its normal promotional efforts, literature, web
sites and email communications. Press Releases shall require prior contextual
approval, in writing, by Semotus.
Please confirm that the foregoing correctly sets forth our agreement by signing
the enclosed letters in the space provided and returning them to use for
execution, whereupon we will send you a fully executed original letter which
shall constitute a binding agreement as of the date first written above.
Vision Selling, LLC
By:_______________________
▇▇▇▇▇ ▇▇▇▇▇
President
Date:_____________________
Agreed to and accepted
as of the above date.
Semotus Solutions, Inc.
By:_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Date:_____________________________
EXHIBIT A
SERVICES
Consultant shall perform the following sales services. Services
include, but are not limited to:
(a) Developing sales strategies and tactics in the form of goals,
models and leadership.
(b) Assisting in hiring and developing Sales & Marketing staff. (All
final hiring decisions will be made by Semotus, and Semotus
shall do any actual hiring itself)
(c) Providing strategic assistance to the President of Semotus.
(d) Participate in executive operations involving financing, mergers
and other key planning issues effecting sales planning,
execution and valuation.
(e) Developing Service Level Agreements with Sales & Marketing
vendors, including, but not limited to:
I. Sales Force Automation vendor(s)
II. Lead Generation or Telesales vendor(s)
III. Staff Recruitment agencies
IV. Professional Sales Trainers for Sales & Marketing
Personnel
V. Sales Team Effectiveness and Empowerment Training
(All Agreements developed by Consultant shall not be binding and
shall require final approval by Semotus. Consultant shall not
have the authority to bind Semotus in any way, as set forth in
Section 8 of this Agreement.)