EXHIBIT
10.2
CONSULTING
SERVICES AGREEMENT
THIS CONSULTING
AGREEMENT (the “Agreement”), is made and entered into
as of this 2 nd day of August, 2009 (the "Effective
Date"), by and among WQN, Inc., a Texas corporation (the
“Company”), Quamtel, Inc., (“Parent”) and
iTella, Inc., (hereinafter referred to as
“Consultant”), as amended and restated on November 4th,
2009. The Company and Consultant are sometimes collectively
referred to as “Parties” or individually as a
“Party”.
R E C I T A L
S
WHEREAS, the Company is
an emerging global provider of advanced communications services
specializing in Virtual calling cards with 100% online
distribution, residential and Business phone replacement services
with low cost international termination and Toll Free-Virtual Fax
with unified messaging capabilities utilizing Voice over Internet
Protocol (VOIP) as its core technology component; and
WHEREAS, Consultant has
significant experience with operations, administration, financing,
marketing and day to day operations of the Company; and
WHEREAS, the Company
desires to utilize Consultant’s business expertise and
Consultant desires to provide services to the Company.
NOW, THEREFORE, in
consideration of the mutual promises and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby expressly acknowledged, the
Parties agree as follows:
A G R E E M E N
T
ARTICLE I
APPOINTMENT
1.1
Appointment . The Company hereby engages
Consultant to furnish the services described in Article 3 of this
Agreement, and Consultant hereby accepts such engagement. The
Consultant agrees to use its best efforts to perform its duties,
responsibilities, and obligations set forth in this
Agreement.
1.2
Status of the
Parties .
It is expressly understood and agreed that in the performance
of services under this Agreement, Consultant shall, at all times,
be an independent contractor with respect to the Company, and not
an agent, officer or employee of the Company. Further, it is
expressly understood and agreed by the Parties that nothing
contained in this Agreement is intended to create a joint venture,
partnership, association or other affiliation or like relationship
between the Parties. In no event shall either Party be liable
for the debts or obligations of the other Party. Consultant
understands that it will not be treated as an employee for Federal
tax purposes and that Consultant shall be responsible for all
taxes, Social Security and FICA payments and withholding.
Consultant shall not be entitled or eligible to receive
workman’s compensation insurance, disability or unemployment
insurance benefits or any other employee benefits offered by the
Company to its employees.
ARTICLE II
CONDITIONS AND
TERMS OF AGREEMENT
The Company shall at all
times retain and exercise full control over the operations of the
Company’s business. Nothing in this Agreement shall be
deemed to delegate to Consultant any such control or
responsibility. Consultant shall perform only those functions
set forth in this Agreement or otherwise delegated by the Company,
and shall be solely responsible for determining the manner in which
the services are rendered. The Company shall provide
Consultant with access to the Company's premises and its employees
to enable Consultant to perform its services hereunder.
ARTICLE III
OBLIGATIONS OF
CONSULTANT
Consultant shall devote
its best efforts, skill and sufficient time and attention to carry
out its responsibilities under this Agreement. Consultant
shall report to the Chief Executive Officer of the Company (the
"Chief Executive Officer") and the Board of Directors of the
Company (the "Board of Directors"). Consultant shall provide,
at the reasonable request of the Chief Executive Officer and the
Board of Directors (the "Management"), advanced business strategy,
financing, product development and marketing advice including but
not limited to day to day operations. Consultant shall act in
substantial accordance with all reasonable instructions and
directives of Management. Consultant shall comply with all
written policies and procedures of the Company that are furnished
to it and which are applicable to Company employees in general, in
connection with the performance of services hereunder.
Consultant shall be available, at reasonable times and upon
reasonable notice, to consult with Management.
ARTICLE IV
PAYMENT
4.1
Consideration
. In consideration
of the services provided by Consultant pursuant to this Agreement,
the Company shall pay to Consultant $200,000 on an annual (12
calendar month) basis for a period of six months then after the
first six months starting February 1 st 2010 the annual
basis will increase to $250,000., All payments shall be payable in
equal monthly installments commencing on the Effective Date of
August 2 nd 2009, and the above base compensation shall
be in addition to the profit sharing compensation listed in section
5.2 and other benefits listed in article 5.
4.2
Reasonableness of
Payments .
The amounts paid to Consultant hereunder have been determined
by the Parties in good faith and through arms-length negotiation
and are intended to be based on fair market value for the services
rendered by the Consultant.
ARTICLE V
BUSINESS EXPENSES;
ADDITIONAL BENEFITS
5.1
Reimbursement of
Expenses . The Company shall reimburse
Consultant for business expenses incurred in the performance of its
services pursuant to this Agreement, including, without limitation,
travel, entertainment, and the use of any and all communications
devices without limit. Requests for reimbursement must be in
writing and accompanied by appropriate documentation.
5.2
Revenue
sharing. Consultant shall be entitled
to and is due to receive revenue sharing in such amounts of a total
of nine percent (9%) of all current and future Parent and
Company gross revenues. Gross revenues are
payable at such times as results are reported in quarterly Form
10-Q’s . This benefit is owing and due over the life of the
contract and any renewals.
5.3
Office
Space . The Company shall, at its sole
expense, provide Consultant with a business office suitable for use
by Consultant in the performance of its services at the Company's
executive offices or at a location satisfactory to Consultant
within a ten (10) mile radius of Consultant's address (as stated in
the notice section hereof) and the Company shall pay the costs
relating to the upkeep, maintenance, and use of such office
together with reasonable and customary administrative support at
such office.
5.4
Reserved.
5.5
Health
Benefits. During the term, the Company
shall pay for 100% of the costs to provide up to three employees of
Consultant with “family” coverage for medical and
dental, if permitted by the Company’s health insurance
policy..
5.6
Vehicle.
The Company shall
provide Consultant with a vehicle allowance of $1,000 monthly in
addition to reimbursement for insurance coverage.
5.7
Stock Option
Plan . In consideration of the
execution by Consultant of this Agreement and for services rendered
hereunder, employees of Consultant may be eligible for grants
of stock options pursuant to the Parent’s Equity
Incentive Plan in such amounts as may from
time to time be determined by the Board of Directors of Parent (or
the Stock Option/Compensation Committee), in its sole
discretion..
5.8
Reserved.
ARTICLE VI
TERM OF
AGREEMENT
6.1
Term
. The term of this
Agreement shall be for a period of Five years from the Effective
Date. This Agreement shall automatically renew for successive
one year period if approved by both parties. This Agreement
shall automatically terminate upon (i) failure of the Consultant to
perform its duties hereunder; (ii) failure of Consultant to provide
adequate staffing for its obligations, or (iii) a Change of
Control of the Company, as defined below , in which case
Consultant shall be entitled to receive (a) a lump sum
payment from the Company, within five (5) days after such
termination, equal to the consideration, as defined in Section 4.1,
5.2, 5.4, 5.5 and 5.6 due to Consultant for the remaining term of
this Agreement and (b) any and all stock options granted to
Consultant shall immediately vest, and become exercisable in
accordance with their terms. Sections 5.2, 5.4, 5.5 and 5.6 shall
be calculated throughout the term based on reasonable
projections in conjunction with a six month trailing
average.
6.2
Force
Majeure .
The inability of any Party to commence or complete its
obligations hereunder by the dates required resulting from delays
caused by strikes, walk-outs, insurrection, fires, floods,
hurricane, freight embargoes, epidemics, quarantine restrictions,
any law, act, order, proclamation, decree, regulation, ordinance or
any other acts of any governmental or judicial authority, acts of
God, acts of terrorists, war, emergencies, equipment failures,
shortages or unavailability of materials
