This Marketing Agreement (the
“Agreement”) entered into this 31
st day of December 2006 (the “Effective
Date”), is by and between, Caneum, Inc., a Nevada
corporation, (hereinafter referred to as “Caneum”), and
Iain Allison, an individual (the
“Contractor”).
Whereas , Caneum desires to
engage the services of the Consultant to market the products and
services provided by Continuum Systems Private Limited, an Indian
company and subsidiary of Caneum (hereinafter
“Continuum”); and
Whereas , the Board of Directors
of Caneum (the “Board”) has approved the engagement of
the Contractor on the terms and conditions set forth in this
Agreement;
Now therefore , in consideration
of the mutual covenants and promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, Caneum agrees
to engage the Contractor, and the Contractor agrees to perform
services for Caneum as an independent contractor, upon the terms
and conditions set forth herein.
The initial term
of this Agreement shall begin on the Effective Date and be for a
period of two (2) years (the “Initial Term”),
unless it is terminated earlier as provided herein. Beginning on
the last date of the Initial Term, and on each anniversary
thereafter, unless it is terminated earlier as provided herein or
Caneum delivers written notice to the Contractor of its intention
not to extend the Agreement at least ninety (90) days before
such anniversary date, the term of this Agreement shall
automatically be extended for one additional year. The restrictive
covenants in Section 9 hereof shall survive the termination of
this Agreement.
Caneum hereby
engages Contractor on a non-exclusive basis as an independent
world-wide marketing contractor for all existing and future
products and services of Continuum listed in Exhibit A (the
“Products”), and Contractor hereby accepts such
engagement pursuant to the terms hereof.
3.
Independent Contractor
Status.
a.
Independent Contractor.
Contractor
enters into this Agreement, and will remain throughout the term of
this Agreement, as an independent contractor. Contractor agrees
that he is not and will not become an employee, partner, agent, or
principal of Caneum while this Agreement is in effect. Contractor
is not entitled to the rights or benefits afforded to
Caneum’s employees, including disability or unemployment
insurance, worker’s compensation, medical insurance, sick
leave, or any other employment benefit. Contractor is responsible
for providing, at Contractor’s expense, disability,
unemployment, worker’s compensation, and other insurance,
training, permits, and licenses for Contractor and for
Contractor’s employees and subcontractors, if any.
b.
Performance of Duties .
Contractor
shall determine the method, details, and means of performing the
duties set forth in this Agreement in a professional and
business-like manner.
Contractor
is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by
Caneum to Contractor for services under this Agreement.
d.
Employees and Subcontractors.
Contractor,
at Contractor’s expense, may use any employee or
subcontractors as Contractor deems necessary to perform the
services required of Contractor by this Agreement. Caneum shall not
control, direct, or supervise Contractor’s employees or
subcontractors in the performance.
Contractor
shall not be required to devote full time, attention, and energy to
the performance of Contractor’s duties pursuant to this
Agreement.
f.
Tools and Instrumentalities.
Contractor
shall supply all tools and instrumentalities required to perform
the services under this Agreement.
Unless
specific permission is received otherwise from a Director of Caneum
or its subsidiaries before an expense is occurred, Contractor shall
be responsible for expenses pertaining to the performance of the
duties set forth in this Agreement, including, but not limited to,
personal and business taxes, insurance, entertainment, travel,
transportation, promotion, and programs.
4.
Use of Continuum
House.
Contractor has
full permission to use Continuum’s Guest House in Delhi when
in India.
As
compensation for the services performed by Contractor hereunder,
Caneum shall pay to Contractor a commission of 8% on all sales up
to US$2,000,000 that he sources and 10% top line commission on all
sales in excess of US$2,000,000.
Caneum
shall grant to the Contractor an incentive bonus of 297,794 shares
of common stock of Caneum on the first anniversary of the Effective
Date of this Agreement (the “First Contingent Incentive
Payment”), of which 14,890 are herby authorized and directed
by Contactor to be issued and delivered to Saffron Capital Merchant
Partners LLC (the “Finder”) to satisfy
Contractor’s obligation under the letter agreement dated
January 16, 2006, with the Finder (the “Finder’s
Agreement”), and 248,162 shares of common stock of Caneum on
the second anniversary of the Effective Date of this Agreement (the
“Second Contingent Incentive Payment”), of which 12,408
shall be issued and delivered to Finder to satisfy
Contractor’s obligation under the Finder’s Agreement,
which incentive bonuses shall be subject to the following terms and
conditions:
(i)
Delivery of Incentive Payments . The First Contingent
Incentive Payment shall be delivered immediately upon calculation
of any adjustment pursuant to §5(b)(ii) or (iii) below,
but in no event later than thirty days following the first
anniversary of the Effective Date. The Second Contingent Incentive
Payment shall be delivered immediately upon calculation of any
adjustment pursuant to §5(b)(ii)
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or
(iii) below, but in no event later than thirty days following
the second anniversary of the Effective Date. All issuances of the
shares of common stock pursuant to this section shall be made in
compliance with applicable exemptions from the registration
requirements under U.S. Securities Laws and qualification of the
issuances under applicable foreign Securities Laws.
(ii)
Adjustment to Incentive Payments Based upon Continuum
Revenues . If Continuum Systems Private Limited, a subsidiary
of Caneum (hereinafter “Continuum”), fails to generate
gross revenue for the twelve-month period ending December 31,
2007 (the “First Year Period”) or for the twelve-month
period ending December 31, 2008 (the “Second Year
Period”) equal to or greater than the gross revenue generated
by Continuum during the twelve-month period ended December 31,
2006 (the “Base Period”), the number of shares of
common stock of Caneum to be delivered to the Contractor for the
First and Second Contingent Incentive Payments shall be
proportionately reduced, whereby the number of shares to be issued
to the Contractor for the First or Second Contingent Incentive
Payment shall be multiplied by a factor, the numerator of which is
the gross revenue for the First Year Period or the Second Year
Period, as applicable, and the denominator of which is the gross
revenue for the Base Period. The amount of “gross
revenue” for purposes of this calculation shall include
revenue generated from all existing and past Continuum customers as
set forth in Annex A, attached hereto and incorporated herein (the
“Customer List”), whether such revenue was received by
Continuum (or Caneum Asia Pacific Pte. Ltd, J.L. Sing Pte. Ltd.,
any other Singapore or other entity or entities organized to
receive revenue generated by Continuum) and any Caneum or its
subsidiaries customer projects completed by Continuum after
December 31, 2006. On or before the close of each calendar
quarter after the Effective Date through the date of the Second
Contingent Incentive Payment, the Contractor shall cause Continuum
to submit to Caneum a list of any new customers developed by
Continuum to be added to the Customer List, which addition shall be
effective on the first day of the calendar quarter following such
submission. The applicable twelve-month gross revenue amount for
any period relevant hereto shall be determined using U.S. Generally
Accepted Accounting Principles and shall be delivered to Buyer
within thirty days following the end of the Base Period, the First
Year Period, and the Second Year Period, respectively. If following
the audit of the financial statements of Continuum (or Caneum Asia
Pacific Pte. Ltd., J.L. Sing Pte. Ltd., any other Singapore or
other entity or entities organized to receive revenue generated by
Continuum), or any of Caneum or its subsidiaries customer projects
completed by Continuum, the Contractor, or Caneum reasonably
determines that these unaudited amounts are incorrect, the
calculations made pursuant to this paragraph shall be adjusted to
reflect the applicable audited amount. If the adjusted audited
amounts result in a fewer number of shares to be delivered to the
Contractor, he shall immediately return to Caneum the number of
shares to reflect the revised number. If the adjusted audited
amounts result in a greater number of shares to be delivered to the
Contractor, Caneum shall immediately instruct its transfer agent to
issue additional shares to reflect the revised number.
(iii)
Adjustment to Incentive Payments upon Termination of
Engagement . If this Agreement is terminated by Caneum for
cause, as defined herein, on or before the date of the First
Contingent Incentive Payment, any unpaid Incentive Payment or
Payments shall be forfeited by the Contractor and neither Caneum
nor Caneum shall have any obligation to issue or deliver to
Contractor any of shares of Caneum common stock for any Contingent
Incentive Payment payable subsequent to such
termination.
(iv)
Change of Control Transaction . In the event that Caneum or
Continuum is subject to a Change of Control, as defined below,
after the date of this Agreement and prior to the date of the First
or Second Contingent Incentive Payment, and the surviving entity
does not assume this Agreements, then, subject to any adjustments
made pursuant to this §5(b), all unpaid Incentive Payment
shall be paid to the Contractor three days prior to the applicable
Change of Control. For purposes of this provision, “Change of
Control” shall mean: (a) a sale or other disposition of
all or any significant portion of the assets of Caneum or Continuum
(other than any such sale or other disposition to Caneum or an
Affiliate of Caneum); (b) a merger or consolidation in which
Caneum is not the surviving entity and in which the shareholders of
Caneum immediately prior to such consolidation or merger own less
than fifty percent (50%) of the surviving entity’s voting
power immediately after the transaction; (c) a reverse merger
in which Caneum is the surviving entity but the shares of
Caneum’s capital stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property,
whether in the form of
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securities,
cash or otherwise, and in which the stockholders of Caneum
immediately prior to such reverse merger own less than fifty
percent (50%) of Caneum’s voting power immediately after the
transaction; (d) an acquisition by any person, entity or group
(excluding any entity controlled by Caneum) of securities of Caneum
representing at least fifty percent (50%) of the voting power
entitled to vote in the election of directors of Caneum;
(e) any transaction pursuant to which Continuum’s
capital stock ceases to be majority owned, directly or indirectly,
by Caneum (other than any such transaction in which Continuum is
merged with and into Caneum or an Affiliate of Caneum); and
(f) any liquidation, dissolution or winding up of Continuum or
Caneum (other than any such liquidation, dissolution or winding up
of Continuum in connection with Continuum’s merger with and
into Caneum or an Affiliate of Caneum).
(v)
Arbitration of Disputes Relating to the Incentive Payments .
Any controversy, dispute or claim arising out of or relating to
this §5(b) or breach thereof shall first be settled through
good faith negotiation. If the dispute cannot be settled through
negotiation, the parties agree to attempt in good faith to settle
the dispute by mediation administered by JAMS. If the parties are
unsuccessful at resolving the dispute through mediation
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