EXHIBIT 4.5
Insightful Investor LLC
CONSULTING AGREEMENT
This Agreement entered into as of September 17, 2002 acknowledges and confirms
the terms of our public relations agreement (the "Agreement") as follows:
US Dataworks, Inc. (a Nevada corporation), with a mailing address located at
0000 Xxxxxxxxx Xx., #000, Xxxxxxx, XX 00000 (the "Company"), hereby engages
Insightful Investor LLC., 00 Xxxxxxxx - Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx,
00000 (the "Consultant") and Consultant hereby agrees to render services to the
Company as its public relations consultant.
2. During the Term of this Agreement:
(a) Consultant shall provide to Company consulting services designed
to assist Company in disseminating information concerning the
business of US Dataworks, Inc. (UDW) to the investing public by
use of the Internet, including a "Special Alert" on the Insightful
Investor or affiliated web site, and e-mails to its database every
time Company issues a press release, subject to the reasonable
discretion of the Consultant and providing that Consultant rejects
no more than 10% of Company's press releases. Company acknowledges
that this profile will be e-mailed to only a portion of
Consultants' database, but not less than 1,500,000 e-mail
addresses. Consultant shall disseminate no information regarding
the Company other than information that is either (i) identified
by the Company as approved for dissemination, in the form
approved; or (ii) otherwise publicly released by the Company at or
prior to the time of dissemination.
(b) The services of Consultant are non-exclusive and subject to
paragraph 5 hereof. Consultant may render services of the same or
similar nature, as herein described, in an entity whose business
is in competition with the Company, directly or indirectly, and
Company may engage other public relations consultants.
(c) Such other services as described in the proposal dated August 23,
2002 specifically related to the Maintenance program and
Introduction of broker-dealer research.
(d) Consultant is not providing capital markets services, nor capital
raising, nor merger and acquisition advisory or any related
services.
(e) Work with an agreed upon independent research agent.
3. The Company shall pay to Consultant for its services hereunder as follows:
Insightful Investor LLC. or affiliates and/or agents of Insightful Investor LLC,
will receive from the Company.
(a) Either $150,000 in cash or seven hundred and fifty thousand
(750,000) fully registered unrestricted free trading shares US
Dataworks, Inc. (UDW) on a pre-split and/or reverse basis. The
shares shall be delivered 375,000 with appropriate
registration rights and to be registered within 6 months of the
execution of this agreement. The remaining 375,000 shares shall be
received from an existing investor in the Company plus
(b) 150,000 warrants to purchase common stock with a 5 year expiration
and an exercise price of $0.20 per share with appropriate
registration and dilution protection for splits, stock dividends,
etc.
(c) All such amounts in 3(a) and 3(b) above to be delivered prior to
launch of the communication program.
(d) Monthly maintenance subscription fee of $2,500 per month beginning
on the first day of the 7 month of this engagement.
(e) Incentive compensation of $50,000 in cash or stock plus 50,000 5
year warrants with an exercise price of $0.20 per share with
appropriate registration rights and dilution protection for each
broker-dealer research report introduced by Consultant.
(f) Reimbursement for out-of-pocket expenses of $5,000 and any amounts
over the limit by prior written approval from the Company.
4. The term of this Agreement shall be for 18 months commencing on the date of
execution of this Agreement.
5. Consultant will not disclose to any other person, firm, or corporation, nor
use for its own benefit, during or after the term of this Agreement, any trade
secrets of other information designated as confidential by the Company which is
acquired by Consultant in the course of performing services hereunder. (A trade
secret is information not generally known to the trade which gives the Company
an advantage over its competitors. Trade secrets can include, by way of example,
products or services under development, production methods and processes,
sources of supply, customer lists, marketing plans and information concerning
the filing or pendency of patent applications. In fact consultant shall provide
all of its services without any access to any confidential information and shall
provide its services based upon publicly available information or in reliance on
other third party research analysts. In the event Consultant is introduced to
any confidential information, Consultant shall observe the conditions of this
clause.
6. Each of the Company and the Consultant agree to indemnify and hold each
other, each other's affiliates, control, persons, officers, employees, attorneys
and agents (collectively, the "Indemnified Persons") harmless from and against
all losses, claims, damages, liabilities, costs or expenses including reasonable
attorney's and accountants' fees arising out of the performance of this
Agreement, whether or not the other is a party to such dispute. Each of the
Company and the Consultant agree that it shall also reimburse the other party's
Indemnified Persons for any attorney's fees and costs incurred in enforcing this
indemnification against the indemnifying party. This indemnity shall not apply,
however, where a court of competent jurisdiction has made a final determination
that such indemnifying party engaged in gross recklessness, willful misconduct
or any unlawful act in the performance of its services hereunder which give rise
to the loss, claim, damage, liability, cost or expense sought to be recovered
hereunder. (But pending any such final determination, the indemnification and
reimbursement provision of this Agreement shall apply and the indemnifying party
shall perform its obligations hereunder to reimburse the Indemnified Persons for
their attorney's fees and expenses).
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The provisions of this paragraph (6) shall survive the termination and
expiration of this Agreement.
7. Company agrees not to disclose this Agreement to any third parties, except as
required by law to effectuate the terms of this Agreement, until after the
Special Alert is posted in the Insightful Investors LLC or affiliate web site.
8. This Agreement sets forth the entire understanding of the parties relating to
the subject matter hereof, and supersedes and cancels any prior communications,
understanding, and agreements between the parties. This Agreement cannot be
modified or changed, nor can be any of its provisions be waived, except by
written agreement signed by all parties.
9. This Agreement shall be governed by the laws of the State of California. Any
dispute arising out of this Agreement shall be adjudicated in the courts of the
State of California and in the federal court in the State of California, the and
Company hereby agrees that service of process upon it by registered mail at the
address shown in this Agreement shall be deemed adequate and lawful.
10. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
11. In the event either party is required to engage an attorney to protect or
enforce its rights under this agreement or pursue such other actions as may be
necessary to do actions of the parties, such prevailing party shall be
reimbursed for all attorneys fees and any related expenditures to such actions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of September 10,
2002.
Insightful Investor LLC
By: /s/ Xxxxx Xxxxxxxxxx
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Title: Authorized Agent
ACCEPTED AND AGREED to this
17th day of September, 2002
Xxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: CEO
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