EXHIBIT 10.4
CONSULTING AGREEMENT
This Agreement (Agreement) is made and entered into this 16th day of
November, 2001 between EnterNet Inc., a Nevada corporation with its principal
place of business located in Phoenix, AZ ("the Company") and Cactus Consultants
International, an Arizona corporation with his principle place of business
located in Paradise Valley, Arizona ("the Consultant").
In consideration of and for the mutual promises and covenants contained herein,
and for other valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Purpose. The Company hereby retains the Consultant on an exclusive basis
during the term specified to render consulting advice to the Company as the
Company may reasonable request relating to mergers, acquisitions and investor
relations matters upon the terms and conditions set forth herein.
2. Term and Compensation. This Agreement shall be for a period of three (3)
years commencing on the date first written above ("the Engagement Period"). The
Company agrees to remit to the Consultant as compensation for said services on a
monthly basis $10,000.00 plus an agreed upon finders fee for acquisitions or
mergers brought to the Company by the Consultant and successfully closed by the
Company. The Consultant shall also be granted an Option to purchase 500,000
shares of the common stock of the Company (restricted pursuant to Rule 144) at a
strike price of $1.10 per share. The right to exercise said option shall
commence six (6) months from the date hereof and shall expire three (3) years
from the date hereof or upon the cancellation of this Agreement.
3. Duties of Consultant. During the term of this Agreement, the Consultant will
provide the Company with such regular and customary investor relations advice as
is reasonable requested by the Company, provided that the Consultant shall not
be required to undertake duties not reasonable within the scope of the
consulting advisory services contemplated by this Agreement. In the performance
of these duties, the Consultant shall be responsible for the creation of all
news releases and other media materials requested by the Company. It is
understood and acknowledged by the parties that the value of the Consultant's
advice is not measurable in any quantitative manner, and that the Consultant
shall not be obligated to spend any specific amount of time doing so.
4. Relationships with others. The Company acknowledges that the Consultant or
its affiliates is in the business of providing, among other things, consulting
advice (of all types contemplated by this agreement) to others. Nothing herein
contained shall be construed to limit or restrict the Consultant in conducting
such business with respect to others, or in rendering such advise to others. In
connection with the rendering of services hereunder, Consultant has been or will
be furnished with confidential information concerning the Company including, but
not limited to, financial statements and information, cost and expense data,
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production data, trade secrets, marketing and customer data, and such other
information not generally obtained from public or published information or trade
sources. Such information shall be deemed "Confidential Material" and, except as
specifically provided herein shall not be disclosed by Consultant or its
employees or agents without the prior written consent of the Company. In the
event Consultant is required by applicable law or legal process to disclose any
of the Confidential Material, it is agreed that Consultant will deliver to the
Company immediate notice of such requirement prior to disclosure of same to
permit the Company to seek an appropriate protective order and/or waive
compliance with this provision. If, in the absence of a protective order or
receipt of written waiver, Consultant is nonetheless, in the reasonable written
opinion of Consultant's counsel, compelled to disclose any Confidential
Material, Consultant may do so without liability hereunder provided that notice
of such prospective disclosure is delivered to the Company at least five (5)
days prior to actual disclosure. Following the termination of this Agreement,
Consultant shall deliver to the Company all Confidential Material. Neither party
hereto will issue any public announcement. concerning this Agreement without the
approval of the other party provided however that nothing shall prevent the
Company from fulfilling its obligations to disclose the contents of this
Agreement with the U.S. Securities & Exchange Commission (the "SEC).
5. Consultant's Liability. The Consultant agrees to defend, indemnify, and hold
the Company, its officers, directors, employees, advisors, attorneys and agents,
harmless from and shall indemnify the foregoing persons and entities against any
and all costs, expenses and liability (including reasonable attorney's fees paid
in connection with the investigation, and/or defense of said entities or
persons)which may in any way result from a breach of any representation,
warranty or covenant made by the Consultant or from any services rendered by the
Consultant pursuant to or in any connection with this Agreement.
6. Expenses. The Company, upon receipt of appropriate supporting documentation,
shall reimburse the Consultant for any and all reasonable and actual
out-of-pocket expenses incurred in connection with services provided to the
Company, subject in each case to prior written approval of the Company.
7. Limitation Upon the Use of Advice and Services. No person or entity, other
than the Company or any of its subsidiaries or directors or officers of each of
the foregoing, shall be entitled to make use of or rely upon the advice of the
Consultant to be given hereunder. It is clearly understood that the Consultant,
for services rendered under this Agreement, makes no commitment whatsoever as to
recommend or advise its clients to purchase the securities of the Company.
8. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is deemed unlawful or invalid for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of
this Agreement. At the sole discretion of the Company this Agreement may be
terminated with a thirty (30) day notice.
9. Termination. This Agreement may be terminated with a thirty (30) day notice
by either party.
10. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid, or
faxed and confirmed if to the Company, addressed to it at EnterNet Inc. 00000 X.
Xxxxx Xxxxx 0000, Xxxxxxx, XX 00000 and to the Consultant addressed to it at
0000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx, XX 00000. Such notice or other
communication shall be deemed to be given on the date of receipt.
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(b) If the Consultant shall cease to do business, the provisions hereof relating
to duties of the Consultant and all compensation to be paid by the Company as it
applies to the Consultant shall thereupon terminate and cease to be in effect.
(c) This Agreement embodies the entire agreement and understanding between the
Company and the Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior agreements and understandings related to
the central subject matter hereof.
(d) This Agreement has been duly authorized, executed and delivered by and on
behalf of the Company and the Consultant.
(e) The validity, interpretation, and construction of this. Agreement will be
governed by the laws of the State of Nevada applicable to the contract entered
into and performed entirely with said state without regard to the principles of
conflict of laws. Any dispute or controversy between the parties arising in
connection with this Agreement or the subject matter contemplated by this
Agreement shall be resolved by arbitration before a three-member panel of the
American Arbitration Association in accordance with the commercial arbitration
rules of said forum and the Federal Arbitration Act 9 U.S.C. I et seq., with the
resulting award being final and conclusive. Said arbitrators shall be empowered
to award all forms of relief and damages claimed, including but not limited to,
attorney's fees, expenses of litigation and arbitration, exemplary damages, and
prejudgment interest. The parties further agree that any arbitration action
between them shall he heard in Phoenix, Arizona. Notwithstanding anything
contained herein to the contrary, nothing contained herein shall prevent either
party from initiating a civil action for temporary or permanent injunctive and
other equitable relief against the other for breach of this Agreement.
(f) There is no relationship or partnership, agency, employment, franchise or
joint venture between the parties. Neither party has the authority to bind the
other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not. be assigned by either party
without mutual written permission (except by operation of law or merger) and.
shall be upon and inure to the benefit of the parties and their respective
successors, assigns and legal representatives.
(h) Consultant is not a party to any proceeding or action that would prevent it
from performing services pursuant to this Agreement.
(i) Sections 4 and 5 shall survive the expiration or termination of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date hereof.
EnterNet INC.
By /s/Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx, President
Cactus Consultants International, an Arizona corporation
By/s/Xxx Xxxxxxx
--------------------------
Xxx Xxxxxxx, President
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