CONSULTING AGREEMENT
This Agreement is made and entered into on the 9th day of
November, 2000 between eConnect ("Company"), a Nevada
corporation, having offices at 2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000 and Xxxxxxx Xxxxxxxx Xx.
("Consultant"), with offices at 00000 XX 00xx. Xx., Xxxxx,
Xxxxxxx 00000.
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. CONSULTANT OBLIGATIONS
The Consultant shall assist Encrypt2Trade by acting as general
advisor and consultant with duties and responsibilities to
include, but not limited to the following:
a. Identifying, screening and qualifying of prospective clearing
firm clients, strategic partners, management personnel and
developing the office of supervisory jurisdiction (OSJ) offices.
b. Arranging introductions and attend initial meetings between
the aforementioned prospective buyers or merger candidates and
Company's representative.
c. Assisting the Company in negotiating the terms of these
various transactions.
d. Assisting the Company in the assembly of information, which
may be required for presentation to the prospective take-over and
strategic merger candidate, or by them as a condition of
investigating or entering into a transaction.
e. Assisting the Company with potential merger or acquisition
candidates for international markets.
2. WORK FOR HIRE
a. It is the intention of the parties hereto that all rights,
including without limitation copyright in any reports, surveys,
marketing promotional and collateral materials prepared by the
Consultant pursuant to the terms of this Agreement, or otherwise
for Company (hereinafter "the Work") vest in Company. The parties
expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be
considered a "Work Made for Hire" within the meaning of the
copyright laws of the United States and that Company is entitled
as author to the copyright and all other rights therein,
throughout the world, including, but not limited to, the right to
make such changes therein and such uses thereof, as it may
determine in its sole and absolute discretion.
b. If, for any reason, the Work is not considered a work made for
hire under the copyright law, then the Consultant hereby grants
and assigns to Company, its successors and assigns, all of its
rights, title, and interest in and to the Work, including, but
not limited to, the copyright therein throughout the world (and
any renewal, extension or reversion copyright now or hereafter
provided), and all other rights therein of any nature whatsoever,
whether now known or hereafter devised, including, but not
limited to the right to make such changes therein, and such uses
thereof, as Company may determine.
3. INJUNCTIVE RELIEF.
Consultant acknowledges that the injury to Company resulting from
any violation by it of any of the covenants contained in this
Agreement will be of such a character that it cannot be
adequately compensated by money damages, and, accordingly,
Company may, in addition to pursuing its other remedies, obtain
an injunction from any court having jurisdiction of the matter
restraining any such violation; and no bond or other security
shall be required in connection with such injunction.
4. COMPENSATION.
a. Company shall pay the Consultant per the following fee
schedule:
1. The Company will issue to Consultant Two Hundred Thousand
(200,000) shares of ECNC free trading S-8 stock and a Warrant
("Warrants") to purchase Two Hundred and Fifty Thousand (250,000)
shares of ECNC's common stock with a strike price of $1.00 per
share, exercisable for a period of three years.
2. The Company will issue to Consultant Five Hundred Thousand
(500,000) shares of ECNC free trading S-8 stock for adding the
first five (5) broker dealers to clear trades through Xxxx &
Xxxxxxx, with a minimum revenue goal of $2MM per broker dealer.
The stock will be held in escrow and will be release upon
Consultant bringing five (5) broker dealers to clear trades
through Xxxx & Xxxxxxx.
3. The Company will issue to Consultant a Warrant to purchase Two
Hundred and Fifty Thousand (250,000) shares of ECNC unrestricted
stock with a strike price of $1.00 per share, for bringing and
setting up each individual OSJ office, staffed with a minimum ten
brokers, including principals with 24, 7, 66 licenses and retail
brokers.
This compensation will apply for bringing up to five (5) OSJ
offices. The Warrants will be exercisable for a period of three
years.
4. The Company will issue to Consultant Five Hundred Thousand
(500,000) restricted 144 ECNC stock with piggyback registration
rights for bringing $20MM in combine revenue to the new entity.
Company will cause the registration of said shares to be included
in it's current SB-2A filling. The stock will be held in escrow
and will be release upon Consultant reaching the revenue goal.
5. The Company will issue to Consultant Five Hundred Thousand
(500,000) restricted 144 ECNC stock with piggyback registration
rights and a Warrant to purchase Two Hundred and Fifty Thousand
(250,000) shares of ECNC unrestricted stock with a strike price
of $1.00 per share for bringing $40MM in combine revenue to the
new entity. The stock will be held in escrow and will be release
upon Consultant reaching the revenue goal. The Warrants will be
exercisable for a period of three years.
6. The Company will issue to Consultant a Warrant to purchase Two
Hundred and Fifty Thousand (250,000) shares of ECNC unrestricted
stock with a strike price of $1.00 per share for bringing $60MM
in combine revenue to the new entity. The Warrants will be
exercisable for a period of three years.
7. The Company will issue to Consultant a Warrant to purchase One
Hundred and Fifty Thousand (150,000) shares of ECNC unrestricted
stock with a strike price of $1.00 per share for bringing $80MM
in combine revenue to the new entity. The Warrants will be
exercisable for a period of three years.
8. The Company will issue to Consultant a Warrant to purchase One
Hundred Thousand (100,000) shares of ECNC unrestricted stock with
a strike price of $1.00 per share for bringing $100MM in combine
revenue to the new entity. The Warrants will be exercisable for
a period of three years.
9. The Company will place a total of 1,750,000 restricted shares
in escrow to be then converted with Piggyback registration in the
next SB2 filing but shares will still remain in escrow until
released upon each level of revenue performance.
The Consultant shall provide to the Company on the first day of
every month an outline report as to the Services that will be
performed that month.
5. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information"
shall mean any information relating to the business of Company or
any entity in which Company has a controlling interest and shall
include (but shall not be limited to) information encompassed in
all drawings, designs, programs, plans, formulas, proposals, marketing and
sales plans, financial information, costs, pricing information, customer
information, and all methods, concepts or ideas in or reasonably related to
the business of Company.
b. Consultant agrees to regard and preserve as confidential, all
proprietary information, whether Consultant has such information
in memory or in writing or other physical form. Consultant shall
not, without written authority from Company to do so, directly or
indirectly, use for the benefit or purposes, nor disclose to others,
either during the term of its engagement hereunder or thereafter, except
as required by the conditions of Consultant's engagement hereunder,
any proprietary information.
c. Consultant shall not disclose any reports, recommendations,
conclusions or other results of the Services or the existence or
the subject matter of this contract without the prior written
consent of Company. In Consultant's performance hereunder,
Consultant shall comply with all legal obligations it may now or
hereafter have respecting the information or other property of
any other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth
in this Paragraph are being given to Company in connection with
the engagement of the Consultant by Company and that such
covenants are intended to protect Company against the competition
by the Consultant, within the terms stated, to the fullest extent
deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant
are beyond those permitted by law, such limitations, both as to
time and geographical area, shall be, and be deemed to be,
reduced in scope and effect to the maximum extent permitted by
law.
e. The foregoing obligations of this Paragraph shall not apply to
any part of the information that (i) has been disclosed in
publicly available sources of information, (ii) is, through no
fault of the Consultant, hereafter disclosed in publicly
available sources of information, (iii) is now in the
possession of Consultant without any obligation or
confidentiality, or (iv) has been or is hereafter lawfully
disclosed to Consultant by any third party, but only to the
extent that the use or disclosure thereof has been or is
rightfully authorized by that third party.
6. BENEFITS
The Consultant, as an independent contractor, shall not be
entitled to any other benefits other than the fees and
reimbursement of expenses provided under Paragraph 5 of this
Agreement.
7. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent
contractor and not an employee of the Company and that it is
Consultant's sole obligation to report as income all compensation
received from Company pursuant to this Agreement. The Consultant
further agrees that the Company shall not be obligated to pay
withholding taxes, social security, unemployment taxes,
disability insurance premiums, or similar items, in connection
with any payments made to the Consultant pursuant to the terms of
this Agreement.
8. TERM
This Agreement shall be effective beginning as of the 9th day of
November, 2000 and shall continue for twelve (12) months or until
date of delivery of completed product and Services; provided,
however, that either Company or Consultant may terminate this
Agreement in whole or in part at any time upon thirty (30) days'
written notice to the other party. In the event of termination or
upon expiration of this Agreement, Consultant shall return to
Company any and all equipment, documents or materials, and all
copies made thereof, which Consultant received from Company for
the purposes of this Agreement and the Company shall pay to
Consultant the amounts provided in Paragraph 5 hereof through the
date of such termination or expiration.
9. INDEMNIFICATION
The Consultant shall indemnify and save Company harmless from and
against all claims arising in favor of any person, firm or
corporation on account of personal injury or property damage in
any way resulting from the improper or illegal acts of
Consultant, its employees or agents. The foregoing indemnity
shall include all costs incurred by Company, including reasonable
attorneys'
fees.
10. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first
class mail to the respective addresses of the parties set forth
at the beginning of this Agreement or to such other address as
any party may designate by notice delivered hereunder to the
other party.
11. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof shall
survive the termination of this Agreement or completion of the
Services as the case may be.
b. Neither the Company nor Consultant shall assign this Agreement
or delegate its duties hereunder and shall not subcontract any of
the Services to be performed hereunder without the prior written
consent of the other party hereto.
c. Consultant shall perform the Services as an independent
contractor and shall not be considered an employee of Company or
Partner, joint venturer or otherwise related to Company for any
purpose.
d. This Agreement shall be governed by the laws of the State of
Ohio.
e. This Agreement constitutes the entire understanding between
Consultant and Company respecting the Services described herein.
The terms and conditions of any purchase order shall have no
effect upon this Agreement and shall be used for accounting
purposes only.
f. The failure of either party to exercise its rights under this
Agreement shall not be deemed to be a waiver of such rights or a
waiver of any subsequent breach.
g. Any delay or nonperformance of any provision of this Agreement
caused by conditions beyond the reasonable control of the
performing party shall not constitute a breach of this Agreement,
provided that the delayed party has taken reasonable measures to
notify the other of the delay in writing. The delayed party's
time for performance shall be deemed to be extended for a period
equal to the duration of the conditions beyond its control.
Conditions beyond a party's "reasonable control" include, but are
not limited to, natural disasters, acts of government after the
date of the Agreement, power failure, fire, flood, acts of God,
labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be
considered a condition beyond a party's reasonable control.
h. Non-Solicitation of Consultant's Employees: Company agrees not
to knowingly hire or solicit Consultant's employees during
performance of this Agreement and for a period of two years after
termination of this Agreement without Consultant's written
consent.
i. Mediation and Arbitration: If a dispute arises under this
Agreement, the parties agree to first try to resolve the dispute
with the help of a mutually agreed-upon mediator in Clermont
County, Ohio. Any costs and fees other than attorney fees
associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the
parties agree to submit the dispute to binding arbitration in
Clermont County, Ohio under the rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator
may be entered in any court with jurisdiction to do so.
j. Attorney Fees: If any legal action is necessary to enforce
this Agreement, the prevailing party shall be entitled to
reasonable attorney fees, costs and expenses.
k. Complete Agreement: This Agreement together with all exhibits,
appendices or other attachments, which are incorporated herein by
reference, is the sole and entire Agreement between the parties.
This Agreement supersedes all prior understandings, agreements
and documentation relating to such subject matter. In the event
of a conflict between the provisions of the main body of the
Agreement and any attached exhibits, appendices or other
materials, the Agreement shall take precedence. Modifications
and amendments to this Agreement, including any exhibit or
appendix hereto, shall be enforceable only if they are in writing
and are signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
eConnect
Signature: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Chairman & CEO
Consultant
/s/ Xxxxxxx Xxxxxxxx Xx.
Xxxxxxx Xxxxxxxx Xx.
