EXHIBIT 4.26
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement")
made as of August 31, 2001 by and between Xxxxx Benz, 000
Xxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000, ("Consultant") and
ESYNCH CORPORATION, 00000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx,
00000 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to
require consulting services relating to management,
strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with
strategic planning and marketing consulting services and is
desirous of performing such services for the Company; and
WHEREAS, the Company wishes to induce Consultant to
provide these consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual
covenants hereinafter stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant
agrees to render services to the Company as a consultant
upon the terms and conditions hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the
date of this Agreement, and shall terminate one year
thereof, unless earlier terminated in accordance with
paragraph 7 herein or extended as agreed to between the
parties.
3. SERVICES.
During the term of this Agreement, Consultant shall
provide advice to, undertake for and consult with the
Company concerning management, marketing, consulting,
strategic planning, corporate organization and structure,
financial matters in connection with the operation of the
businesses of the Company, expansion of services,
acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs
and condition. Consultant agrees to provide on a timely
basis the following enumerated services plus any additional
services contemplated thereby:
(a) The implementation of short-range and long-
term strategic planning to fully develop and
enhance the Company's assets, resources, products
and services;
(b) Develop and assist in the implementation of a
marketing program to enable the Company to broaden
the markets for its services and promote the image
of the Company and its products and services;
(c) Advise the Company relative to the
recruitment and employment of key executives
consistent with the expansion of operations of the
Company;
(d) The identification, evaluation, structuring,
negotiating and closing of international joint
ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing
managing and operating of such acquisitions upon
consummation thereof; and
(e) Advice and recommendations regarding
corporate financing including the structure, terms
and content of bank loans, institutional loans,
private debt funding, mezzanine financing, blind
pool financing and other preferred and common
stock equity private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and
timely basis, with all approved data and information about
it, its subsidiaries, its management, its products and
services and its operations as shall be reasonably requested
by Consultant, and shall advise Consultant of any facts
which would affect the accuracy of any data and information
previously supplied pursuant to this paragraph. The Company
shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all
federal and state securities agencies; with full and
complete copies of all stockholder reports; with all data
and information supplied by any financial analyst, and with
all brochures or other sales materials relating to its
products or services.
5. COMPENSATION.
The Company will immediately grant Consultant 800,000
shares of the Company's common stock in consideration of
service performed and to be performed.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a
continuing representation of the accuracy of any and all
facts, material information and data which it supplies to
Consultant and acknowledges its awareness that Consultant
will rely on such continuing representation in disseminating
such information and otherwise performing its advisory
functions. Consultant in the absence of notice in writing
from the Company will rely on the continuing accuracy of
material, information and data supplied by the Company.
Consultant represents that he has knowledge of and is
experienced in providing the aforementioned services.
7. MISCELLANEOUS.
Termination: This Agreement may be terminated by
either Party upon written notice to the other Party for any
reason which shall be effective five (5) business days from
the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the
entire understanding of the Parties with respect to the
subject matter hereof. This Consulting Agreement may be
amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given
hereunder shall be in writing and shall be mailed or
otherwise delivered in person or by facsimile transmission
at the address of such Party set forth above or to such
other address or facsimile telephone number, as the Party
shall have furnished in writing to the other Party.
Waiver: Any waiver by either Party of a breach of any
provision of this Consulting Agreement shall not operate as
or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon
strict adherence to any term of this Consulting Agreement on
one or more occasions will not be considered a waiver or
deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting
Agreement.
Assignment: The Options under this Agreement are
assignable at the discretion of the Consultant.
Severability: If any provision of this Consulting
Agreement is invalid, illegal, or unenforceable, the balance
of this Consulting Agreement shall remain in effect, and if
any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons
and circumstances.
Disagreements: Any dispute or other disagreement
arising from or out of this Consulting Agreement shall be
submitted to arbitration under the rules of the American
Arbitration Association and the decision of the arbiter(s)
shall be enforceable in any court having jurisdiction
thereof. Arbitration shall occur only in Orange County, CA.
The interpretation and the enforcement of this Agreement
shall be governed by California Law as applied to residents
of the State of California relating to contracts executed in
and to be performed solely within the State of California.
In the event any dispute is arbitrated, the prevailing Party
(as determined by the arbiter(s)) shall be entitled to
recover that Party's reasonable attorney's fees incurred (as
determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been
executed by the Parties as of the date first above written.
ESYNCH CORPORATION CONSULTANT
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx Benz
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Xxxxxx Xxxxxxxxx Xxxxx Benz
Chief Executive Officer
