Exhibit 4.3.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this December 3, 2001 by and between Xxxx X. Xxxx (hereinafter referred to as
"Consultant"), an individual, having his principle address at 0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxx 00000 and eConnect, Incorporated (hereinafter referred to as the
"Company") with offices at 2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx, 00000.
WITNESSETH
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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, marketing
and legal consulting services and is desirous of performing such services for
the Company;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
1. APPOINTMENT.
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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.
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The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate 120 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement between the parties.
3. SERVICES.
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During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. Consultant agrees to provide on a timely basis the
following enumerated services plus any additional services contemplated thereby:
Consulting Agreement
December 3, 2001
Page 2
(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) 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) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(d) 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; and
(e) Completion of an S-8 Registration Statement to be filed with the
Securities Exchange Commission (the "SEC") for the Company's common shares to be
used as compensation for this and other advisory and consulting agreements.
4. DUTIES OF THE COMPANY.
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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 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.
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Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
Consulting Agreement
December 3, 2001
Page 3
(a) Option Shares. Consultant shall have the right to purchase
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8,000,000 shares of eConnect (ECNC) common shares at the average of the three
lowest inter-day trading prices for the twelve (12) trading days prior to the
exercise date discounted by fifty percent (50%). Consultant's rights regarding
these shares shall vest immediately and shall be exercised as set forth below:
(i) 2,000,000 common shares as of January 21, 2002;
(ii) 2,000,000 common shares as of January 28, 2002;
(iii) 2,000,000 common shares as of February 4, 2002; and
(iv) 2,000,000 common shares as of February 11, 2002.
(b) Non-Option Shares. Within 3 days of the effectiveness of the S-8
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Registration Statement (referenced in Section 3(e) above), the Company shall
execute a written request to its transfer agent to prepare and deliver to
Consultant, or it's agent, one common stock certificate for 5,000,000 shares of
freely tradable, non-legend, eConnect Incorporated common stock (to be held in
escrow pursuant to the terms of a separate escrow agreement).
(c) The Compensation outlined in Section 5(a-b) above shall be
conveyed through an effective S-8 registration of common shares (as referenced
in Section 3(e) above). In consideration of the acknowledgment that Consultant
has agreed to, and is bound to engage in various efforts on behalf of the
Company, the Company hereby agrees to exercise "Best Efforts" to assist and
cooperate with Consultant in order to effectuate the effectiveness of the above
S-8 Registration Statement, so that the Registration Statement will become
effective within 10 days of the execution of this Agreement.
5.6 COSTS AND EXPENSES
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(b) Miscellaneous Costs.
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Subject to the prior approval of the Company, Consultant in providing
the foregoing services, shall not be responsible for any out-of-pocket costs,
including, without limitation, travel, lodging, telephone, postage and Federal
Express charges. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
6. REPRESENTATION AND INDEMNIFICATION.
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(d) Client. Client agrees to indemnify, defend, and shall hold
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harmless Consultant and/or his agents, and to defend any action brought against
said parties with respect to any claim, demand cause of action, debt or
liability, including reasonable attorneys' fees to the extent that such action
is based upon a claim that: (i) is true, (ii) would constitute a breach of any
of Client's representations, warranties, or agreements
Consulting Agreement
December 3, 2001
Page 4
hereunder, or (iii) arises out of the negligence or willful misconduct of
Client, or any Client Content to be provided by Client and does not violate any
rights of third parties, including, without limitation, rights of publicity,
privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
(e) Consultant. Consultant agrees to indemnify, defend, and shall
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hold harmless Client, its directors, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of action, or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the gross negligence or willful misconduct of Consultant.
(f) Notice. In claiming indemnification hereunder, the indemnified
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party shall promptly provide the indemnifying party with written notice of any
claim, which the indemnified party believes falls within the scope of the
foregoing paragraphs. The indemnified party may, at its expense, assist in the
defense if it so chooses, provided that the indemnifying party shall control
such defense, and all negotiations relative to the settlement of any such claim.
Any settlement intended to bind the indemnified party shall not be final without
the indemnified party's written consent, which shall not be unreasonably
withheld.
7. MISCELLANEOUS.
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Termination: Subsequent to and no less than 30 days after the execution of
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this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 of this
Agreement.
Modification: This Consulting Agreement sets forth the entire understanding
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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
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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.
Consulting Agreement
December 3, 2001
Page 5
Waiver: Any waiver by either Party of a breach of any provision of this
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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
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discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
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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
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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 San Diego, 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)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
eConnect, Inc. CONSULTANT
/s/ Xxx Xxxxxx /s/ Xxxx X. Xxxx
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Xxx Xxxxxx, Xxxx X. Xxxx
CEO Consultant
