CONSULTING AGREEMENT
Agreement made as of August 16, 1999 by and between eConnect
Incorporated, a Nevada corporation, 0000 Xxx Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000 ("Contractor") and eMarkit,
Incorporated, a Nevada corporation, 0000 X. Xxxxxxxx Xxxx, Xxxxx
000-000, Xxxxxxxxxx, XX 00000 ("Contractee").
WITNESSETH
Whereas, Contractor requires expertise in the area of public
corporate consulting to support its business and growth; and
Whereas, Contractee has substantial contacts among the members of
the investment community and desires to act as a consultant to
provide financial and consulting services.
Now, therefore, in consideration of the premises and the mutual
promises and covenants contained herein and subject specifically
thereby, the parties agree as follows:
(1) Certain Definitions. When used in this Agreement, the following
terms shall have the meanings set forth below:
1.1 Affiliate - any person or entities controlled by a party.
1.2 Contractor - the Contractor who uses the services of Contractee.
1.3 Contractor Clients - the Contractor's clients who use the
services of Contractee through the Contractor.
1.4 Contact Person - the person who shall be primarily responsible
for carrying out the duties of the parties hereunder. Contractor
and Contractee shall each appoint a Contact Person to be
responsible for their respective duties. In the even that one
party gives notice to the other party in writing that in their
reasonable opinion, the other party's Contact Person is not able
to fulfill their duties and responsibilities hereunder, both
parties shall mutually agree upon a replacement Contact Person
within ten (10) days of said notice.
1.5 Extraordinary Expenses - expenses that are beyond those expenses
that are usual, regular, or customary in the conduct of the in-
house activities in fulfillment of the scope of the Agreement.
1.6 Equity - cash, securities or liquid assets, specifically
excluding real property.
1.7 Payment or Payable of Kind - distribution of the proceeds of a
transaction in the same type and form was given as valuable
consideration for the transaction.
(2) Contact Persons. The Contact Person for Contractor is Xxxxxx
Xxxxxx. The Contact Person for Contractee is Xxxxx Xxxxxx.
(3) Services To Be Rendered By Contractee. Services to be rendered
by Contractee are as follows:
3.1 Stock Performance. The parties agree that performance of
Contractee shall not be based on the price of the stock and not
to affect the price of the stock. Contractor understands that
Contractee has no control with regard to the price of these
securities.
3.2 Advice and Counsel. Contractee will provide advice and
counsel regarding Contractor's strategic business and financial
plans, strategy and negotiations with potential lenders/investor,
merger/acquisition candidates, joint ventures, corporate partners
and others involving financial and financially related
transactions.
3.3 Introduction to the Securities Brokerage Community.
Contractee has a close association with broker/dealers and
investment professionals across the country and will enable
contact between Contractor and/or Contractor Clients to
facilitate business transactions among them. Contractee shall
use their contacts in the brokerage community to assist
Contractor in establishing relationships with securities dealers
and to provide the most recent corporate information to
interested securities dealers on a regular and continuous basis.
Contractee understands that this is in keeping with Contractor's
business objective to establish a nationwide network of
securities dealers who have an interest in Contractor and/or
Contractor Clients.
3.4 Market Making Intelligence. Contractee knows market-makers
and has access through its network and Contractee will monitor
and react to sensitive market information on a timely basis and
provide advice, counsel and proprietary intelligence (including
but not limited to information on price and volume) to Contractor
in a timely fashion with respect to securities in which
contractor has an interest. Contractor understands that this
information is available from other sources but acknowledges that
Contractee can provide it in a more timely fashion and with
substantial value-added interpretation of such information. The
foregoing notwithstanding, no information will be provided to
Contractor with respect to the activities of any other Contractee
customer's accounts without such customer's prior consent.
3.5 Contractor and/or Contract Client Transaction Due Diligence.
Contractee will undertake due diligence on all proposed financial
transactions affecting the Contractor, including investigation
and advice on the financial, valuation and stock price
implications thereof.
3.6 Additional Duties. Contractor and Contractee shall mutually
agree upon any additional duties, which Contractee may provide
for compensation paid or payable by Contractor under this
Agreement. Such additional agreement(s) may, although there is
no requirement to do so, be attached hereto and made a part
hereof as Exhibits beginning with Exhibit "A".
3.7 Best Efforts. Contractee shall devote such time and best
efforts as may be reasonably necessary to perform its services.
Contractee is not responsible for the performance of any
services, which may be rendered hereunder without Contractor
providing the necessary information prior thereto. Contractee
cannot guarantee results on behalf of Contractor but shall pursue
all avenues available through its network of financial contacts.
At such time as an interest is expressed in Contractor's needs,
Contractee shall notify Contractor and advise it as to the source
of such interest and any terms and conditions of such interest.
The acceptance and consummation of any transaction is subject to
acceptance of the terms and conditions by Contractor. It is
understood that a portion of the compensation to be paid
hereunder is being paid by Contactor to have Contractee remain
available to assist it with transactions on an as-needed basis.
4) Compensation to Contractee
4.1 Initial Fee. Contractor does agree to pay Contractee an initial
fee of One Million (1,000,000) "free-trading" shares of eConnect
stock deemed fully earned upon execution hereof for Contractee's
initial setup activities which are necessary for Contractee to
provide the services herein. Immediately upon signature of this
Agreement by Contractor and Contractee, One Million (1,000,000)
"free-trading" shares shall be deposited in Contractee's account
of choice. Contractor and Contractee agree that these 1,000,000
shares shall be sold without any restrictions in order to provide
Contractee with the necessary capital to initiate its program on
behalf of Contractor. In addition, 1,000,000 warrants
exercisable at $1.00 per share, which expire on December 31,
2000, shall be issued to Contractee immediately upon signature of
this Agreement by Contractor and Contractee. The 1,000,000
warrants shall be sent directly to eMarkit, Incorporated at 0000
X. Xxxxxxxx Xxxx, Xxxxx 000-000, Xxxxxxxxxx, XX 00000. This fee
shall be considered in arrears if not received by the tenth
(10th) business day following execution of this Agreement.
4.2 Additional Fees. Contractor and Contractee shall mutually agree
upon any additional fees, which Contractor may pay in the future
for services rendered by Contractee under this Agreement. Such
additional agreement(s) may, although there is no requirement to
do so, be attached hereto and made apart hereof as Exhibits
beginning with Exhibit "A".
4.3 Extraordinary Expenses. Extraordinary expenses of Contractee
shall be submitted to Contractor for approval prior to
expenditure and shall be paid by Contractor within ten (10)
business days of receipt of Contractee's request for payment.
4.4 Finder Fees.
4.4.1 In the event Contractee introduces Contractor or a Contractor
affiliate to any third party funding source(s), underwriter(s),
or merger partner(s) which arrive at a mutual funding,
underwriting or merger agreement, Contractor hereby agrees to pay
Contractee an advisory fee of five percent (5%) of the gross
proceeds derived from such funding, payable upon the consummation
of such funding of underwriting, even though the term of this
Agreement may have expired.
4.4.2 Contractor hereby directs and authorizes funding source(s) or
underwriter(s), or merger partner(s) which arrive at a mutual
funding, underwriting or merger agreement, Contractor hereby
agrees to pay Contractee an advisory fee of five percent (5%) of
the gross proceeds derived from such funding, payable upon the
consummation of such funding of underwriting, even though the
term of this Agreement may have expired.
4.4.3 Contractee may, at is sole option, elect to receive all or a
portion of said advisory fee as payment in kind, i.e., pro-rata
in the same form and type of securities, equity, or financing
instruments issued to the funding source or underwriter by
Contractor. In the even the exercise of this option results in
additional expense over and above the expenses of the funding
and/or underwriting then the additional expenses shall be borne
by Contractor. In addition, the exercise of this option by
Contractee shall not impede or otherwise have a negative effect
on the funding or underwriting.
4.5 Interest of Funds Due. Contractor shall pay interest on all
payments in arrears due Contractee at the rate of ten percent
(10%) per annum.
5) Indemnification. Each party shall hold the other party
harmless from and against, and shall indemnify the other party
for, any liability, loss and costs, and expenses or damages
however caused by reason of any injury (whether to body,
property, personal or business character, or reputation)
sustained by any person or to any person or property by reason of
any act of neglect, default or omission of it or any of its
agents, employees, or other representatives arising out of or in
relation to this Agreement. Nothing herein is intended to nor
shall it relieve either party from liability for its own act,
omission or negligence. All remedies provided by law or in
equity shall be cumulative and not in the alternative.
6) Contractor Representations. Contractor hereby represents,
covenants and warrants to Contractee as follows:
6.1 Authorization. Contractor and its signatories herein have
full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby.
6.2 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will violate any provision of the charter or by-laws of
Contractor or violate, or be in conflict with, or constitute a
default under, any agreement or commitment to which Contractor is
a party, or violate any statute or law or any judgment, decree,
order, regulation or rule of any court or government authority.
6.3 Agreement in Full Force and Effect. All contracts,
agreements, plans, leases, policies and licenses referenced
herein to which Contractor is a party are valid and in full force
and effect.
6.4 Litigation. Except as set forth below, there is no action,
suit, inquiry, proceeding or investigation by or before any court
of governmental or other regulatory or administrative agency or
commission pending or to the best knowledge of Contractor
threatened against or involving Contractor, or which questions or
challenges the validity of this Agreement and its subject matter;
and Contractor does not know or have any reason to know if any
valid basis for any such action, proceeding or investigation
exists.
6.5 Consents. No consent of any person, other than the
signatories hereto, is necessary to the consummation of the
transactions contemplated hereby including, without limitation,
consents from parties to loans, contracts, leases or other
agreements and consents from government agencies, whether
federal, state or local.
6.6 Contractee's Reliance. Contractee has and will rely upon
the documents, instruments and written information furnished to
Contractee by the Contractor's officers or designated employees
and:
6.6.1 Contractor Material. All representations and
statements provided about Contractor are true, complete and
accurate. Contractor agrees to indemnify, hold harmless, and
defend Contractee, its officers, directors, agents, consultants
and employees at Contractor's expense for any proceeding or suit
which may arise out of any inaccuracy or incompleteness of any
such material or written information supplied to Contractee; and
6.6.2 Contractor Client and Other Material. All
representations and statements provided, other than about
Contractor, are to the best of its knowledge true, complete and
accurate.
6.7 Services Not Expressed or Implied.
6.7.1 Contractee is not a registered Broker/Dealer and will
not and cannot directly solicit the buying or selling of
Contractor securities. Contractee has not agreed with
Contractor, in this agreement or any other agreement, verbal or
written, to be a market maker in any specific securities in which
Contractor or Contractor Client has an interest; and
6.7.2 Any payments made herein to Contractee are not, and
shall not be construed as, compensation to the Contractee for the
purposes of making a market, to cover Contractee's out-of-pocket
expenses for making a market, or for the submission by Contractee
of an application to make a market in any securities; and
6.7.3 No payments made herein to Contractee are for the
purposes of affecting the price of any security or influencing
any market-making functions, including but not limited to,
bid/ask quotations, initiation and termination of quotations,
retail securities activities, or for the submission of any
application to make a market.
7) Confidentiality. Contractee and Contractor each agree to provide
reasonable security measures to keep information confidential
whose release may be detrimental to the business. Contractee and
Contractor shall each require their employees, agents,
affiliates, subcontractors, other licenses, and other who will
properly have access to the information through Contractee and
Contractor respectively, to first enter into appropriate non-
disclosure agreements requiring the confidentiality contemplated
by this Agreement in perpetuity.
8) Miscellaneous Provisions.
8.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented by written
agreement of Contractee and Contractor or by their duly
authorized respective officers.
8.2 Waiver of Compliance. Any failure of Contractee on the one
hand, or Contractor on the other, to comply with any obligation,
agreement or condition herein may be expressly waived in writing,
but such waiver of failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
8.3 Expenses: Transfer Taxes, etc. Whether or not the
transaction contemplated by this Agreement shall be consummated,
Contractor agrees that all fees and expenses incurred by
Contractee in connection with this Agreement shall be borne by
Contractor and Contractor agrees that all fees and expenses
incurred by Contractor in connection with this Agreement shall be
borne by Contractor, including, without limitation as to
Contractee or Contractor, all fees of counsel and accountants.
8.4 Other Business Opportunities. Except as expressly provided
in this Agreement, each party hereto shall have the right
independently to engage in and receive full benefits from
business activities.
8.5 Compliance with Regulatory Agencies. Each party represents
to the other party that all actions, direct or indirect, taken by
it and its respective agents, employees and affiliates in
connection with this Agreement and any financing or underwriting
hereunder shall conform to all applicable Federal and State
securities laws.
8.6 Notices. Any notices to be given hereunder by an party to
the other may be effected by personal delivery in writing or by
mail, registered or certified, postage prepaid with return
receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraph
of this Agreement, but any party may change their address by
written notice in accordance with this subsection. Notices
delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of three
(3) days after mailing.
8.7 Assignment. This Agreement and all of the provision hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by Contractor without the
prior written consent of Contractee, except by operation of law.
8.8 Delegation. Neither party shall delegate the performance of
its duties under this Agreement without prior written consent of
the other party.
8.9 Publicity. Neither Contractee nor Contractor shall make or
issue, or cause to be made or issued, any announcement or written
statement concerning this Agreement or the transactions
contemplated hereby for dissemination to the general public
without the prior consent of the other party. This provision
shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any
Federal or State governmental agency, except that the party
required to make such announcement shall, whenever practicable,
consult with the other party concerning the timing and consent of
such announcement before such announcement is made.
8.10 Governing Law. This Agreement and the legal relations among
the parties hereto shall be governed and construed in accordance
with the laws of the State of Nevada, without regard to its
conflict of law doctrine. Contractor and Contractee agree that
if action is instituted to enforce or interpret any provision of
this Agreement then jurisdiction and venue shall be Xxxxx County,
Nevada.
8.11 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, but of which together shall constitute one and the same
instrument.
8.12 Headings. The headings of the Sections of this Agreement
are inserted for convenience only and shall not constitute a part
hereto or affect in any way the meaning or interpretation of this
Agreement.
8.13 Entire Agreement. This Agreement, including any Exhibits
hereto, and any other documents and certificates delivered
pursuant to the terms hereof, set forth the entire Agreement and
understanding of the parties hereto in respect to the subject
matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
8.14 Third Parties. Except as specifically set forth or
referenced to herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any
person or corporation other than the parties hereto and their
successors or assigns, any rights or remedies under or by reason
of this Agreement.
8.15 Attorney's Fees and Costs. If any action is necessary to
enforce and collect upon the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees
and costs, in addition to any other relief to which that party
may be entitled. This provision shall be construed as applicable
to the entire Agreement.
8.16 Survivability. If any part of this Agreement is found, or
deemed by a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder of
this Agreement.
8.17 Further Assurance. Each of the parties agrees that it shall
from time to time take such actions and execute such additional
instruments as may be reasonably necessary or convenient to
implement and carry out the intent and purpose of this Agreement.
8.18 Right to Data After Termination. After termination of this
Agreement each party shall be entitled to copies of all
information acquired hereunder as of the date of termination and
not previously furnished to it.
8.19 Relationships of the Parties. Nothing contained in this
Agreement shall be deemed to constitute either party the partner
of the other, nor except as otherwise herein expressly provided,
to constitute either party the agent or legal representative of
the other, nor to create any fiduciary relationship between them.
It is not the intention of the parties to create, nor shall this
Agreement be construed to create, any commercial nor other
partnership. Neither party shall have any authority to act for
or to assume any obligation or responsibility on behalf of the
other party except as otherwise expressly provided herein. The
rights, duties, obligations and liabilities of the parties shall
be severable and not joint or collective. Each party hereto
shall be responsible only for its obligations as herein set out
and shall be liable only for its share of the costs and expenses
as provided herein. Each party shall indemnify, defend and hold
harmless the other party, its directors, officers and employees,
from and against any and all losses, claims, damages and
liabilities arising out of any act or any assumption of liability
by the indemnifying party, or any of its directors, officers or
employees, done or undertaken, or apparently done or undertaken,
on behalf of the other party, except pursuant to the authority
expressly granted herein or otherwise agreed in writing between
the parties. Each party shall be responsible for the acts of its
agents, consultants and affiliates.
9) Terms of Agreement and Termination. This Agreement shall be
effective upon execution, and shall continue for one (1) year
unless terminated sooner, by either party, upon giving to the
other party thirty (30) days written notice, after which time
this Agreement is terminated. Contractee shall be entitled to
any fees stipulated in Exhibit "A", finder's fees for funding or
underwriting commitments entered onto within one (1) year after
the termination of this Agreement if said fees for services,
funding or underwriting was the result of Contractee's efforts
prior to the termination of this Agreement.
10) Arbitration. Contractor agrees that all controversies which may
arise between Contractor and Contractee concerning any
transaction, the construction, performance, or breach of this or
any other agreement between Contractor and Contractee, whether
entered into prior, on or subsequent to the date hereof,
including any controversy based on an expressed or implied right
of action under any state securities laws, shall be determined by
arbitration. Contractor understands that:
10.1 Arbitration is Final. Arbitration is final and binding on the
parties.
10.2 Waiver of Right. The parties waive their right to seek remedies
in court, including the right to a jury trial.
10.3 Pre-Arbitration. Pre-arbitration discovery is generally more
limited than and different from court proceedings.
10.4 Arbitrators' Award. The arbitrators' award is not required to
include factual findings or legal reasoning and any party's right
to appeal or seek modification of rulings by the arbitrators is
strictly limited.
10.5 Panel of Arbitrators. The panel of arbitrators will typically
include a minority of arbitrators who were or are affiliated with
the securities industry.
Any arbitration under this Agreement shall be in compliance with
the Federal Arbitration Act. Contractor may elect whether
arbitration shall be provided by the National Association of
Securities Dealers, Inc. or any facility provided by an exchange
or market if applicable. If Contractor fails t make such
election, by certified mail to Contractee at their address of
record, before the expiration of five (5) days after receipt of a
written request from Contractee with regard to such election,
then Contractee shall make such election.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, all as of the day and year first above
written.
eConnect
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
eMarkit, Incorporated
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
EXHIBIT "A"
DATE:
TO:
FOR SERVICES RENDERED PURSUANT TO SECTION NO. 3 OF THE CONSULTING
AGREEMENT $00 AND/OR 1,000,000 "FREE-TRADING" SHARES OF ECONNECT
STOCK AND 1,000,000 WARRANTS EXERCISABLE AT $1.00 PER SHARE WHICH
EXPIRE ON DECEMBER 31, 2000.
Insert name of institution here
DTC Instructions:
Non-customer House Account No. ___________, Account No. ________
Trading Account No. ______________
Client Account No. ( ) _ _ _ / _ _ _ / _ _ _
Clearing No.
DTC No.
Insert name and address of institution here
Attention:
Telephone
(FAX)
WIRE INSTRUCTIONS:
Insert bank wire instructions here.
