Exhibit 10.5
CONSULTING AGREEMENT
This Agreement (Agreement) is made and entered into this16th day of
November, 2001 between EnterNet Inc., a Nevada corporation with its principal
place of business located in Phoenix, AZ ("the Company") and Xxxx X. Xxxxx, an
Arizona resident with his principle place of business located in Phoenix,
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 legal and business matters upon the
terms and conditions set forth herein.
2. Term and Compensation. This Agreement shall be for a period of 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 five
thousand $(5,000.00) each month. The Consultant shall also be granted an Option
to purchase 300,000 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 legal 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 to advise the Company as to general
corporate law and the applicable Rules and Regulations of the U.S. Securities &
Exchange Commission (the "SEC") and the NASD. It is understood and acknowledged
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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. It is understood and acknowledged by the
Company that the Consultant is licensed in the State of Michigan and will render
opinions only as they apply to the United States Securities Act of 1933, the
Security Exchange Act of 1934 and the applicable Rules and Regulations.
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,
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 it 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 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's liability shall be limited to those
acts commonly known as Legal Malpractice, which must be determined by a court of
competent jurisdiction.
6. Expenses. The Company, upon receipt of appropriate supporting documentation,
shall either directly remit or 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
by 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.
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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.
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 at2816
Xxxx Xxxxxxxx Xx, Xxxxxxx, XX 00000. Such notice or other communication shall be
deemed to be given on the date of receipt.
(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. The parties further agree that any action between them shall
he heard in Phoenix, Arizona.
(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.
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(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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date hereof.
EnterNet INC.
By /s/Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
Xxxx X. Xxxxx
/s/Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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