Exhibit 10.15
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of the 17th day of December, 2003, by
and between 4net Software, Inc., a Delaware corporation, having an address at 00
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to
as "4net Software"), and ETN Financial Services Group, LLC, a Pennsylvania
limited liability company, having an address at 000 Xxxxxxxxxxxx Xxxxx Xxxx,
Xxxxx X0, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as "ETN
Financial").
RECITALS:
WHEREAS, 4net Software is publicly traded company engaged in seeking out
and identifying prospective target companies for mergers, acquisitions, business
combinations, and/or similar transactions (a "Transaction");
WHEREAS, ETN Financial is an investment banking firm duly licensed as a
broker dealer with the U.S. Securities and Exchange Commission and a member of
the National Association of Securities Dealers, Inc.; and
WHEREAS, 4net Software desires to engage ETN Financial to provide financial
public relation services, identify prospective target companies for
Transactions, and to advise 4net Software in connection with the negotiation and
financial structure of such Transactions.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. Term. The term of this Agreement shall be for a period of one (1) year
commencing on the date first written above and terminating on the first
anniversary hereof (the "Term").
2. Consulting Services. During the term of the Agreement, ETN Financial shall
provide consulting services to the Company specifically related to seeking,
identifying, investigating and completing Transactions with target companies.
Such services include, but are not limited to, (i) presenting and introducing
the Company to members of the investment community to generate investor interest
in the Company, (ii) assisting the Company in areas of investor relations and
corporate communications, (iii) assisting the Company in creating new
relationships to enhance the Company's existing and future business, (iv)
seeking to ally the Company with collaborative and strategic partners with the
goal of identifying and establishing new markets for the Company and its future
products, (v) establishing a cohesive and streamlined investor relations
department and assist in its deployment and(vi) sharing files and collected data
with the Company for marketing purposes and to inform interested parties of
corporate developments.
3. Compensation. In consideration for the performance of services hereunder, the
Company hereby agrees to compensate ETN Financial as follows:
a. Upon execution of this Agreement ETN Financial shall purchase 100,000 shares
of the Company's common stock from the Company at a purchase price of $.25 per
share in a private transaction pursuant to Section 4(2) of the Securities Act of
1933, and
b. Upon execution of this Agreement the Company shall issue to ETN Financial
warrants to purchase 400,000 shares of the Company's common stock at a purchase
price of $.25 per share (the "Warrants"). The Warrants shall be exercisable for
a period of five (5) from the date of issuance and shall contain a cashless
exercise provision. In the event that the Company does not consummate a
Transaction as a result or consequence of an introduction made directly or
indirectly by ETN Financial subsequent to the date hereof and within one year
from the execution of this Agreement, then ETN Financial shall forfeit and
return to the Company fifty percent (50%) of the Warrants or Warrants to
purchase 200,000 shares of the Company's common stock at a purchase price of
$.25 per share.
4. Registration Rights. If at any time prior to the one (1) year anniversary of
this Agreement the Company proposes to file with the SEC a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of 1933 of any of its securities (other than a
registration statement on Form S-4 or Form S-8 (or their equivalents at such
time), then the Company shall promptly notify ETN and provide ETN piggyback
registration rights on such registration statement for the 100,000 shares of
common stock purchased by ETN pursuant to paragraph 3(a) above and the shares of
common stock underlying the Warrants. In connection with any public offering of
the Company's securities, the piggyback registration rights provided herein may
be modified, waived or avoided subject to the discretion of the underwriter in
the public offering.
5. Expenses. The Company shall reimburse ETN Financial for its out-of-pocket
expenses in connection with the services to be performed hereunder; provided
however, that expenses are pre-approved by the Company.
6. Representations of the Company. The Company hereby represents and warrants
that any and all information supplied hereunder to ETN Financial in connection
with any and all services to be performed hereunder by ETN Financial for and on
behalf of the Company shall be, to the best of the Company's knowledge, true,
complete and correct as of the date of such dissemination and shall not fail to
state a material fact necessary to make any of such information not misleading.
The Company hereby acknowledges that the ability of ETN Financial to adequately
provide services as described herein is dependent upon the prompt dissemination
of accurate, correct and complete information to ETN Financial. The Company
further represents and warrants hereunder that this Agreement and the
Transaction contemplated hereunder have been, or will be, duly and validly
authorized by all requisite corporate action; that the Company has the full
right, power and capacity to execute, deliver and perform its obligations
hereunder; and that this Agreement, upon execution and delivery of the same by
the Company, will represent the valid and binding obligation of the Company and
shall be enforceable by ETN Financial in accordance with its terms. The
representations and warranties set forth herein shall survive the termination of
this Agreement.
7. Indemnification.
(a) The Company hereby agrees to indemnify, defend and hold harmless ETN
Financial, its officers, directors, principals, employees, partners,
consultants, affiliates, and shareholders, and their successors and assigns from
and against any and all claims, damages, losses, liability, deficiencies,
actions, suits or proceedings (collectively the "Losses") arising out of or
resulting from: (i) any breach of a representation, or warranty by the Company
contained in this Agreement; or (ii) any activities or services performed
hereunder by ETN Financial, unless such Losses were the result of the
intentional misconduct or gross negligence of ETN Financial or were the result
of any information supplied by ETN Financial; or (iii) any and all costs and
expenses (including reasonable attorneys' and paralegals' fees) related to the
foregoing, and as more fully described below.
(b) ETN Financial hereby agrees to indemnify, defend and hold harmless the
Company, and its officers, directors and shareholders, and their successors and
assigns from and against any and all Losses arising out of or resulting from (i)
the intentional misconduct or gross negligence of ETN Financial, unless such
Losses were the result of any information supplied by the Company; or (ii) any
and all costs and expenses (including reasonable attorneys' and paralegals'
fees) related to the foregoing, and as more fully described below.
(c) If ETN Financial or the Company (in each case, the "Indemnified Party")
receives written notice of the commencement of any legal action, suit or
proceeding with respect to which the Company or ETN Financial (in each case, the
"Indemnifying Party") is or may be obligated to provide indemnification pursuant
to this Section 7, the Indemnified party shall, within thirty (30) days of the
receipt of such written notice, give the Indemnifying Party written notice
thereof (a "Claim Notice"). Failure to give such Claim Notice within such thirty
(30) day period shall not constitute a waiver by the Indemnified Party of its
right to indemnity hereunder with respect to such action, suit or proceeding if
the Indemnifying Party is not materially adversely affected by such delay. Upon
receipt by the Indemnifying Party of a Claim Notice from the Indemnified Party
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), the Indemnified Party may assume the
defense of the Third Party Claim with counsel of its own choosing, as described
below. The Indemnifying Party and the Indemnified party shall cooperate with
each other in the defense of the Third Party Claim and shall furnish such
records, information and testimony and attend all such conferences, discovery
proceedings, hearings, trial and appeals as may be reasonably required in
connection therewith. The Indemnified Party shall have the right to employ its
own counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of the Indemnifying Party unless the Indemnifying Party shall
not have promptly employed counsel to assume the defense of the Third Party
Claim, in which event such fees and expenses shall be borne solely by
Indemnifying Party. The Indemnifying Party shall not satisfy or settle any Third
Party Claim for which indemnification has been sought and is available
hereunder, without the prior written consent of the Indemnified Party unless
such claim can be settled entirely for cash and the Indemnified Party shall be
given a full release from all parties in connection therewith. If the
Indemnifying Party shall fail with reasonable promptness either to defend such
Third Party Claim or to satisfy or settle the same, the Indemnified Party may
defend, satisfy or settle the Third Party Claim at the expense of the
Indemnifying Party and the Indemnifying Party shall pay to the Indemnified Party
the amount of any such Loss within ten (10) days after written demand therefore.
The indemnification provisions hereunder shall survive the termination of this
Agreement.
8. Confidentiality. ETN Financial agrees that all non-public information
pertaining to the prior, current or contemplated business of the Company are
valuable and confidential assets of the Company. Such information shall include,
without limitation, information relating to customer lists, bidding procedures,
intellectual property, patents, trademarks, trade secrets, financing techniques
and sources and such financial statements of the Company as are not available to
the public. ETN Financial, its officers, directors, employees, agents and
shareholders shall hold all such information in trust and confidence for the
Company and shall not use or disclose any such information for other than the
benefit of the Company's business and shall be liable for damages incurred by
the Company as a result of the use or disclosure of such information by ETN
Financial, its officers, directors, employees, agents or shareholders for any
purpose other than the benefit of the Company's business, either during the term
of the attached Agreement or after the termination or expiration thereof, except
(i) where such information is publicly available or later becomes publicly
available other than through a breach of this Agreement, or (ii) where such
information is subsequently lawfully obtained by ETN Financial from a third
party or parties who are not under an obligation of confidentiality to the
Company, or (iii) if such information is known to ETN Financial prior to the
execution of this Agreement, or (iv) as may be required by law. These
confidentiality obligations shall survive termination of this Agreement.
9. Independent Contractor. It is expressly understood and agreed that ETN
Financial shall, at all times, act as an independent contractor with respect to
the Company and not as an employee or agent of the Company, and nothing
contained in this Agreement shall be construed to create a joint venture,
partnership, association or other affiliation, or like relationship, between the
parties. It is specifically agreed that the relationship is and shall remain
that of independent parties to a contractual relationship and that ETN Financial
shall have no right to bind the Company in any manner. In no event shall either
party be liable for the debts or obligations of the other except as otherwise
specifically provided in this Agreement.
10. Amendment. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is evidenced by a written instrument,
executed by the party against which such modification, waiver, amendment,
discharge or change is sought.
11. Notices. All notices, demands or other communications given hereunder shall
be in writing and shall be deemed to have been duly given when delivered in
person or by Federal Express overnight delivery, to the party at the address set
forth above or to such other address as any party shall designate in writing to
the other party.
12. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, not will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that nay one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of New York, without application of the
principles of conflicts of laws.
14. Binding Nature. The terms and provision of this Agreement shall be binding
upon and inure to the benefit of the parties, and their respective successors
and assigns.
15. Counterparts. This Agreement my be executed in any number of counterparts,
including facsimile signatures which shall be deemed as original signatures. All
executed counterparts shall constitute one Agreement, notwithstanding that all
signatories are not signatories to the original or the same counterpart.
16. Entire Agreement. This Agreement contains all of the understanding and
agreements of the parties with respect to the subject matter discussed herein.
All prior agreements, whether written or oral, are merged herein and shall be of
no force or effect.
Signatures appear on the next page.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
4net Sotware, Inc. ETN FINANCIAL LLC
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
By: ---------------------------- ------------------------------------
Xxxxxx X. Xxxxxxx, President Xxxxxxx X. Xxxxxxxx, Managing Member
