Exhibit 4.9
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") made effective as of this 29th
day of October, 1999, by and between, eSynch Corporation, having its business
offices located at (the "Company") and Xxx Xxxxxxx (the Consultant") with its
business offices located at 000 Xxxxxxx Xxx., Xxxxxxxxx XX 00000
WITNESSETH:
WHEREAS, the Company desires to retain the Consultant and the Consultant
desires to be retained by the Company, all pursuant to the terms and conditions
herein set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. RETENTION. The Company hereby retains the Consultant to perform
general consulting services related to the affairs of the Company, and
the Consultant hereby accepts such retention and shall perform for the
Company the duties described herein to the best of its ability. In this
regard, the Consultant shall devote such business time and attention to
matters on which the Consultant deems necessary. Notwithstanding
anything herein to the contrary, the Consultant shall not be required to
devote more than thirty man hours per month. For purposes of this
Agreement, a man hour shall mean one hour spent by Xxx Xxxxxxx, other
employees or advisors used by the Consultant regarding the affairs of the
Company.
(a) The services to be rendered by the Consultant to the Corporation
shall under no circumstances, pursuant to the terms of this
Agreement, include the following:
(i) Any activities which could be deemed by the Securities and
Exchange Commission to constitute investment banking or any
other activities requiring the Consultant to register as a
broker-dealer under the Securities Exchange Act of 1934.
(ii) Any activities which could be deemed to be in connection with
the offer or sale of securities in a capital-raising
transaction
(b) The Consultant agrees, to the extent reasonably required in the
conduct of the business of the Company, to provide advice,
consultation and recommendations to the Company including the
following:
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1. Develop an in-depth familiarization with the Company's
business objectives and bring to its attention potential
or actual opportunities, which meet those objectives or
logical extensions thereof
2. Comment on the Company's corporate development including
such factors as position in competitive environment,
financial performances vs. Competition, strategies,
operational viability, etc.
3. Review and comment upon the Company's annual and
quarterly reports and other financial publications.
4. Review and comment upon the Company's financial public
relations plan.
5. Keep the Company informed on any externally originated
information disseminated about it.
6. Critically evaluate the Company's performance in view of
its corporate planning and business objectives.
7. Assist the Company in improving its shareholder relations
by developing long range programs for shareholder
communication.
8. Advise the Company as to selection of suitable public
relations counsel.
9. Analyze and assess alternatives for the Company,
presented by the Company.
(c) The Consultant agrees to use its best efforts in the furnishing of
advice and recommendations and for this purpose the Consultant
shall keep available an adequate organization of personnel or a
network of outside professionals for the performance of its
obligations under this Agreement. In order to allow the
Consultant to be kept current with the affairs of the Company, the
Company will continuously provide to the Consultant in a timely
fashion, such updating information in addition to the "due
diligence" materials previously supplied. In the event that the
Company fails or refuses to furnish any such material or
information reasonably requested by the Consultant, and thus
prevents or impedes Consultant's performance hereunder, any
liability of Consultant to perform shall not be a breach of its
obligations hereunder The Company will provide "due diligence"
presentations as reasonably requested by the Consultant.
4. TRANSFERABILITY OF THE SHARES.
(a) The Consultant acknowledges it as acquiring the Shares for
investment purposes only, and not for distribution or
fractionalization. The Shares have not been registered under
federal or state securities laws. Transfer of the Shares is
accordingly restricted and, unless a registration statement
relating to the issuance of the Shares is in effect at the time of
issuance, the Shares will bear appropriate restrictive legends.
The Company shall allow the Consultant to direct the allocation of
the Shares to up to four persons or to hypothecate, sell, assign
or transfer (a" Transfer") all or a part of the Shares to up to
four
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persons, including principals of the Consultant, provided
that (i) the Consultant confirms to the Company it has not made
any offer to sell or solicitation of offers to buy the Shares, and
that it has conveyed to the potential transferee(s) (the
"Transferees") all information necessary to fully inform the
Transferees of the Company and its business, (ii) the Transferee's
establish to the Company's satisfaction that the Transferees are
accredited investors (as defined under Regulation D) (iii) the
Transferees are acquiring the Shares for investment purposes only
and (iv) acknowledge that they have been given access to all
material information regarding the Company, and (v) such other
reasonable requirement of the securities laws is available for the
Transfer of the Shares.
5. NOT LICENSED AS A BROKER-DEALER OR INVESTMENT ADVISOR. Neither
Consultant nor any employee of Consultant is a licensed broker-dealer and
Consultant is not being retained to offer, sell or place any securities
of the Company. No fees paid pursuant to this Agreement relate to
commissions for the placement or sale of securities. Neither Consultant
nor any employee of Consultant is a licensed investment adviser and
Consultant is not being retained to make any valuations of the securities
of the Company or of any entity the Company may consider acquiring in the
future. The Company acknowledges that neither the Consultant nor any
employee of Consultant has been retained to provide investment advisory
services to the Company.
6. EXPENSES. The Company agrees to pay and/or reimburse the Consultant
for any "extraordinary" expenses incurred by the Consultant. Any
"extraordinary" expenses paid and/or reimbursed under this Agreement will
require the Company's prior authorization.
7. LIABILITY OF PARTIES. The Consultant shall have no liability with
respect to decisions made or actions taken by the Company in reliance
on advice or recommendations given by the Consultant. The Company agrees
to indemnify and hold harmless the Consultant and its affiliates , the
respective directors, officers, partners, agents, and employees and each
other person, if any, controlling the Consultant or any of its affiliates
(collectively the "Consultant Parties"), to the full extent lawful, from
and against all loses, claims, damages, liabilities and expenses incurred
by them (including attorneys' fees and disbursements) that result from
actions taken or omitted to be taken (including any untrue statements
made or any statements omitted to be made) by the Company, its agents or
employees. The Consultant will indemnify and hold harmless the Company
and the respective directors, officers, agents and employees of the
Company and each other person, if any, controlling the Company or any of
its affiliates (the "Company Parties") from and against all losses,
claims, damages, liabilities and expenses that result from bad faith,
gross negligence or unauthorized representations of the Consultant. Each
person or entity seeking indemnification hereunder shall promptly notify
the Company, or the Consultant as applicable, of any loss, claim, damage
or expense for which the Company or the Consultant as applicable, may
become liable pursuant to this Section, shall not pay, settle or
acknowledge liability under any such claim without consent of the party
liable
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for indemnification, and shall permit the Company or Consultant as
applicable a reasonable opportunity to cure any underlying problems or to
mitigate actual or potential damages. The scope of this indemnification
between the Consultant and the Company shall be limited to, and pertain
only to transactions contemplated or entered into pursuant to this
Agreement.
The Company or the Consultant, as applicable, shall have the
opportunity to defend any claim for which it may be liable hereunder,
provided it notifies the party claiming the right to indemnification
within 15 days of notice of the claim.
The rights stated pursuant to the preceding two paragraphs shall
be in addition to any rights that the Consultant , the Company, or any
other person entitled to indemnification may have in common law or
otherwise, including but not limited to , any right to contribution.
8. STATUS OF CONSULTANT. The Consultant shall be deemed to be an
independent contractor. The Consultant shall have no authority to, and
shall not, bind the Company to any agreement or obligation with a third
party. Nothing in this Agreement shall imply that the parties are
co-partners or joint -ventures with each other.
9. OTHER ACTIVITIES OF CONSULTANT. The Company realizes that the
Consultant now renders, and may continue to render services similar to
those services being rendered under this Agreement to other companies,
some of which may conduct business and activities similar to those of the
Company.
10. TERM. The Consultant shall be retained for services described herein for
a one (1) year term commencing as of the effective date of this
Agreement. This Agreement may only be terminated by both parties written
mutual consent. If during the term of this Agreement both parties
mutually consent to terminate this Agreement prior to the termination
date, then, the Consultant's rights under this Agreement shall survive
any termination thereof.
11. STOCK GRANT.
(a) The Company hereby agrees to grant as compensation for services
Fifteen Thousand (15,000) non-assessable, fully paid for and
issued shares of the Company's Common Stock (hereinafter the
"Shares").
(b) The Company agrees to deliver the Shares to the Consultant within
fourteen (14) days from the date of this Agreement.
12. TRADE SECRETS AND DOCUMENTATION. Consultant will treat as proprietary
any information belonging to the Company, or any third parties disclosed
to Consultant in the course of Consultant's services which is designated
by an appropriate stamp or
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legend as being confidential. Notwithstanding the foregoing, the
Consultant shall not be required to maintain confidentiality with
respect to information (i) which is or becomes part of the public
domain not due to the breach of this Agreement by Consultant; (ii) of
which it had independent knowledge prior to disclosure; (iii) which
comes into the possession of Consultant in the normal and routine
course of its own business from and through independent
non-confidential sources or (iv) which is required to be disclosed by
Consultant by governmental requirements.
13. CONTROL. Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Certificate of Incorporation
or By-Laws, or any applicable statute or regulation, or to deprive its
Board of Directors of their responsibility for any control of the conduct
of the affairs of the Company.
14. NOTICES. Any notices hereunder shall be sent to the Company and the
Consultant at their respective addresses above set forth. Any notice
shall be given by registered or certified mail, postage prepaid, and
shall be deemed to have been given when deposited in the United States
mail. Either party may designate any other address to which notice shall
be given, by giving written notice to the other of such change of address
in the matter herein provided. Any notices required to be given to the
holders of the Shares shall be deemed properly made when sent to the
Consultant in the manner set forth above. The Consultant shall use its
best efforts to promptly forward such notices to the holders of the
Shares.
15. GOVERNING LAW. This Agreement has been made in the State of
California and shall be construed and governed in accordance with the
laws thereof without regard to conflicts of laws.
16. ENTIRE AGREEMENT. This Agreement contains the entire Agreement between
the parties, may not be altered or modified, except in writing and signed
by the party to be charged thereby and supersedes any and all previous
agreements between the parties.
17. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and their respective heirs, administrators, successors and
assignees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
eSynch Corporation
By: By:
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Xxx Xxxxxxxxx, CEO Xxx Xxxxxxx, Consultant
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