Exhibit 4.1(a)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this December 10, 2001 by and between Xxxx Xxxxxxx (hereinafter referred to
as "Consultant"), an individual, having his principle address at 0000 Xxxxxx
Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 and eSynch Corporation
(hereinafter referred to as the "Company") with offices at 00 Xxxxxx, Xxxxxx,
Xxxxxxxxxx 00000.
WITNESSETH
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; and
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:
(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; and
(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.
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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:
(a) Warrant Purchase. Consultant shall have the right to purchase
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3,000,000 shares of the Company's common shares at an exercise price of USD $.03
per share. Consultant's rights regarding these shares shall vest immediately
upon execution of this Agreement.
(b) Non-Warrant Shares. Within 3 days of the effectiveness of the S-8
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Registration Statement (referenced in Section 5(c) below), the Company shall
execute a written request to its transfer agent to prepare and deliver to
Consultant and/or a mutually agreed to escrow agent, one common stock
certificate for 1,000,000 shares of freely tradable, non-legend, eSynch
Corporation equity.
(c) The Compensation outlined in Section 5(a-b) above shall be
conveyed through an effective S-8 registration of common shares. Within 3 days
of the effectiveness of the S-8 Registration Statement, the Company shall
execute a written request to its transfer agent to prepare and deliver to
Consultant, or it's agent, two common stock certificate for 3,000,000 freely
tradable, non-legend, shares of the Company's common stock, and another common
stock certificate for 1,000,000 freely tradable, non-legend, shares of the
Company's common stock.
5.5 COSTS AND EXPENSES
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(a) 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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The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant represents
that he has knowledge of and is experienced in providing the aforementioned
services.
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)
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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 outlined 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
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in 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.
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.
eSynch Corporation CONSULTANT
/s/ Xxx Xxxxxxxxxx /s/ Xxxx Xxxxxxx
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Xxx Xxxxxxxxxx Xxxx Xxxxxxx
CEO
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