INDEPENDENT CONSULTING AGREEMENT
Exhibit
10.1
This Independent Consulting Agreement
(“Agreement”), effective as of the 15th day of March, 2009 (“Effective Date”)
is entered into by and between Enable
Holdings, Inc., a Delaware
corporation (herein referred to as the “Company”), and Xxxxxxxxx
Financial Communications, Inc., an Oregon corporation (herein referred
to as the “Consultant”).
RECITALS:
WHEREAS, the Company is a publicly-held
corporation with its common stock traded on the OTCBB;
WHEREAS, Company desires to engage the services
of Consultant to represent the Company in investors' communications and public
relations with existing shareholders, brokers, dealers and other investment
professionals as to the Company's current and proposed activities, and to
consult with management concerning such Company activities;
NOW THEREFORE, in consideration of the promises and
the mutual covenants and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1. Term of
Consultancy. Company hereby agrees to
retain the Consultant to act in a consulting capacity to the Company, and the
Consultant hereby agrees to provide services to the Company commencing
immediately and ending on March 15, 2010 unless otherwise terminated earlier as
provided herein.
2. Duties of
Consultant. The
Consultant agrees that it will generally provide the following specified
consulting services through its officers and employees during the term specified
in Section 1, above.
(a) Consult with and assist the Company in
developing and implementing appropriate plans and means for presenting the
Company and its business plans, strategy and personnel to the financial
community, establishing an image for the Company in the financial community, and
creating the foundation for subsequent financial public relations
efforts;
(b) Introduce the Company to the financial
community, including, but not limited to, retail brokers, buy side and sell side
institutional managers, portfolio managers, analysts and financial public
relations professionals;
(c) With the cooperation of the Company,
maintain an awareness during the term of this Agreement of the Company's plans,
strategy and personnel, as they may evolve during such period, and consult and
assist the Company in communicating appropriate information regarding such
plans, strategy and personnel to the financial community;
(d) Assist and consult the Company with
respect to its (i) relations with stockholders, (ii) relations with brokers,
dealers, analysts and other investment professionals, and (iii) financial public
relations generally;
(e) Perform the functions generally assigned
to stockholder relations and public relations departments in major corporations,
including responding to telephone and written inquiries (which may be referred
to the Consultant by the Company); reviewing press releases before they are
released by the Company as well as reports and other communications with or to
shareholders, the investment community and the general public; consulting with
respect to the timing, form, distribution and other matters related to such
releases, reports and communications; and, at the Company’s request and subject
to the Company’s securing its own rights to the use of its names, marks and
logos, consulting with respect to corporate symbols, logos, names, the
presentation of such symbols, logos and names, and other matters relating to
corporate image;
(f) Upon and with the Company's direction
and written approval, disseminate information regarding the Company to
shareholders, brokers, dealers, other investment community professionals and the
general investing public;
(g) Upon and with the Company's direction,
conduct meetings, in person or by telephone, with brokers, dealers, analysts and
other investment professionals to communicate with them regarding the Company's
plans, goals and activities, and assist the Company in preparing for press
conferences and other forums involving the media, investment professionals and
the general investment public;
(h) At the Company's request, review
business plans, strategies, mission statements budgets, proposed transactions
and other plans for the purpose of advising the Company of the public relations
implications thereof; and
(i) Otherwise perform as the Company's
consultant for public relations and relations with financial
professionals.
3. Allocation
of Time and Energies. The Consultant hereby
promises to perform and discharge faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and public relations and communications activities, so long as such activities
are in compliance with applicable securities laws and regulations. Consultant
and staff shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required, Consultant and the Company agree that Consultant will perform the
duties set forth herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the effort to be
expended and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur within or shortly after the first
two months of the effectiveness of this Agreement. It is explicitly understood
that neither the price of the Company’s common stock, nor the trading volume of
the Company’s common stock hereunder measure Consultant’s performance of its
duties. It is also understood that the Company is entering into this
Agreement with Consultant, a corporation and not any individual member or
employee thereof, and, as such, Consultant will not be deemed to have breached
this Agreement if any member, officer or director of the Consultant leaves the
firm or dies or becomes physically unable to perform any meaningful activities
during the term of the Agreement, provided the Consultant otherwise performs its
obligations under this Agreement.
4. Remuneration.
4.1 (a) For undertaking this engagement, for
previous services rendered, and for other good and valuable consideration, the
Company agrees to issue, or have issued, to the Consultant a “Commencement
Bonus” of:
(i) Nine Hundred Thousand (900,000) shares
of the Company’s Common Stock (“Common Stock” and such shares, collectively, the
“Shares”); and
(ii) a 5-year warrant to purchase three
million (3,000,000) shares of Common Stock at $0.25 per
share.
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This Commencement Bonus shall be
fully paid and non-assessable and stock certificates representing the
Commencement Bonus shall be issued and delivered to Consultant as promptly
as possible and not later than April 15, 2009 Additionally the
Company agrees to pay Consultant the sum of $8000.00 cash per month due
and payable on the 15th of each month of this
Agreement.
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(b) Consultant agrees that the Company may,
in its sole discretion, cause one or more shareholders of the Company to deliver
any of or all of the Shares to be issued and delivered to Consultant
hereunder.
4.2 The Company understands and agrees that
Consultant has foregone significant opportunities to accept this engagement and
that the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with
Consultant. The Commencement Bonus, therefore, constitutes payment
for Consultant’s agreement to consult to the Company and is a nonrefundable,
non-apportionable, and non-ratable retainer and is not a prepayment for future
services. If the Company decides to terminate this Agreement prior to
March 15, 2010, for any reason whatsoever, it is agreed and understood that
Consultant will not be requested or demanded by the Company to return any of the
Shares paid to it as Commencement Bonus referred to in paragraph 4.1(a)
hereunder. Further, if and in the event the Company is acquired
during the term of this Agreement, it is agreed and understood Consultant will
not be requested or demanded by the Company to return any of the Shares paid to
it hereunder. Consultant agrees and understands that if during the term of this
Agreement, Consultant performs substantial services for any direct competitor of
the Company, then the Shares issued to Consultant hereunder will be
forfeited.
4.3 Company warrants that the Shares issued
to Consultant under this Agreement by the Company shall be or have been validly
issued, fully paid and non-assessable and that the Company’s board of directors
has or shall have duly authorized the issuance and any transfer of them to
Consultant.
4.4 Consultant acknowledges that the Shares
to be issued pursuant to this Agreement have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”) and accordingly are
“restricted securities” within the meaning of Rule 144 of the Act. As
such, the Shares may not be resold or transferred unless the Company has
received an opinion of counsel and in form reasonably satisfactory to the
Company that such resale or transfer is exempt from the registration
requirements of that Securities Act. Consultant agrees that during
the term of this Agreement, that it will not sell or transfer any of the Shares
issued to it hereunder, except to the Company; nor will it pledge or assign such
Shares as collateral or as security for the performance of any obligation, or
for any other purpose.
4.5 In connection with the acquisition of
the Shares, Consultant represents and warrants to Company, to the best of
its/his knowledge, as follows:
(a) Consultant has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Shares, and any additional information that the Consultant has
requested.
(b) Consultant’s investment in restricted
securities is reasonable in relation to the Consultant’s net
worth. Consultant has had experience in investments in restricted and
publicly traded securities, and Consultant has had experience in investments in
speculative securities and other investments that involve the risk of loss of
investment. Consultant acknowledges that an investment in the Shares
is speculative and involves the risk of loss. Consultant has the
requisite knowledge to assess the relative merits and risks of this investment
without the necessity of relying upon other advisors, and Consultant can afford
the risk of loss of his entire investment in the Shares. Consultant
is an accredited investor, as that term is defined in Regulation D promulgated
under the Securities Act.
(c) Consultant is acquiring the Shares for
the Consultant’s own account for long-term investment and not with a view toward
resale or distribution thereof except in accordance with applicable securities
laws.
5. Non-Assignability
of Services. Consultant’s services under
this contract are offered to the Company only and may not be assigned by the
Company to any entity with which the Company merges or which acquires the
Company or substantially all of its assets wherein the Company becomes a
minority constituent of the combined Company. In the event of such
merger or acquisition, all compensation to Consultant herein under the schedules
set forth herein shall remain due and payable, and any compensation received by
the Consultant may be retained in the entirety by Consultant, all without any
reduction or pro-rating and shall be considered and remain fully paid and
non-assessable. Notwithstanding the non-assignability of Consultant’s
services, the Company shall assure that in the event of any merger, acquisition,
or similar change of form of entity, that its successor entity shall agree to
complete all obligations to Consultant, including the provision and transfer of
all compensation herein, and the preservation of the value thereof consistent
with the rights granted to Consultant by the Company
herein. Consultant shall not assign its rights or delegate its duties
hereunder without the prior written consent of the Company.
6. Expenses. Consultant agrees to pay
for all its expenses (phone, labor, etc.), other than extraordinary items
(travel and entertainment required by/or specifically requested by the Company,
luncheons or dinners to large groups of investment professionals, mass faxing to
a sizable percentage of the Company's constituents, investor conference calls,
print advertisements in publications, etc.) approved by the Company prior to its
incurring an obligation for reimbursement. The Company agrees and understands
that Consultant will not be responsible for preparing or mailing due diligence
and/or investor packages on the Company, and that the Company will have some
means to prepare and mail out investor packages at the Company’s
expense.
7. Indemnification. The Company warrants and
represents that all oral communications, written documents or materials
furnished to Consultant or the public by the Company with respect to financial
affairs, operations, profitability and strategic planning of the Company are
accurate in all material respects and Consultant may rely upon the accuracy
thereof without independent investigation. The Company will protect, indemnify
and hold harmless Consultant against any claims or litigation including any
damages, liability, cost and reasonable attorney's fees as incurred with respect
thereto resulting from Consultant's communication or dissemination of any said
information, documents or materials excluding any such claims or litigation
resulting from Consultant's communication or dissemination of information not
provided or authorized by the Company.
8. Representations. Consultant represents that
it is not required to maintain any licenses and registrations under federal or
any state regulations necessary to perform the services set forth herein.
Consultant acknowledges that, to the best of its knowledge, the performance of
the services set forth under this Agreement will not violate any rule or
provision of any regulatory agency having jurisdiction over Consultant.
Consultant acknowledges that, to the best of its knowledge, Consultant and its
officers and directors are not the subject of any investigation, claim, decree
or judgment involving any violation of the SEC or securities laws. Consultant
further acknowledges that it is not a security Broker Dealer or a registered
investment advisor. Company acknowledges that, to the best of its knowledge,
that it has not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. Company acknowledges that, to the best of its
knowledge, Company is not the subject of any investigation, claim, decree or
judgment involving any violation of the SEC or securities
laws.
9. Legal
Representation. Each of Company and
Consultant represents that they have consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent that they deemed
necessary.
10. Status as
Independent Contractor. Consultant's engagement
pursuant to this Agreement shall be as independent contractor, and not as an
employee, officer or other agent of the Company. Neither party to this Agreement
shall represent or hold itself out to be the employer or employee of the
other. Consultant further acknowledges the consideration provided
hereinabove is a gross amount of consideration and that the Company will not
withhold from such consideration any amounts as to income taxes, social security
payments or any other payroll taxes. All such income taxes and other such
payment shall be made or provided for by Consultant and the Company shall have
no responsibility or duties regarding such matters. Neither the Company nor the
Consultant possesses the authority to bind each other in any agreements without
the express written consent of the entity to be bound.
11. Attorney's
Fee. If any
legal action or any arbitration or other proceeding is brought for the
enforcement or interpretation of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with or related to
this Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs in connection with that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
12. Waiver. The waiver by either party
of a breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach by such other
party.
13. Notices. All notices, requests, and
other communications hereunder shall be deemed to be duly given if sent by U.S.
mail, postage prepaid, addressed to the other party at the address as set forth
herein below:
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To the
Company:
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Attention: Xxxxxxx X. Xxxxxxx,
CEO
0000 X. Xxxxxxx Xx. Xxxxx
000
Xxxxxxx, XX
00000
Facsimile: (000) 000-0000
E-Mail:
XxxxXxxxxxx@XxxxxxXxxxxxxx.xxx
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To the
Consultant:
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Xxxxxxxxx Financial
Communications, Inc.
Attention: Xxxxxxx X. Xxxxxxxxx,
President
0000 XX Xxxxxxxxxxx Xxxx - Xxxxx
000
Xxxx Xxxx,
XX 00000
Facsimile: (000) 000-0000
E-Mail: Xxxx@XXXxxx.xxx
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It is understood that either party may
change the address to which notices for it shall be addressed by providing
notice of such change to the other party in the manner set forth in this
paragraph.
14. Choice of
Law, Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Oregon. The parties agree that Clackamas County, Oregon will be the venue of any
dispute and will have jurisdiction over all parties.
15. Arbitration. Any controversy or claim
arising out of or relating to this Agreement, or the alleged breach thereof, or
relating to Consultant's activities or remuneration under this Agreement, shall
be settled by binding arbitration in Clackamas County, Oregon in accordance with
the applicable rules of the American Arbitration Association, Commercial Dispute
Resolution Procedures, and judgment on the award rendered by the arbitrator(s)
shall be binding on the parties and may be entered in any court having
jurisdiction.
16. Complete
Agreement. This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof. This Agreement and its terms may not be changed orally but only
by an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is
sought.
[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above
written.
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CONSULTANT:
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AGREED TO:
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Xxxxxxxxx
Financial Communications, Inc.
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COMPANY:
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx X.
Xxxxxxxxx
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President and its Duly Authorized
Agent
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By:
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/s/ Xxxxxxx X.
Xxxxxxx
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Xxxxxxx X.
Xxxxxxx
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Chief Executive
Officer
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