EXHIBIT 10.5
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") made as of this 15th day
of February, 2000 is by and between eContent, Inc., a Delaware corporation, with
its principal place of business at 000 X. Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 (the "Company"), and Camelot Partners LLC and Xxxxxxxx Xxxxxxxx,
Principal with its principal place of business at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the "Consultant").
R E C I T A L S:
The Company is a public company with a class of equity securities
publicly traded, and desires to retain Consultant to provide certain investment
banking and consulting services.
Consultant has provided acquisition-related and other consulting
services in the past and desires to provide certain additional consulting
services to the Company in accordance with the terms and conditions contained
hereinafter.
The Company does not have cash sufficient to pay for such services and
desires to issue common stock as compensation.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. CONSULTING SERVICES. During the term of this Agreement, Consultant is hereby
retained by the Company to provide accounting and acquisition consulting
services to the Company, as said services relate to corporate finance matters,
including, without limitation, advice regarding acquisitions, consolidations,
mergers, joint ventures, marketing and financial strategies. The services shall
specifically not include securing financing for the Company, which are detailed
in separate agreements. Consultant shall provide such services as reasonably
requested by the Company during the term of this Agreement, provided that
nothing hereunder shall require Consultant to devote a minimum number of hours
per calendar month toward the performance of services hereunder. The level and
scope of services that may reasonably be requested hereunder shall be dependent,
in part, on the amount of compensation to be paid Consultant by the Company
hereunder. Unless otherwise agreed to by Consultant, all services hereunder
shall be performed by Consultant, in its sole discretion, at its principal place
of business or other offices. Notwithstanding anything contained herein to the
contrary, the services to be performed by Consultant hereunder may be performed
by any employee or consultant to Consultant.
2. TERM. The term of this Agreement shall be for one year commencing as of the
date first written above and terminating one day prior to the first anniversary
hereof; provided, however, that this Agreement shall be renewable for subsequent
one year terms, by mutual agreement of the parties in writing, at least thirty
(30) days prior to the expiration of the then current term.
3. COMPENSATION. In consideration for the performance of services hereunder, the
Company hereby agrees to pay Consultant the aggregate sum of 100,000 shares of
the Company's common stock as full compensation for the term of this Agreement.
The Consultant is responsible for all of his incidental out of pocket expenses.
The Company hereby agrees to pay on a pre-approval basis extraordinary expenses
incurred by Consultant in connection with such services to be rendered
hereunder. Consultant may, from time to time, deem it to be in the best
interests of the Company
to retain an outside consultant in connection with certain specific acquisitions
or proposed transactions. In such event, the Company hereby agrees to pay any
and all fees and expenses of such consultant.
4. REPRESENTATIONS OF THE COMPANY. The Company hereby represents and warrants
that any and all information supplied hereunder to Consultant in connection with
any and all services to be performed hereunder by Consultant for and on behalf
of the Company shall be 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 Consultant to adequately provide accounting and acquisition related
consulting services hereunder and/or to initiate and/or effectuate introductions
on behalf of the Company with respect to potential acquisitions is dependent
upon the prompt dissemination of accurate, correct and complete information to
Consultant. In addition, and notwithstanding anything contained herein to the
contrary, nothing hereunder shall obligate Consultant to make any minimum number
of introductions hereunder or to initiate any merger or acquisitions involving
or relating to the Company. The Company further represents and warrants
hereunder that this Agreement and the transactions contemplated hereunder, have
been 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 enforceable in accordance with its terms. The representations and
warranties set forth herein shall survive the termination of this Agreement.
5. INDEMNIFICATION.
The Company hereby agrees to indemnify, defend and hold harmless
Consultant, its officers, directors, principals, employees, affiliates, and
shareholders, and their successors and assigns from and against any and all
claims, damages, losses, liability, deficiencies, actions, suits, proceedings,
costs or legal expenses (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
Consultant, unless such Losses were the result of the intentional misconduct or
gross misconduct of Consultant; or (iii) any and all costs and expenses
(including reasonable attorneys' fees) related to the foregoing, and as more
fully described below.
If Consultant receives written notice of the commencement of any
legal action, suit or proceeding with respect to which the Company is or may be
obligated to provide indemnification pursuant to Section 5 above, Consultant
shall, within thirty (30) days of the receipt of such written notice, give the
Company written notice thereof (a "Claim Notice"). Failure to give such Claim
Notice within such thirty (30) day period shall not constitute a waiver by
Consultant of its right to indemnity hereunder with respect to such action, suit
or proceeding. Upon receipt by the Company of a Claim Notice from Consultant
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), Consultant may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
Company shall cooperate 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. Consultant 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 Consultant unless the Company 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 the Company. The Company 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 Consultant. If the
Company shall fail with reasonable promptness either to defend such Third Party
Claim or to satisfy or settle the same, Consultant may defend, satisfy
or settle the Third Party Claim at the expense of the Company and the Company
shall pay to Consultant the amount of any such Loss within ten (10) days after
written demand therefor. The indemnification provisions hereunder shall survive
the termination of this Agreement.
6. 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.
7. 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 transmitted by facsimile transmission or the third calendar day after
being mailed by United States registered or certified mail, return receipt
requested, postage prepaid, to the addresses herein above first mentioned or to
such other address as any party hereto shall designate to the other for such
purpose in the manner hereinafter set forth.
8. ENTIRE AGREEMENT. This Agreement contains all of the understandings 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.
9. 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, nor 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 any 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.
10. CONSTRUCTION AND ENFORCEMENT. This Agreement shall be construed in
accordance with the laws of the State of Florida, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state or federal courts
located in Palm Beach County in the State of Florida. The parties hereto hereby
accept the exclusive jurisdiction of those courts for the purpose of any such
suit, action or proceeding. Venue for any such action, in addition to any other
venue permitted by statute, will be Palm Beach County, Florida. The parties
hereto hereby irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any judgment entered by any court in respect thereof brought in Palm Beach
County, Florida, and hereby further irrevocably waive any claim that any suit,
action or proceeding brought in Palm Beach County, Florida, has been brought in
an inconvenient forum.
11. BINDING NATURE. The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties, and their respective successors
and assigns.
12. COUNTERPARTS. This Agreement may 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
eContent, Inc.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx, President
Camelot Partners, LLC
By: /s/ XXXXXXXX XXXXXXXX
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Xxxxxxxx Xxxxxxxx
/s/ XXXXXXXX XXXXXXXX
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Xxxxxxxx Xxxxxxxx
