Exhibit 4.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this December 3, 2001 by and between Paul Kessler (hereinafter referred to as
"Consultant"), an individual, having his principle address at 6363 Sunset
Boulevard Fifth Floor, Hollywood, CA 90028 and eConnect, Incorporated
(hereinafter referred to as the "Company") with offices at 2500 Via Cabrillo
Marina, Suite 112, San Pedro, California, 90731.
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;
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.
-----------
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.
----
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.
--------
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:
Consulting Agreement
December 3, 2001
Page 2
(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;
(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.
4. DUTIES OF THE COMPANY.
---------------------
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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant
the following as consideration for the services rendered under this Agreement:
(a) Option Shares. Consultant shall have the right to
-------------
purchase 8,000,000 shares of eConnect (ECNC) common shares at the average of the
three lowest inter-day trading prices for the twelve (12) trading days prior to
the exercise date discounted by fifty percent (50%). Consultant's rights
regarding these shares shall vest immediately and shall be exercised as set
forth below:
(i) 2,000,000 common shares as of December 3, 2001;
(ii) 2,000,000 common shares on December 17, 2001;
(iii) 2,000,000 common shares on January 7, 2002; and
(iv) 2,000,000 common shares on January 14, 2002.
(b) Non-Option Shares. Within 3 days of the effectiveness of
-----------------
the S-8 Registration Statement (referenced in Section 3(c) above), the Company
shall execute a written request to its transfer agent to prepare and deliver to
Consultant, or it's agent, one common stock certificate for 5,000,000 shares of
freely tradable, non-legend, eConnect Incorporated common stock (to be held in
escrow pursuant to the terms of a separate escrow agreement).
Consulting Agreement
December 3, 2001
Page 3
(b) The Compensation outlined in Section 5(a) above shall be
conveyed through an effective S-8 registration of common shares. In
consideration of the acknowledgment that Consultant has agreed to, and is bound
to engage in various efforts on behalf of the Company, the Company hereby agrees
to exercise "Best Efforts" to assist and cooperate with Consultant in order to
effectuate the effectiveness of the above S-8 Registration Statement, so that
the Registration Statement will become effective within 10 days of the execution
of this Agreement.
5.5 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
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.
----------------------------------
(a) Client. Client agrees to indemnify, defend, and shall hold harmless
------
Consultant and/or his agents, and to defend any action brought against said
parties with respect to any claim, demand cause of action, debt or liability,
including reasonable attorneys' fees to the extent that such action is based
upon a claim that: (i) is true, (ii) would constitute a breach of any of
Client's representations, warranties, or agreements hereunder, or (iii) arises
out of the negligence or willful misconduct of Client, or any Client Content to
be provided by Client and does not violate any rights of third parties,
including, without limitation, rights of publicity, privacy, patents,
copyrights, trademarks, trade secrets, and/or licenses.
(b) Consultant. Consultant agrees to indemnify, defend, and shall hold harmless
----------
Client, its directors, employees and agents, and defend any action brought
against same with respect to any claim, demand, cause of action, or liability,
including reasonable attorneys' fees, to the extent that such an action arises
out of the gross negligence or willful misconduct of Consultant.
(c) Notice. In claiming indemnification hereunder, the indemnified party shall
------
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided Consulting Agreement
December 3, 2001
Page 4
that the indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended to bind
the indemnified party shall not be final without the indemnified party's written
consent, which shall not be unreasonably withheld.
7. MISCELLANEOUS.
-------------
Termination: Subsequent to and no less than 30 days after the execution
-----------
of 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)
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 outlines in Section 5 of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
------------
understanding 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 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
------
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
----------
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
------------
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.
Consulting Agreement
December 3, 2001
Page 5
Disagreements: Any dispute or other disagreement arising from or out of
-------------
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.
eConnect, Inc. CONSULTANT
/s/ Tom Hughes /s/ Paul Kessler
- ----------------------- ------------------------
Tom Hughes, Paul Kessler
CEO Consultant