EXHIBIT 4.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") made and
entered into as of the 15th day of June 2001, by and
EnSurge, Inc. (hereinafter the "Corporation"), and Matthew
Duffy (jointly and severally the "Consultant").
1. Appointment of Consultant. The Corporation appoints
the Consultant and the Consultant accepts appointment on the
terms and conditions provided in this Agreement as a
consultant to the Corporation's business, including any
other corporations hereafter formed or acquired by the
Corporation to engage in any business.
2. Scope of Services. The consultants agree to provide
the following services:
A. A review of all major contracts, agreements, and sales
and product promotional documents for the company;
B. The consultant shall coordinate with other consultants
and representatives of the company in providing these
services;
C. To provide Business development assistance including
strategic partnership introductions, terms of deals and
suggestions during negotiations;
D. Sales assistance through the development of business
models and sales strategies as well as introductions to
prospective customers of the Company's product or services;
E. To provide advice regarding strategic high level
product development, planning, and market development, and
F. To provide advise as to public relations with industry
and financial community representatives.
3. Reports. The Consultant shall render monthly
written reports as requested by the Company to include an
outline of the nature of the services provided, the parties
contracted, if any, and all significant transactions and
events.
4. Prohibited Activities. In the event that the
Company registers any of these shares awarded or granted to
the Consultant pursuant to an S-8 Registration Form
promulgated by the U.S. Securities and Exchange Commission,
none of the proceeds from the sale of any of the shares thus
registered shall be used directly or indirectly to finance
the Company, or directly or indirectly to promote the
Company's common stock publicly traded on the over the
counter market. Any violation of this provision shall
constitute a material breach of this agreement. Consultant
agrees that he will comply, during the term of this
agreement, with all applicable state and securities laws and
regulations.
5. Reimbursement of Expenses; Independent Contractor. All
obligations or expenses reasonably incurred by the
Consultant in the performance of its duties under this
Agreement, which are performed with the prior written or
oral approval of the Corporation shall be for the account
of, on behalf of, and at the expense of the Corporation.
Provided that no such written or oral approval shall be
required for reimbursement of any individual expense that is
less than $100. The Consultant shall not be obligated to
make any advance to or for the account of the Corporation
without assurance that the necessary funds are held in
accounts maintained by the Corporation; nor shall the
Consultant be obligated to incur any liability or obligation
for the account of the Corporation without assurance that
the necessary funds for the discharge of such liability or
obligation will be provided. The Corporation shall reimburse
each such expense within 15 days of submission by the
Consultant to the Corporation of a properly documented
expense report. The Consultant shall be an independent
contractor, and nothing contained in this Agreement shall be
deemed or construed (i) to create a partnership or joint
venture between the Corporation and the Consultant; or (ii)
to cause the Consultant to be responsible in any way for the
debts, liabilities or obligations of the Corporation or any
other party; or (iii) to constitute the Consultant or any of
its employees as employees, officers or agents of the
Corporation. The Consultant shall not hold itself out or
permit itself to be regarded (to the extent practical) as an
employee, officer or agent of the Corporation and shall
strictly avoid any act or omission that may reasonably lead
to a contractual or tortuous claim against or liability to
the Corporation.
6. Other Activities of Consultant. The Corporation
acknowledges and agrees that neither the Consultant nor any
of the Consultant's employees, officers, directors,
affiliates or associates shall be required to devote full
time business efforts to the duties of the Consultant
specified in this Agreement, but instead shall devote only
so much of such time and efforts as the Consultant
reasonably deems necessary to fulfill its obligations under
this Agreement. The Corporation further acknowledges and
agrees that the Consultant and its affiliates are engaged in
the business of advising other clients of plans to continue
to be engaged in such businesses during the term of the
Agreement. No aspect or element of such activities shall be
deemed to be engaged in for the benefit of the Corporation
or any of its subsidiaries or to constitute a conflict of
interest.
7. Compensation of Consultant. In consideration of
Consultant's agreement to provide the consulting services
described herein, the Corporation will authorize and issue
2,650,000 shares of common stock of the Corporation to the
Consultant. In the event the Corporation elects to include
the Consultant's shares in a Form S-8 Registration
Statement, such shares shall be subject to the restrictions
set forth in paragraph four.
8. Term. This Agreement shall commence as of the date
hereof and shall remain in effect through July 1, 2002.
9. Termination upon breach. Either the Corporation or the
Consultant may terminate this Agreement in the event of the
breach of any of the material terms or provisions of this
Agreement by the other party, which breach is not cured
within 10 business days after notice of the same is given to
the party alleged to be in breach by the other party.
10. Standard of Care. The Consultant (including any person
or entity acting for or on behalf of the Consultant) shall
not be liable for any damages suffered by the Corporation
which are caused by any mistake of fact, errors of judgment,
or by any acts or omissions of any kind of the Consultant,
unless caused by the intentional misconduct, recklessness or
gross negligence of the Consultant. Consultant agrees that
it will comply with all applicable U.S. federal or state
securities laws and that any material violation thereof will
constitute a breach of this Agreement.
11. Confidentiality. All information, knowledge and data
relating to or concerned with the operations, business and
affairs of the Consultant or the Corporation which are
exchanged by the parties hereto in connection with the
performance by the Consultant of its duties hereunder shall
be the property of the Corporation. The information,
knowledge and data shall be treated as confidential
information and shall be held in a fiduciary capacity by the
parties hereunder. Neither the Consultant nor the
Corporation shall disclose or divulge such information to
any firm, person, corporation, or other entity other than as
required by law or in connection with the performance of its
duties hereunder.
12. Non-Competition. During the "Restricted Period" (as
hereinafter defined), the Consultant agrees not to (and
shall cause each of its employees and affiliates not to)
directly or indirectly, alone or as a partner, officer,
director, employee, consultant, agent, independent
contractor, member or stockholder of an company or person,
engage in (or have a pecuniary, financial or beneficial
interest in) the business of the Corporation. The Consultant
further agrees that, during the Restricted Period, the
Consultant shall not in any capacity, either separately,
jointly or in association with others, directly or
indirectly do any of the following: (a) employ or seek to
employ any person or agent who is then employed or retained
by the Corporation (or who was so employed or retained at
any time within the two (2) years prior to the date either
Consultant employs or seeks to employ such person); and (b)
solicit, induce, or influence any proprietor, partner,
stockholder, lender, director, officer, employee, joint
venture, investor, consultant, agent, lesser, supplier,
customer or any other person which has a business
relationship with the Corporation or any subsidiary, at any
time during the Restricted Period, to discontinue or reduce
or modify the extent of such relationship with the
Corporation. The Restricted Period shall mean that period of
time that commences on the effective date of the Agreement,
June 15, 2001 and terminates on July 1, 2003.
13. Indemnification of Consultant. The Corporation hereby
agrees to indemnify and hold harmless the Consultant and his
heirs, executors, assigns, employees and agents (the
"Indemnified Parties") to the fullest extent permitted by
law for any and all actions of the Consultant taken in good
faith on behalf of the Corporation provided such actions are
not negligent and are or could be construed as being
reasonably required pursuant to the terms of this agreement.
The Corporation further agrees to fully reimburse the
Indemnified Parties for any cost (including attorney's fees
and expenses) of defending any active investigation or civil
action brought against the Indemnified Parties for actions
taken by the Indemnified Parties of behalf of the
Corporation pursuant to the terms of the agreement.
14. Assignment. Without the consent of the Consultant, the
Corporation shall not assign, transfer or convey any of its
rights, duties or interest under this Agreement; nor shall
it delegate any of the obligations or duties required to be
kept or performed by it hereunder. The Consultant shall not
assign, transfer or convey any of its rights, duties or
interests under this Agreement, nor shall it delegate any of
the obligations or duties required to be kept or performed
by it under this Agreement, except that the Consultant may
transfer its rights and obligations hereunder to one if its
affiliates, or to an assignee who utilizes the services of
employees of the Consultant.
15. Notices. All notices, demands, consents, approvals and
requests given by either party to the other hereunder shall
be in writing and shall be personally delivered or sent by
registered or certified mail, return receipt requested,
postage prepaid, to the parties at the following addresses:
If to the Corporation:
EnSurge, Inc.
435 West Universal Circle
Sandy, Utah 84070
If to the Consultant:
Matthew Duffy
122 Oakview Cir.
Lake Mary, FL32746
Any party may at any time change its respective address
by sending written notice to the other party of the
change in the manner hereinabove prescribed.
16. Severability. If any term or provision of this
Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid or enforceable, shall be valid and be enforced to
the fullest extent permitted by law.
17. No Waiver. The failure by any party to exercise any
right, remedy or elections herein contained, or permitted by
law, shall not constitute or be construed as a waiver or
relinquishment for the future exercise of such right, remedy
or election, but the same shall continue and remain in full
force and effect. All rights and remedies that any party may
have at law, in equity or otherwise upon breach of any term
or condition of this Agreement, shall be distinct, separate
and cumulative rights and remedies and no one of them,
whether exercised or not, shall be deemed to be in exclusion
of any other right or remedy.
18. Entire Agreement. This Agreement contains the entire
agreement between the parities hereto with respect to the
matters herein contained and any change or modification must
be in writing and signed by the party against whom
enforcement of the change or modification is sought.
19. Governing Laws This Agreement shall be governed by and
construed in accordance with the laws of the State of
Florida. The sole venue for any action relative to this
agreement shall be in the State or Federal Courts of the
state of Utah.
IN WITNESS WHEREOF, if the parties hereto have caused
this Consulting Agreement to be duly executed by their
authorized representatives as of the date first above
written.
EnSurge, Inc.
By: /s/ Jeff Hanks
/s/ Matthew Duffy
Matthew Duffy
Name: Jeff Hanks
Title: C.F.O.