EXHIBIT 10.48
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CONSULTING AGREEMENT
This Agreement is made and entered into as of the 20th day of September, 1998,
between Heartsoft, Inc. (hereinafter "Heartsoft") and Intercap Funding, LTD.
(hereinafter "Intercap").
WITNESSETH:
WHEREAS, Heartsoft is a public company and its securities are traded on the
over-the-counter market; and
WHEREAS, Intercap has experience in providing financial and business advice to
public and private companies and;
WHEREAS, Heartsoft is seeking and Intercap is willing to furnish business and
financial related advice and services to Heartsoft on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of, and for the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Duties of Intercap.
(a) Intercap provides consulting advisory services; and (i) it is
free to enter into this Agreement and the services to be provided
pursuant to this Agreement are not in conflict with any other
contractual or other obligation to which Intercap is bound. Heartsoft
acknowledges that Intercap is in the business of providing financial
and fund-raising services and consulting advice (of the type
contemplated by this Agreement) to others. Nothing herein contained
shall be construed to limit or restrict Intercap in conducting such
business with respect to others, or rendering such advice to others.
(b) During the term of the Agreement, Intercap will provide Heartsoft
with consulting advice as specified below, provided that Intercap
shall not be required to undertake duties not reasonable within the
scope of the consulting advisory service in which Intercap is engaged
generally. In performance of these duties, Intercap shall provide
Heartsoft with the benefits of its best judgment and efforts. It is
understood and acknowledged by the parties that the value of the
Intercap's advice is not measurable in any quantitative manner and
that the amount of time spent rendering such consulting advice shall
be determined according to Intercap's discretion.
(c) Intercap's duties include, but will not necessarily be limited
to:
1) Advice relating to corporate financing and fund-raising
activities;
2) Recommendations relating to specific business operations and
investments;
3) Advice relating to financial planning; and,
4) Advice relating to the acquisition of other companies.
2. Term:
The term of this Agreement shall be for three (3) years commencing as of the
execution of this Agreement ("Commencement Date"); provided, however, that this
Agreement may be renewed or extended upon such terms and conditions as may be
mutually agreed upon by the parties hereto.
3. Compensation.
As part of this Agreement, Heartsoft shall provide to Intercap or its designees,
1,200,000 shares of Heartsoft's Convertible Preferred stock ("shares") as
consideration for all services anticipated herein.
The shares shall be free and clear of all liens, pledges, charges, claims or
encumbrances, and upon delivery of the certificate(s) evidencing the shares,
Intercap or its designee(s) will acquire good and marketable title to the
shares, free and clear of all liens, pledges, charges, claims, and encumbrances,
except that such shares shall be "restricted" within the meaning of the
Securities Act of 1933 (the "Act).
Intercap acknowledges that the certificate(s) for the shares will be legended to
indicate that the shares represented thereby have not been registered under the
Act, as amended, and were acquired for investment and may not be pledged,
hypothecated, publicly sold or transferred (except to officers, directors,
employees, or designees of Intercap) in the absence of a Registration Statement
effective under the Act for the shares or an opinion of counsel satisfactory to
Heartsoft that registration is not required under the Act.
4. Good Faith Performance.
In the performance of its services, Intercap shall be obligated to act in good
faith, and shall not be liable to Heartsoft for errors in judgment not the
result of willful misconduct. Intercap may look to such others for such factual
information, economic advice and/or research upon which to base its advice to
Heartsoft thereunder as Intercap shall in good ▇▇▇▇▇ ▇▇▇▇ appropriate.
5. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, if to
Heartsoft, addressed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or if to Intercap, addressed to it at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or to such address as may be
hereafter designated in writing by one party to the other. Such
notice or other communications shall be deemed to be given on the
date mailed.
(b) This Agreement embodies the entire Agreement and understanding
between Heartsoft and Intercap and supersedes any and all
negotiation, prior discussions and preliminary and prior agreements
and understandings related to the subject matter hereof.
(c) This Agreement has been duly authorized, executed and delivered
by and on behalf of Heartsoft and Intercap.
(d) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Oklahoma.
(e) This Agreement and rights hereunder may not be assigned by either
party (except by operation or law) and shall be binding upon and
ensure to the benefit of the parties and their respective successors,
assigns and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
HEARTSOFT, INC.
BY: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
INTERCAP FUNDING, LTD.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇
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