-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ns/GuWNnji+W4jDLHTIuDywo8zstFnxmGPOLsmri6uQLn4LLXgTJX7xilp83JBLQ OGqMai4/g/WrWXyAFN9bWg== 0001050234-01-500139.txt : 20010703 0001050234-01-500139.hdr.sgml : 20010703 ACCESSION NUMBER: 0001050234-01-500139 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20010629 EFFECTIVENESS DATE: 20010629 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENSURGE INC CENTRAL INDEX KEY: 0000789879 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 870431533 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64310 FILM NUMBER: 1673058 BUSINESS ADDRESS: STREET 1: 435 WEST UNIVERSAL CIRCLE STREET 2: ------ CITY: SANDY STATE: UT ZIP: 84070 BUSINESS PHONE: 801-601-2765 MAIL ADDRESS: STREET 1: 435 WEST UNIVERSAL CIRCLE STREET 2: --- CITY: SANDY STATE: UT ZIP: 84070 FORMER COMPANY: FORMER CONFORMED NAME: ISHOPPER COM INC DATE OF NAME CHANGE: 20000301 FORMER COMPANY: FORMER CONFORMED NAME: SUNWALKER DEVELOPMENT INC DATE OF NAME CHANGE: 19920703 S-8 1 s8.txt As Filed with the Securities and Exchange Commission on June 28, 2001 Registration No. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 enSurge, Inc. [Formerly iShopper.com, Inc.] (Exact name of registrant as specified in its charter) Nevada 87-0431533 (State or other jurisdiction of (I.R.S. Employer Incorporation or organization) Identification No.) 435 West Universal Circle Sandy, Utah 84070 (Address of Principal Executive Offices) (Zip Code) STOCK UNDERLYING VARIOUS CONSULTING AGREEMENTS BETWEEN REGISTRANT AND CONSULTANTS OF THE REGISTRANT FROHLING, HUDAK & PELLEGRINO, LLC 425 Eagle Rock Avenue Roseland, New Jersey 07068 (Name and address, including zip code of agent for service) (973) 226-4600 (Telephone number, including area code, of agent for service) CALCULTATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Securities Amount to Offering Aggregate Amount of to be be Price Offering Registration Registered Registered per Share* Price* on Fee - ---------- ----------- ---------- -------- ---------- Common 5,550,000 $.05 $227,500 $73.26 Stock, Par Value $.001 Per Share Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) on the basis of the average of the low bid and ask prices of the Common Stock of the Registrant as traded in the over-the-counter market and reported in the Electronic Bulletin Board of the National Association of Securities Dealers on June 26, 2001. /1/ PART I DESCRIPTION OF EXECUTIVE, EMPLOYMENT AND CONSULTING AGREEMENTS The following table sets forth the number of shares of Common stock issued or authorized to be issued pursuant to certain Consulting Agreements attached. Number of Shares covered by this Compensation Registration Agreement Statement - ------------------ ---------------------------------- ---------------- Matthew Carley Consulting Agreement June 15, 2001 2,650,000 shares Matthew Duffy Consulting Agreement June 15, 2001 2,650,000 shares Frohling, Hudak & Letter of Engagement dated June 26, 2001 250,000 shares Pellegrino, LLC TOTAL 5,550,000 shares PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents are incorporated by reference in this registration statement: (a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2000, filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) Registrant's quarterly reports on Form 10-QSB for the fiscal quarters ending June 30, 2000, September 30, 2000 and March 31, 2001. All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, and 15(d) of the Securities Act and Sections 13(a), 13(c), and 14 of the Exchange Act after the date of this registration statement and prior to the filing of a post- effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which registers all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. The authorized capital stock of Registrant consists of one hundred million shares (100,000,000), par value $.001 per share, all of which are designated Common Stock par value $.001 per share. As of June 16, 2001 there were approximately 77,639,875 shares of Common Stock issued and outstanding. /2/ The holders of shares of Common Stock of the Registrant are entitled to dividends when and as declared by the Board of Directors from funds legally available therefore and, upon liquidation, are entitled to share pro rata in any distribution to shareholders. Holders of the Common Stock have one non- cumulative vote for each share held. There are no preemptive, conversion or redemption privileges, nor sinking fund provisions, with respect to the Common Stock. Stockholders are entitled to one vote of each share of Common Stock held of record on matters submitted to a vote of stockholders. The Common Stock does not have cumulative voting rights. As a result, the holders of more than 50% of the shares of Common Stock voting for the election of directors can elect all of the directors if they choose to do so, and, in such event, the holders of the remaining shares of Common Stock will not be able to elect any person or persons to the board of directors of Registrant. Item 5. Interest of Named Experts and Counsel. Not applicable Item 6. Indemnification of Directors and Officers. The Registrant's Articles of Incorporation that the Board of Directors may adopt modifications in the company's by-laws. Pursuant to that authority the by-laws provide that no officer or Director shall be personally liable for any obligations arising out of any acts or conduct of said officer or Director performed for or on behalf of the Corporation. The Corporation shall and does hereby indemnify and hold harmless each person and his heirs and administrators who shall serve at any time hereafter as a Director or officer of the Corporation from and against any and all claims, judgments and liabilities to which such persons shall become subject by reason of his having heretofore or hereafter been a Director or officer of the Corporation, or by reason of any action alleged to have been heretofore or hereafter taken or omitted to have been taken by him as such Director or officer, and shall reimburse each such person for all legal and other expenses reasonably incurred by him in connection with any such claim or liability; including power to defend such person form all suits as provided for under the provisions of the Nevada Business Corporation Act; provided however, that no such person shall be indemnified against, or be reimbursed for, any expense incurred in connection with any claim or liability arising out of his own negligence or willful misconduct. The rights accruing to any person under the foregoing provisions of this section shall not exclude any other right to which he may lawfully be entitled, nor shall anything herein contained restrict the right of the Corporation to indemnify or reimburse such person in any proper case, even though not specifically herein provided for. The Corporation, its directors, officers, employees and agents shall be fully protected in taking any action or making any payment or in refusing so to do in reliance upon advice of counsel. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by registrant of expenses incurred in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. /3/ Except to the extent hereinabove set forth, there is no charter provision, by-law, contract, arrangement or statute pursuant to which any director or officer of registrant is indemnified in any manner against any liability which he may incur in his capacity as such. Item 7. Exemption From Registration Claimed. Not Applicable. Item 8. Exhibits. The exhibits filed as a part of this Report or incorporated herein by reference are as follows: Exhibit No. Item 4.1 Consulting Agreement between Matthew Carley and the Registrant June 15, 2001. 4.2 Consulting Agreement between Matthew Duffy and the Registrant June 15, 2001. 4.3 Letter of Engagement between Frohling, Hudak & Pellegrino, LLC and Registrant June 26, 2001. 5.1 Opinion of Frohling, Hudak & Pellegrino, LLC, regarding the legality of the securities being registered under this Registration Statement. 24.1 Consent of Hansen Barnett & Maxwell, Independent Certified Public Accountants and Auditors. 24.2 Consent of Crouch, Bierwolf & Chisolm, Independent Certified Public Accountants and Auditors. 24.3 Consent of Frohling, Hudak & Pellegrino, LLC, (set forth in the opinion of counsel included as Exhibit 5.1). Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i)To include any prospectus required by section 10(a) (3) of the Securities Act of 1933; (ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; /4/ (iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the act and will be governed by the final adjudication of such issue. /5/ SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sandy, Utah on the 28th day of June, 2001. By: /s/ Scott R. Hosking ------------------------- Scott R. Hosking President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, the following persons in the capacities and on the date indicated have signed this Registration Statement. Signature Title Date - --------------------------- ---------------------- ------------- By: /s/ Scott R. Hosking Chief Executive Officer June 28, 2001 - --------------------------- By: /s/ George Denney Chairman of the Board of June 28, 2001 - --------------------------- Directors By: /s/ Jeff A. Hanks Chief Financial and June 28, 2001 - --------------------------- Accounting Officer, Secretary and Director Majority of the Board of Directors By: /s/ Director June 28, 2001 - -------------------------- By: /s/ Director June 28, 2001 - -------------------------- By: /s/ Director June 28, 2001 - -------------------------- Agreements (see attachments) - -------------------------- /6/ Signature on File INDEX TO EXHIBITS BEING FILED HEREWITH Exhibit No. Item 4.1 Consulting Agreement between Matthew Carley and the Registrant June 15, 2001. 4.2 Consulting Agreement between Matthew Duffy and the Registrant June 15, 2001. 4.3 Letter of Engagement between Frohling, Hudak & Pellegrino, LLC and Registrant June 26, 2001. 5.1 Opinion of Frohling, Hudak & Pellegrino, LLC, regarding the legality of the securities being registered under this Registration Statement. 24.1 Consent of Hansen Barnett & Maxwell, Independent Certified Public Accountants. 24.2 Consent of Crouch, Bierwolf & Chisolm, Independent Certified Public Accountants. 24.3 Consent of Frohling, Hudak, & Pellegrino Counsel for the Registrant (Set forth in the opinion of counsel included as Exhibit 5.1). /7/ EX-4 2 ex4-1.txt CONSULTING AGREEMENT - MATTHEW CARLEY EXHIBIT 4.1 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 Carley (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 this 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, ("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 on behalf of the Corporation purpuant to the terms of this 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 Carley 1188 Brampton Cove Heathrow Florida, 32746 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 Carley ------------------ ------------------ Name: Jeff Hanks Matthew Carley -------------- ------------------ Title: CFO -------------- EX-4 3 ex4-2.txt CONSULTING AGREEMENT - MATTHEW DUFFY 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. EX-4 4 ex4-3.txt LETTER OF ENGAGEMENT EXHIBIT 4.3 FROHLING, HUDAK & PELLEGRINO, LLC COUNSELLORS AT LAW 425 Eagle Rock Avenue Newark, NJ 07101 Roseland, NJ 07068 (973) 622-2800 (973) 226-4600 FAX (973) 226-0969 Please Reply to: X Roseland Newark June 26, 2001 By Fax 801-563-3937 Jeff A. Hanks EnSurge Inc. 435 Universal Circle Sandy, Utah 84070 Re: Letter of Engagement Dear Mr. Hanks: This letter will confirm our agreement to perform specialized legal services necessary to prepare and file the various periodic reports for EnSurge, Inc. with respect to shares to be issued to Mr. Carley and his associate. Our fee will be $7,500 payable as follows: $2,500 payable now and the balance of $5,000 to be paid upon completion of the first filing. If such payment is not made in cash, at the time of the filing 250,000 shares will be included in the Company's next S-8 for this firm of which 50,000 will be returned to the Company in the event $5,000 cash is paid on or before thirty (30) days after the filing date failing the Firm will retain ownership of all the shares advanced. Please advise us of the edgar agent you have used and if you do not have a strong commitment, we would like to use Borer Financial, which has given us a competitive price and very good service. Please acknowledge your acceptance of these terms on the attached copy. Thank you. Sincerely, /s/ John B.M. Frohling ---------------------- JOHN B.M. FROHLING ACCEPTED THIS ___ DAY OF JUNE, 2001 By: /s/ Jeff A. Hanks -------------------- JBMF:caw 3026\ensurge\LOE EX-5 5 ex5-1.txt OPINION OF FROHLING, HUDAK & PELLEGRINO Exhibit 5.1 FROHLING, HUDAK & PELLEGRINO, LLC COUNSELLORS AT LAW 425 EAGLE ROCK AVENUE SUITE 200 NEWARK, NJ 07101 ROSELAND, NJ 07068 (973) 622-2800 (973) 226-4600 FAX (973) 226-0969 Please Reply to: X Roseland Newark June 28, 2001 enSurge, Inc. 8722 South 300 West, Suite 106 Sandy, Utah 84070 Ladies and Gentlemen: You have requested our opinion as U.S. Securities Counsel for enSurge Inc., a Nevada corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, and the registration of an aggregate of five million, five hundred fifty thousand (5,550,000) shares of Common Stock of the Company (the "Shares"), $.001 par value, per share, issued pursuant to various Consulting Agreements between the Company and the Consultants (the "Agreements"). We have examined the Company's Registration Statement on Form S-8 in the form to be filed with the Securities and Exchange Commission on or about June 28, 2001 (the "Registration Statement"), the Agreements, the Certificate of Incorporation of the Company as certified by the Secretary of State of the State of Nevada, the Bylaws and the minute books of the Company as a basis for the opinion hereafter expressed. Based on the foregoing examination, it is our opinion, and we so advise, that upon issuance and sale in the manner described in the Registration Statement and the exhibits thereto, the Shares will be legally issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Frohling, Hudak & Pellegrino, LLC -------------------------------------- FROHLING, HUDAK & PELLEGRINO, LLC EX-24 6 ex24-1.txt CONSENT OF HANSEN, BARNETT & MAXWELL EXHIBIT 24.1 HANSEN, BARNETT & MAXWELL A Professional Corporation CERTIFIED PUBLIC ACCOUNTANTS (801) 532-2200 Member of AICPA Division of Firms Fax (801) 532-7944 Member of SECPS 345 East Broadway, Suite 200 Member of Summit International Associates Salt Lake City, Utah 84111-2693 www.hbmcpas.com CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS To the Board of Directors enSurge, Inc. As independent certified public accountants, we hereby consent to the incorporation by reference in the registration statement on Form S-8 of enSurge, Inc. of our report dated May 15, 2001, relating to the consolidated balance sheet of enSurge, Inc. and subsidiaries as of December 31, 2000 and the related consolidated statements of operations and comprehensive loss, stockholders' equity, and cash flows for the year then ended, which report appears in the 2000 annual report on Form 10-KSB of enSurge, Inc., as amended. /s/ HANSEN, BARNETT & MAXWELL ----------------------------- HANSEN, BARNETT & MAXWELL Salt Lake City, Utah June 25, 2001 EX-24 7 ex24-2.txt CONSENT OF CROUCH, BIERWOLF & CHISOLM CROUCH, BIERWOLF & ASSOCIATES 1453 So8uth Major Street Salt Lake City, Utah 84115 Accountants' Consent We hereby consent to the use of our audit report of Ensurge, Inc. dated March 28, 2000 for the year ended December 31, 1999 in the S-8 Registration Statement. /s/ Crouch, Bierwolf & Associates June 26, 2001 -----END PRIVACY-ENHANCED MESSAGE-----