Exhibit
10.1


 


CONSULTING
AGREEMENT


 


THIS
CONSULTING AGREEMENT (“Agreement”) made this 19th day of December, 2022 (the “Effective Date”) between
SurgePays, Inc., a Nevada corporation (the “Company”) and Jay Jones, an individual (the “Consultant”).


 


	A.	The
                                            Company is engaging Consultant as a consultant to provide advice to the Board of Directors
                                            of the Company (“the Board”) and senior management of the Company regarding
                                            general business matters.



 


	B.	Consultant
                                            was previously a member of the Board and has industry and Company knowledge that is valuable
                                            to the Company and its ongoing business ventures.



 


	C.	The
                                            Company and the Consultant wish to formally record the terms and conditions of Consultant’s
                                            engagement.



 


	D.	Each
                                            of the Company and the Consultant has agreed to the terms and conditions set forth in this
                                            Agreement, as evidenced by their respective execution hereof.



 


NOW
THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:


 


aRTICLE
1: CONTRACT FOR SERVICES


 


	1.1	Engagement
                                            of Consultant. The Company hereby agrees to engage the Consultant in accordance with
                                            the terms and provisions hereof.



 


		(a)	Term.
                                            Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence
                                            on the Effective Date and will continue for a period of twelve (12) months therefrom (the
                                            “Term”).



 


		(b)	Service.
                                            The Consultant agrees to faithfully, honestly and diligently serve the Company and to devote
                                            the time, attention efforts to further the business interests of the Company and utilize
                                            the Consultant’s professional skills and care during the Term.



 


		1.2	Duties:
                                            The Consultant’s services hereunder will be provided on the basis of the following
                                            terms and conditions:



 


		(a)	The
                                            Consultant will report directly to the Board and senior management of the Company.



 


		(b)	The
                                            Consultant will be responsible for advising senior management of the Company in respect of
                                            general business matters and ongoing ventures, subject to any applicable law and to instructions
                                            provided by the Board or senior management of the Company from time to time (“Services”).



 


		(c)	The
                                            Consultant will be available for a minimum of as requested by the Board and senior management,
                                            as applicable, to provide Services and Consultant understands that it may be necessary to
                                            travel to the Company’s offices from time to time to provide the Services.



 






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		(d)	The
                                            Consultant will faithfully, honestly and diligently serve the Company and cooperate with
                                            the Company and utilize maximum professional skill and care to ensure that all Services rendered
                                            hereunder are to the satisfaction of the Company. The Consultant will act reasonably to provide
                                            the Services by reason of Consultant’s capability which Consultant knows or ought to
                                            know to be necessary to ensure that the best interests of the Company are maintained.



 


		(e)	The
                                            Consultant will assume, obey, implement and execute such duties, directions, responsibilities,
                                            procedures, policies and lawful orders as may be determined or given from time to time by
                                            the Company in the provision of Services.



 


		(f)	The
                                            Consultant will report the results of Consultant’s duties hereunder to the Company
                                            upon completion of any assignment or designated task and as the Company may request from
                                            time to time.



 


ARTICLE
2: COMPENSATION


 


	2.1	Stock
                                            Options. Following an annual or special meeting of the Company’s stockholders at
                                            which such stockholders approve the SurgePays, Inc. 2022 Omnibus Securities and Incentive
                                            Plan (“Incentive Plan”), the Consultant will receive stock options with a value
                                            of $5,000 on the first trading day of each calendar month during the term. Each month’s
                                            options will have an exercise price equal to the fair market value of the Company’s
                                            common stock on the last trading day of the previous calendar month. All options granted
                                            on the first trading day of each calendar month shall vest immediately. The options will
                                            be issued in accordance with the terms of the Incentive Plan.



 


	2.2	Independent
                                            Contractor. The Consultant’s status during the Term shall be that of an independent
                                            contractor and not, for any purpose, that of an employee or agent with authority to bind
                                            the Company in any respect. All payments and other consideration made or provided to the
                                            Consultant under this Article 2 shall be made or provided without withholding or deduction
                                            of any kind, and the Consultant shall assume sole responsibility for discharging all tax
                                            or other obligations associated therewith.



 


	2.3	Expense
                                            Reimbursements. During the Term, the Company shall reimburse the Consultant for (i) all
                                            reasonable out-of-pocket expenses incurred by the Consultant in attending any in-person meetings,
                                            provided that the Consultant complies with the generally applicable policies, practices
                                            and procedures of the Company for submission of expense reports, receipts or similar documentation
                                            of such expenses, and (ii) any costs associated with filings required to be made by the Consultant
                                            or any of the entities managed or controlled by Consultant to report beneficial ownership
                                            or the acquisition or disposition of securities of the Company. Any reimbursements for allocated
                                            expenses (as compared to out-of-pocket expenses of the Consultant) must be approved in advance
                                            by the Company.



 


ARTICLE
3: CONFIDENTIALITY AND NON-COMPETITION


 


	3.1	Maintenance
                                            of Confidential Information.



 


		(a)	The
                                            Consultant acknowledges that, in the course of performing the Consultant’s obligations
                                            hereunder, the Consultant will, either directly or indirectly, have access to and be entrusted
                                            with confidential information (whether oral, written or by inspection) relating to the Company
                                            or its respective affiliates, associates or customers (the “Confidential Information”).



 






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		(b)	The
                                            Consultant acknowledges that the Company’s Confidential Information constitutes a proprietary
                                            right, which the Company is entitled to protect, and the Consultant will keep in strict confidence
                                            the Company’s Confidential Information and will not, without prior written consent
                                            of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information,
                                            directly or indirectly, to any third party.



 


		(c)	The
                                            Consultant agrees that, upon termination of the Consultant’s services for the Company,
                                            the Consultant will immediately surrender to the Company all Company Confidential Information
                                            then in Consultant’s possession or under Consultant’s control.



 


		3.2	Exceptions.
                                            The general prohibition contained in Section 3.1 against the unauthorized disclosure, use
                                            or dissemination of the Company’s Confidential Information will not apply to the extent
                                            that any Company Confidential Information:



 


		(a)	is
                                            available to the public generally;



 


		(b)	becomes
                                            part of the public domain through no fault of the Consultant;



 


		(c)	is
                                            evidenced to have been already in the lawful possession of the Consultant at the time of
                                            receipt of the Company’s Confidential Information; or



 


		(d)	is
                                            compelled by applicable law or regulation to be disclosed, provided that the Consultant gives
                                            the Company prompt written notice of such requirement prior to such disclosure and provides
                                            commercially reasonable assistance at the request and expense of the Company, in obtaining
                                            an order protecting the Company’s Confidential Information from public disclosure.



 


ARTICLE
4: TERMINATION


 


	4.1	Termination
                                            of Engagement. Either party may terminate this Agreement for any reason upon thirty (30)
                                            days written notice.






 


ARTICLE
5: MUTUAL REPRESENTATIONS


 


	5.1	The
                                            Consultant represents and warrants to the Company that the execution and delivery of this
                                            Agreement and the fulfillment of the terms hereof



 


		(a)	will
                                            not constitute a default under or conflict with any agreement or other instrument to which
                                            Consultant is a party or by which Consultant is bound; and (b) do not require the consent
                                            of any other person or entity.



 


	5.2	The
                                            Company represents and warrants to the Consultant that this Agreement has been duly authorized,
                                            executed and delivered by the Company and that the fulfillment of the terms hereof.



 


		(a)	will
                                            not constitute a default under or conflict with any agreement of other instrument to which
                                            it is a party or by which it is bound; and (b) do not require the consent of any person of
                                            entity.



 






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	5.3	Each
                                            party hereto warrants and represents to the other that this Agreement constitutes the valid
                                            and binding obligation of such party enforceable against such party in accordance with its
                                            terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting
                                            creditors’ rights generally, and subject, as to enforceability, to general principles
                                            of equity (regardless of whether enforcement is sought in proceedings in equity or at law).



 


ARTICLE
6: NOTICES


 


	6.1	Notices.
                                            All notices required or allowed to be given under this Agreement must be made either personally
                                            by delivery to or by facsimile transmission to the address as hereinafter set forth or to
                                            such other address as may be designated from time to time by such party in writing:



 


		(a)	in
                                            the case of the Company, to:



 


SurgePays,
Inc.


3124
Brother Blvd, Suite 104


Bartlett,
TN 38133


Attn:
Kevin Brian Cox, Chief Executive Officer


Telephone:


 


with
a copy to


 


Lucosky
Brookman LLP


101
Wood Avenue South


Woodbridge,
New Jersey 08830


Attn:
Joseph M. Lucosky, Esq.


Telephone:
(732) 395-4400


Facsimile:
(732) 395-4401


 


To
be provided under separate cover within three days after the date hereof; in the event that Consultant does not receive notice of address
within such period, then Consultant shall be entitled to send any notice to any email address of the Company known to Consultant and
the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.


 


		(b)	and
                                            in the case of the Consultant, to the Consultant’s last residence address known to
                                            the Company.



 


	6.2	Change
                                            of Address. Any party may, from time to time, change its address for service hereunder
                                            by written notice to the other party in the manner aforesaid.



 


ARTICLE
7: GENERAL


 


	7.1	Indemnification.
                                            The Company agrees to indemnify the Consultant for his activities as a consultant as set
                                            forth in the Indemnification Agreement attached hereto as Exhibit A.



 


	7.2	Non-Waiver
                                            of Rights. The failure to enforce at any time the provisions of this Agreement or to
                                            require at any time performance by the other party hereto of any of the provisions hereof
                                            shall in no way be construed to be a waiver of such provisions or to affect either the validity
                                            of this Agreement or any part hereof, or the right of either party hereto to enforce each
                                            and every provision in accordance with its terms. No waiver by either party hereto of any
                                            breach by the other party hereto of any provision of this Agreement to be performed by such
                                            other party shall be deemed a waiver of similar or dissimilar provisions at that time or
                                            at any prior or subsequent time.



 






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	7.3	Binding
                                            Effect/Assignment. This Agreement shall inure to the benefit of and be binding upon the
                                            parties hereto and their respective heirs, executors, personal representatives, estates,
                                            successors (including, without limitation, by way of merger) and assigns, as applicable.
                                            Notwithstanding the provisions of the immediately preceding sentence, neither the Consultant
                                            nor the Company shall assign all or any portion of this Agreement without the prior written
                                            consent of the other party.



 


	7.4	Further
                                            Assurances. Each party hereto will promptly and duly execute and deliver to the other
                                            party such further documents and assurances and take such further action as such other party
                                            may from time to time reasonably request in order to more effectively carry out the intent
                                            and purpose of this Agreement and to establish and protect the rights and remedies created
                                            or intended to be created hereby.



 


	7.5	Waiver.
                                            No provision hereof will be deemed waived and no breach excused, unless such waiver or consent
                                            excusing the breach is made in writing and signed by the party to be charged with such waiver
                                            or consent. A waiver by a party of any provision of this Agreement will not be construed
                                            as a waiver of a further breach of the same provision.



 


	7.6	Amendments
                                            in Writing. No amendment, modification or rescission of this Agreement will be effective
                                            unless set forth in writing and signed by the parties hereto.



 


	7.7	Assignment.
                                            Except as herein expressly provided, the respective rights and obligations of the Consultant
                                            and the Company under this Agreement will not be assignable by either party without the written
                                            consent of the other party and will, subject to the foregoing, inure to the benefit of and
                                            be binding upon the Consultant and the Company and their permitted successors or assigns.
                                            Nothing herein expressed or implied is intended to confer on any person other than the parties
                                            hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement.
                                            For the avoidance of doubt, it is agreed that in the event that the Company participates
                                            in a merger, acquisition, restructuring, reorganization or other transaction in which the
                                            Company is merged into, sold to or otherwise becomes part of or owned by another company
                                            or entity, this Agreement will remain in force and be binding on any such successor, surviving
                                            or acquiring company or entity.



 


	7.8	Severability.
                                            In the event that any provision contained in this Agreement is declared invalid, illegal
                                            or unenforceable by a court or other lawful authority of competent jurisdiction, such provision
                                            will be deemed not to affect or impair the validity or enforceability of any other provision
                                            of this Agreement, which will continue to have full force and effect.



 


	7.9	Headings.
                                            The headings in this Agreement are inserted for convenience of reference only and will not
                                            affect the construction or interpretation of this Agreement.



 


	7.10	Number
                                            and Gender. Wherever the singular or masculine or neutral is used in this Agreement,
                                            the same will be construed as meaning the plural or feminine or a body politic or corporate
                                            and vice versa where the context so requires.



 


	7.11	Attorneys’
                                            Fees. The Company agrees that the Consultant shall be entitled to recover from the Company
                                            all of its reasonable attorneys’ fees and expenses incurred solely relating to any
                                            action or proceeding in connection with the collection of Consultants’ Fees.



 


	7.12	Taxability.
                                            In the event of any tax assessment attributable to any portion of Consultant’s Fees
                                            by the IRS or other governmental authority due to Consultant’s failure to report 1099
                                            income or due to misclassification (“Breach”), then, as a result of such Breach,
                                            the Company shall be authorized to cancel all future payments due under this Agreement to
                                            offset any amounts the Company would be required to pay to or on behalf of Consultant.



 






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	7.13	Governing
                                            Law. This Agreement and the legal relations among the parties shall be governed by, and
                                            construed and enforced in accordance with, the laws of the State of Nevada, without regard
                                            to its conflict of laws rules. The parties hereto hereby irrevocably and unconditionally
                                            (i) agree that any action or proceeding arising out of or in connection with this Agreement
                                            shall be brought in any court of the State of Nevada (the “Nevada Court”),
                                            and not in any other state or federal court in the United States of America or any court
                                            in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada
                                            Court for purposes of any action or proceeding arising out of or in connection with this
                                            Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding
                                            in the Nevada Court, and (v) waive, and agree not to plead or to make, any claim that any
                                            such action or proceeding brought in the Nevada Court has been brought in an improper or
                                            inconvenient forum.



 


	7.14	Entire
                                            Agreement. This Agreement constitutes the entire agreement between the Parties with respect
                                            to the subject matter thereof and supersedes all prior agreements, understandings and negotiations,
                                            both written and oral, between the Parties with respect to this matter.



	7.15	Counterparts.
                                            This Agreement may be executed in two or more counterparts, each of which shall be deemed
                                            to be an original but all of which together shall constitute one and the same instrument.



 


[-Signature
Page Follows-]


 






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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.


 





	 	Company:
	 	 	 
	 	SurgePays, Inc.
	 	 	 
	 	By:	/s/ Kevin
    Brian Cox
	 	Name: 	Kevin Brian
    Cox
	 	Title: 	Chief Executive
    Officer
	 	 	 
	 	Consultant:
	 	 	 
	 	By:	/s/ Jay
    Jones
	 	Name:	Jay Jones


 






    	 



     


    

 


Exhibit
A


 


Indemnification
Agreement


 


[see
attached]