Exhibit 4.4
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT (this "Agreement") is entered into as of
July 29, 2004 by and between ACS Holdings, Inc., a Nevada corporation (the
"Company"), and Reskin & Associates, a Kentucky sole proprietorship (the
"Consultant").
RECITALS
A. The Company desires to be assured of the association and services of
Consultant and to avail itself of Consultant's experience, skills, abilities,
knowledge and background and is therefore willing to engage Consultant upon the
terms and conditions set forth herein; and
B. Consultant agrees to be engaged and retained by the Company upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. Consulting Services. Consultant shall provide legal services to the
Company, as provided in that certain engagement agreement dated July 19, 2004,
by and between Consultant and the Company (the "Consulting Services").
2. Term. The term of this Agreement shall commence as of the date hereof
and shall be effective a period of one year (the "Term"). This agreement may be
extended under the same terms by mutual agreement between Consultant and the
Company.
3. Direction, Control and Coordination. Consultant shall perform the
Consulting Services under the sole direction and with the approval of the
Company's Board of Directors or an officer of the Company to whom such direction
is delegated by resolution of the Board of Directors.
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4. Dedication of Resources. Consultant shall devote such time, attention
and energy as is necessary to perform and discharge the duties and
responsibilities under this Agreement in an efficient, trustworthy and
professional manner.
5. Standard of Performance. Consultant shall use its best reasonable
efforts to perform its consulting services as an advisor to the Company in an
efficient, trustworthy and professional manner. Consultant shall perform its
consulting services to the sole satisfaction of, and in conjunction and
cooperation with, the Company.
6. Compensation. The Company shall pay to Consultant a total of one
hundred thirty-five million (135,000,000) shares of common stock of the Company
(the "Common Stock") in exchange for the Consulting Services. The Company shall
issue certificates representing the Common Stock only to the natural person(s)
employed by, or otherwise working for, Consultant who provide the Consulting
Services.
7. Registration of the Common Stock. Commencing on the date hereof, the
Company shall use its best efforts to promptly register the Common Stock
pursuant to the Securities Act of 1933, as amended, on Securities and Exchange
Commission ("SEC") Form S-8. Consultant hereby covenants that if any natural
person performing the Consulting Services becomes a director, officer, holder of
ten percent (10%) of the equity and/or voting securities of the Company, or is,
or becomes an "affiliate" of the Company (for the purposes of this Agreement,
"affiliate" shall mean an affiliate of, or person affiliated with, a specified
person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the person specified), he
or she will not offer to sell or resell the Common Stock registered on Form S-8,
except pursuant to the provisions of SEC Rule 144, pursuant to a reoffer
prospectus in compliance with Form S-8 or pursuant to such other registration
statement acceptable to the Company in its sole discretion.
8. Knowledge of Investment and its Risks. Consultant has knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Consultant's investment in the Common Stock. Consultant
understands that an investment in the Company represents a high degree of risk
and there is no assurance that the Company's business or operations will be
successful. Consultant has considered carefully the risks attendant to an
investment in the Company, and that, as a consequence of such risks, Consultant
could lose Consultant's entire investment in the Company.
9. Investment Intent. Consultant hereby represents and warrants that (i)
it is acquiring the Common Stock for investment for Consultant's own account,
not as a nominee or agent and not with a view to the resale or distribution of
all or any part of the Common Stock, and Consultant has no present intention of
selling, granting any participation in or otherwise distributing any of the
Common Stock within the meaning of the Securities Act of 1933, as amended (the
"Securities Act") and (ii) Consultant does not have any contracts,
understandings, agreements or arrangements with any person and/or entity to
sell, transfer or grant participations to such person and/or entity, with
respect to any of the Common Stock.
10. Accredited Investor. Consultant is an "Accredited Investor," as that
term is defined by Rule 501 of Regulation D promulgated under the Securities
Act.
11. Disclosure. Consultant has reviewed information provided by the
Company in connection with the decision to purchase the Stock, including
Consultant's publicly-available filings with the SEC. The Company has provided
Consultant with all the information that Consultant has requested in connection
with the decision to purchase the Common Stock. Consultant further represents
that Consultant has had an opportunity to ask questions and receive answers from
the Company regarding the business, properties, prospects and financial
condition of the Company. All such questions have been answered to the full
satisfaction of Consultant.
12. No Registration. Consultant understands that it must bear the economic
risk of its investment in the Company for an indefinite period of time.
Consultant further understands that (i) neither the offering nor the sale of the
Common Stock has been registered under the Securities Act or any applicable
state securities laws or securities laws of other applicable jurisdictions in
reliance upon exemptions from the registration requirements of such laws, (ii)
the Common Stock must be held by Consultant indefinitely unless the sale or
transfer thereof is subsequently registered under the Securities Act and any
applicable state securities laws, or an exemption from such registration
requirements is available, (iii) Section 7 notwithstanding, the Company is not
hereby under an obligation to register any of the Common Stock on Consultant's
behalf or to assist Consultant in complying with any exemption from
registration, and (iv) Consultant will rely upon the representations and
warranties made by the Company in this Agreement in order to establish such
exemptions from the registration requirements of the Securities Act and
applicable state securities laws or securities laws of other applicable
jurisdictions.
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13. Transfer Restrictions. Consultant will not transfer any of the Common
Stock unless such transfer is exempt from registration under the Securities Act
and applicable state securities laws or securities laws of other applicable
jurisdictions, and, if requested by the Company, Consultant has furnished an
opinion of counsel satisfactory to the Company that such transfer is so exempt.
Consultant understands and agrees that (i) the certificate or certificates
evidencing the Common Stock will bear appropriate legends indicating such
transfer restrictions placed upon the Common Stock, (ii) the Company shall have
no obligation to honor transfers of any of the Common Stock in violation of such
transfer restrictions, and (iii) the Company shall be entitled to instruct any
transfer agent or agents for the securities of the Company to refuse to honor
such transfers.
14. Legends. Consultant understands that certificates or other evidence of
the Common Stock may bear a legend substantially similar to the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT THAT IS THEN APPLICABLE TO THE SHARES,
AS TO WHICH THE PRIOR OPINION OF COUNSEL MAY BE REQUIRED BY THE ISSUER OR
ISSUER'S TRANSFER AGENT.
15. Additional Covenants. Consultant covenants that it shall not engage in
any activities which are in connection with the offer or sale of securities of
the Company in a capital-raising transaction or directly or indirectly promote
or maintain a market for the Company's securities.
16. Confidential Information. Consultant recognizes and acknowledges that
by reason of performance of Consultant's services and duties to the Company
(both during the Term and before or after it) Consultant has had and will
continue to have access to confidential information of the Company and its
affiliates, including, without limitation, information and knowledge pertaining
to products and services offered, inventions, innovations, designs, ideas,
plans, trade secrets, proprietary information, advertising, distribution and
sales methods and systems, and relationships between the Company and its
affiliates and customers, clients, suppliers and others who have business
dealings with the Company and its affiliates ("Confidential Information").
Consultant acknowledges that such Confidential Information is a valuable and
unique asset and covenants that it will not, either during or for three (3)
years after the term of this Agreement, disclose any such Confidential
Information to any person for any reason whatsoever or use such Confidential
Information (except as its duties hereunder may require) without the prior
written authorization of the Company, unless such information is in the public
domain through no fault of Consultant or except as may be required by law. Upon
the Company's request, Consultant will return all tangible materials containing
Confidential Information to the Company.
17. Relationship. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the parties, and
may not be construed as an employment agreement. No officer, employee, agent,
servant, or independent contractor of Consultant nor its affiliates shall at any
time be deemed to be an employee, agent, servant, or broker of the Company for
any purpose whatsoever solely as a result of this Agreement, and Consultant
shall have no right or authority to assume or create any obligation or
liability, express or implied, on the Company's behalf, or to bind the Company
in any manner or thing whatsoever.
18. Notices. Any notice required or desired to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered, sent by an overnight courier service, or sent by certified or
registered mail to the following addresses, or such other address as to which
one party may have notified the other in such manner:
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If to the Company: Reskin & Associates
Suite 400, The Marmaduke Building
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Consultant: The Xxxx Law Group, PLLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
19. Applicable Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the State of
Washington.
20. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions of this Agreement.
21. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by such party. No waiver shall be valid unless
in writing and signed by an authorized officer of the Company or Consultant.
22. Assigns and Assignment. This Agreement shall extend to, inure to the
benefit of and be binding upon the parties hereto and their respective permitted
successors and assigns; provided, however, that this Agreement may not be
assigned or transferred, in whole or in part, by Consultant except with the
prior written consent of the Company.
23. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to its subject matter. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
24. Counterparts. This Agreement may be executed by facsimile and in
counterparts each of which shall constitute an original document, and both of
which together shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
The Company: ACS HOLDINGS, INC.
By:
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Name: Xxxxxx X. Xxxxx XX
Title: President and Chief Executive Officer
Consultant: RESKIN & ASSOCIATES
By:
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Name: Xxxxx X. Xxxxxx
Title: President
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