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Exhibit 4.1
Liberty Mint, Ltd.
Form S-8
BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated June 6, 2001 and is
entered into by and between LIBERTY MINT, LTD. (hereinafter
"LBMT" or "CLIENT") and WINDSOR PARTNERS, INC. (hereinafter
"WPI").
1. Conditions. This Agreement will not take effect, and WPI
will have no obligation to provide any service whatsoever,
unless and until CLIENT returns a signed copy of this
Agreement to WPI (either by mail or facsimile copy).
Upon execution of this Agreement, CLIENT agrees to fully
cooperate with WPI in carrying out the purposes of this
Agreement, keep WPI informed of any developments of
importance pertaining to CLIENT's business and abide by this
Agreement in its entirety.
2. Scope and Duties. During the term of this Agreement, WPI
will perform the following services for CLIENT:
2.1 Advice and Counsel. WPI will provide advice and counsel
regarding CLIENT's strategic business plans, strategy and
negotiations with potential business strategic partners,
corporate planning and or other general business consulting needs
as expressed by CLIENT.
2.2 Mergers and Acquisitions. WPI will provide assistance to
CLIENT, as mutually agreed, in identifying merger and / or
acquisition candidates, assisting in any due diligence process,
recommending transaction terms and providing advice and
assistance during negotiations, as needed.
2.3 CLIENT and/or CLIENT's Affiliate Transaction Due Diligence.
WPI will participate and assist CLIENT in the due diligence
process, where possible, on all proposed financial transactions
affecting CLIENT, of which WPI is notified in writing in advance,
including conducting investigation of and providing advice on the
financial, valuation and stock price implications of the proposed
transaction(s).
2.4 Ancillary Document Services. If necessary, WPI will assist
and cooperate with CLIENT in the development, editing and
production of such documents as are reasonably necessary to
assist in any transaction covered by this Agreement. However,
this Agreement will not include the preparation or procuring of
legal documents or those documents normally prepared by an
attorney.
2.5 Additional Duties. CLIENT and WPI shall mutually agree, in
writing, for any additional duties that WPI may provide to CLIENT
for compensation paid or payable by CLIENT under this Agreement.
Although there is no requirement to do so, such additional
agreement(s) may be attached hereto and made a part hereof by
written amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
2.6 Standard of Performance. WPI shall devote such time and
efforts to the affairs of the CLIENT as is reasonably necessary
to render the services contemplated by this Agreement.
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2.7 Any work or task of WPI provided for herein which requires
CLIENT to provide certain information to assist WPI in completion
of the work shall be excused (without effect upon any obligation
of CLIENT) until such time as CLIENT has fully provided all
information and cooperation necessary for WPI to complete the
work. The services of WPI shall not include the rendering of any
legal opinions or the performance of any work that is in the
ordinary purview of a certified public accountant, or other
licensed professional. WPI cannot guarantee results on behalf of
CLIENT, but shall use commercially reasonable efforts in
providing the services listed above. If an interest is
communicated to WPI regarding satisfying all or part of CLIENT's
business and corporate strategic planning needs, WPI shall notify
CLIENT and advise it as to the source of such interest and any
terms and conditions of such interest.
2.8 Non-Guarantee. WPI MAKES NO GUARANTEE THAT WPI WILL BE ABLE
TO SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN
CONSUMMATE A MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO
SUCCESSFULLY COMPLETE SUCH A TRANSACTION WITHIN CLIENT'S DESIRED
TIME FRAME. NEITHER ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOR THE PAYMENT OF DEPOSITS TO WPI BY CLIENT PURSUANT TO FEE
AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE
CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING
POTENTIAL TIME FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF
CLIENT'S NEEDS ARE EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES
OF THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3.Compensation to WPI
1.1 Issuance of Shares for Entering into Agreement. As
consideration for WPI entering into this Agreement, Client agrees
to cause 2,000,000 shares of its common stock, par value $.001
per share, to be issued in equal quantities to Xxxxxxx Xxxxxx and
Xxxxx Xxxxxx affiliates of WPI. When issued, said shares shall be
free trading shares, registered with the U.S. Securities and
Exchange Commission on its Form S-8 or similar registration. The
registration and issuance of said shares shall take place by no
later than 10 business days following the execution and delivery
of this Agreement, and all costs in connection therewith shall be
borne by Client.
NOTE: WPI SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES
PROVIDED FOR HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT
RECEIVED BY WPI WITHIN 10 DAYS OF MUTUAL EXECUTION OF
THIS AGREEMENT BY THE PARTIES. IN ADDITION, WPI'S
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF
ANY PAYMENT OWING HEREUNDER IS MORE THAN TEN (10) DAYS
DELINQUENT. FURTHERMORE, THE RECEIPT OF ANY FEES DUE TO
WPI UPON EXECUTION OF THIS AGREEMENT ARE NOT CONTINGENT
UPON ANY PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER
DESCRIBED WITHIN THIS AGREEMENT.
1.2 Fees for Merger/Acquisition. In the event that WPI, assists
CLIENT and / or introduces CLIENT (or a CLIENT affiliate) to any
third party, merger partner(s) or joint venture(s) who then
enters into a merger, joint venture or similar agreement with
CLIENT or CLIENT's affiliate, CLIENT hereby agrees to pay WPI
advisory fees pursuant to the following schedule which are based
on the aggregate amount of such merger, joint venture or similar
agreement with CLIENT or CLIENT's affiliate. Advisory fees are
deemed earned and shall be due and payable at the first close of
the transaction, however, in certain circumstances when payment
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of advisory fees at closing is not possible, within 24
hours after CLIENT business combination. This provision
shall survive this Agreement for a period of one year
after termination or expiration of this Agreement. In
other words, the advisory fee shall be deemed earned and
due and payable for any merger, joint venture or similar
transaction which first closes within a year of the
termination or expiration of this Agreement as a result
of an introduction as set forth above.
1.3 Merger/Acquisition. For a merger/acquisition entered into
by CLIENT as a result of the efforts of, or an introduction by
WPI during the term of this Agreement, Client shall pay WPI,
seven (7) percent of the total value of the transaction. For a
merger/acquisition entered into by CLIENT as a result of the
efforts of WPI and the introduction by CLIENT during the term of
this Agreement, Client shall pay WPI, five (5) percent of the
total value of the transaction. Such percentage(s) shall be paid
to WPI in the same ratio of cash and / or stock as the
transaction.
1.4 Expenses. CLIENT shall reimburse WPI for reasonable expenses
incurred in performing its duties pursuant to this Agreement
(including printing, postage, express mail, photo reproduction,
travel, lodging, and long distance telephone and facsimile
charges); provided, however, that WPI must receive prior written
approval from CLIENT for any expenses over $ 500. Such
reimbursement shall be payable within 7 seven days after CLIENT's
receipt of WPI invoice for same.
1.5 Additional Fees. CLIENT and WPI shall mutually agree upon
any additional fees that CLIENT may pay in the future for
services rendered by WPI under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be
attached hereto and made a part hereof as Exhibits beginning with
Exhibit A.
2. Indemnification. The CLIENT agrees to indemnify and hold
harmless WPI, each of its officers, directors, employees and
shareholders against any and all liability, loss and costs,
expenses or damages, including but not limited to, any and all
expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason
of any injury (whether to body, property, personal or business
character or reputation) sustained by any person or to any person
or property, arising out of any act, failure to act, neglect, any
untrue or alleged untrue statement of a material fact or failure
to state a material fact which thereby makes a statement false or
misleading, or any breach of any material representation,
warranty or covenant by CLIENT or any of its agents, employees,
or other representatives. Nothing herein is intended to nor
shall it relieve either party from liability for its own willful
act, omission or negligence. All remedies provided by law, or in
equity shall be cumulative and not in the alternative.
3. Confidentiality.
3.1 WPI and CLIENT each agree to keep confidential and provide
reasonable security measures to keep confidential information
where release may be detrimental to their respective business
interests. WPI and CLIENT shall each require their employees,
agents, affiliates, other licensees, and others who will have
access to the information through WPI and CLIENT respectively, to
first enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
3.2 WPI will not, either during its engagement by the CLIENT
pursuant to this Agreement or at any time thereafter, disclose,
use or make known for its or another's benefit any confidential
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information, knowledge, or data of the CLIENT or any of
its affiliates in any way acquired or used by WPI during
its engagement by the CLIENT. Confidential information,
knowledge or data of the CLIENT and its affiliates shall
not include any information that is, or becomes generally
available to the public other than as a result of a
disclosure by WPI or its representatives.
4. Miscellaneous Provisions.
4.1 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of WPI and
CLIENT.
4.2 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. The
obligations of either party hereunder cannot be assigned without
the express written consent of the other party.
4.3 Governing Law; Venue. This Agreement and the legal
relations among the parties hereto shall be governed by and
construed in accordance with the laws of the State of California,
without regard to its conflict of law doctrine. CLIENT and WPI
agree that if any action is instituted to enforce or interpret
any provision of this Agreement, the jurisdiction and venue shall
be Orange County, California.
4.4 Attorneys' Fees and Costs. If any action is necessary to
enforce and collect upon the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees
and costs, in addition to any other relief to which that party
may be entitled. This provision shall be construed as applicable
to the entire Agreement.
4.5 Survivability. If any part of this Agreement is found, or
deemed by a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder of
the Agreement.
5. Arbitration. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES
BETWEEN CLIENT, WPI OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL
REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR
ANY CUSTOMER OR OTHER PERSON OR ENTITY, ARISING OUT OF, IN
CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT, SHALL BE
RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH LITIGATION.
WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED
HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND
DIFFERENT FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO
SEEK MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY
LIMITED;
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E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO
INCLUDE ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY
ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO THE AMERICAN ARBITRATION ASSOCIATION, IN ORANGE
COUNTY, CALIFORNIA WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN
REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION
ON REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED
SHALL TAKE PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN
EFFORT TO RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING
ARBITRATION OR SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF
ANY ARBITRATION FORUM LOCATED IN ORANGE COUNTY, CALIFORNIA, OVER
ANY MATTER WHICH IS THE SUBJECT OF THIS AGREEMENT, THE PREVAILING
PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ITS
LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION
WITH THE DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO
ENFORCE ITS RIGHTS TO ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING
FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR
JUDGMENT AND EXECUTION FOR COLLECTION.
6. Term/Termination. This Agreement is an agreement for the
term of approximately thirteen (13) months ending June 30, 2002.
Client and WPI further agree that prior to the expiration of the
term of the Agreement they shall negotiate in good faith and
attempt to arrive at mutually satisfactory terms and conditions
to extend the Agreement to December 31, 2002.
7. Registration Of Shares. WPI shall have standard piggyback
registration rights (as described in Section 3.2 herein) of all
shares issued in accordance with this Agreement, which are not
subject to registration per Section 3.0 et seq. herein.
8. Non Circumvention. In and for valuable consideration,
CLIENT hereby agrees that WPI may introduce (whether by written,
oral, data, or other form of communication) CLIENT to one or more
opportunities, including, without limitation, natural persons,
corporations, limited liability companies, partnerships,
unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or ""Opportunities"").
CLIENT further acknowledges and agrees that the identity of the
subject Opportunities, and all other information concerning an
Opportunity (including without limitation, all mailing
information, phone and fax numbers, email addresses
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and other contact information) introduced hereunder are the
property of WPI, and shall be treated as confidential and
proprietary information by CLIENT, it affiliates, officers,
directors, shareholders, employees, agents, representatives,
successors and assigns. CLIENT shall not use such
information, except in the context of any arrangement with
WPI in which WPI is directly and actively involved, and
never without WPI's prior written approval. CLIENT further
agrees that neither it nor its employees, affiliates or
assigns, shall enter into, or otherwise arrange (either for
it/him/herself, or any other person or entity) any business
relationship, contact any person regarding such Opportunity,
either directly or indirectly, or any of its affiliates, or
accept any compensation or advantage in relation to such
Opportunity except as directly though WPI, without the prior
written approval of WPI. WPI is relying on CLIENT's assent
to these terms and their intent to be bound by the terms by
evidence of their signature. Without CLIENT's signed assent
to these terms, WPI would not introduce any Opportunity or
disclose any confidential information to CLIENT as herein
described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, all as of the day and year first above
written.
LIBERTY MINT, LTD. (LBMT)
Print Name: Xxxxxx X. Xxxxxxxxx
Sign Name: /s/ Xxxxxx X. Xxxxxxxxx
Title: President
Date: 12 June 2001
Address: 000 X. 0000 X.
Xxxx, XX 00000
WINDSOR PARTNERS, INC. (WPI)
Print Name: Xxxxxxx X. Xxxxxx
Sign Name: /s/ Xxxxxxx X. Xxxxxx
Title: Managing Partner
Date: 6/12/01
Address: 00000 Xxxxx Xxxx Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
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