Exhibit 4.04
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), dated as of July 28, 2003
(the "Effective Date"), by and between U.S. Telesis Holdings, Inc., a Delaware
corporation ("Company") having its principal place of business at X.X. Xxx 000
Xxxxxx, XX 00000 (the "Company") and Xxxxxx X. Xxxx, an individual with a
principal place of business located at 0000 Xx Xxxxx Xxxx, Xxx Xxx, XX 00000
(the "Consultant").
WITNESSETH:
WHEREAS, the Company is in the process of developing a business plan;
and
WHEREAS, the Company desires to identify qualified management and
directors to pursue its business plans; and
WHEREAS, the Company wishes to engage the services of the Consultant to
advise and consult with the Company on recruitment of qualified management and
directors; and
WHEREAS, the Consultant is willing to accept such engagement, on the
terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Consultant hereby agree as follows:
1. Engagement.
1.1 The Company hereby engages the services of the Consultant, as an
independent contractor beginning on the Effective Date and ending September 15,
2003 (the "Term"), and the Consultant hereby accepts such engagement, for the
scope of services set forth in section 1.2.
1.2 The scope of the services to be rendered by the Consultant to the
Company include and are limited to the following:
(a) The Consultant will work with Company's management to
devise a plan tailored to identify and recruit qualified management and
directors;
(b) The Consultant will work to identify and recruit qualified
management and directors.
(c) The Consultant shall advise and consult with the Company's
board of directors and management regarding the Company's management
team and composition of its Board of Directors
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(d) Expenses arising from any additional related functions
including but not limited to: printing, advertising, and the
contracting of external advisors/consultants, shall be borne by the
Company when prior written consent of the Company has been obtained by
the Consultant.
(e) The Consultant shall devote such time to this engagement
as is reasonably necessary, but the Consultant need not devote full
time or attention to the engagement.
1.3 Notwithstanding any of the services to be performed above, the
Consultant is prohibited from rendering, and hereby acknowledges that none of
the foregoing consulting services permit or require him to render, services in
any way connected to capital raising or stock promotion, making a market or
conditioning the market with respect to the Company's capital stock or any other
services or activities that would cause any shares of common stock issuable by
the Company as payment of all or part of the Consulting Fee to be ineligible for
registration for resale on Form S-8 under the Securities Act of 1933.
2. Consulting Fees. In consideration of the services to be performed hereunder,
the Company shall issue Consultant 1,000,000 shares of the Company's common
stock (the "Consulting Fee") to be delivered according to the terms contained in
this Section. Consultant shall receive the stock in certificated form on or
before September 15, 2003, and the stock shall be "free trading" upon issuance
and not subject to restrictions as to transfer under Rule 144 as promulgated
under the Securities Act of 1933. The Company represents and warrants that it
will have at least 1,000,000 shares of its Common Stock registered on a valid
Form S-8 prior to issuance of the shares and it will hold such shares to be
issued to Consultant hereunder.
3. Expenses. Consultant agrees to pay for all of his expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company) approved by the Company in writing prior to him
incurring an obligation for reimbursement. The Company agrees and understands
that Consultant will not be responsible for preparing or mailing due diligence
and/or investor packages on the Company, and that the Company will have some
means to prepare and mail out investor packages at the Company's expense.
4. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant or the
public by the Company with respect to financial affairs, operations,
profitability and strategic planning of the Company are accurate in all material
respects and Consultant may rely upon the accuracy thereof without independent
investigation. The Company will protect, indemnify and hold harmless Consultant
against any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting from
Consultant's communication or dissemination of any said information, documents
or materials excluding any such claims or litigation resulting from Consultant's
communication or dissemination of information not provided or authorized by the
Company.
5. Representations. Consultant represents that he is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of his knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory
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agency having jurisdiction over Consultant. Consultant further acknowledges that
he is not a securities Broker Dealer or a registered investment advisor. Company
acknowledges that, to the best of its knowledge, that it has not violated any
rule or provision of any regulatory agency having jurisdiction over the Company.
6. Legal Representation. Each of Company and Consultant represents that they
have consulted with independent legal counsel and/or tax, financial and business
advisors, to the extent that they deemed necessary.
7. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant further
acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company nor the Consultant possesses the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
8. Attorney's Fee. If any legal action or any arbitration or other proceeding is
brought for the enforcement or interpretation of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with or
related to this Agreement, the successful or prevailing party shall be entitled
to recover reasonable attorneys' fees and other costs in connection with that
action or proceeding, in addition to any other relief to which it or they may be
entitled.
9. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
10. Notices. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company:
---------------
U.S. Telesis Holdings, Inc.
Xxxxxxxx Xxxxxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
(000) 000-0000
xxxxxxxx.xxxxxxxxx@xxxxxxx.xxx
To the Consultant:
------------------
Xxxxxx X. Xxxx
0000 Xx Xxxxx Xxxx
Xxx Xxx, XX 00000
Mobile - (000) 000-0000
xxxxxxxx@xxxxx.xxx
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It is understood that either party may change the address to which notices for
it shall be addressed by providing notice of such change to the other party in
the manner set forth in this paragraph.
11. Choice of Law. This Agreement shall be governed by, construed and enforced
in accordance with the laws of the State of California.
12. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding arbitration in
San Diego, CA, in accordance with the applicable rules of the American
Arbitration Association, Commercial Dispute Resolution Procedures, and judgment
on the award rendered by the arbitrator(s) shall be binding on the parties and
may be entered in any court having jurisdiction.
13. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE CONSULTANT: THE COMPANY:
XXXXXX XXXX U.S. TELESIS HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxxxxx Xxxxxxxxx
----------------------------- ----------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxxx Xxxxxxxxx
Title: CEO
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