Exhibit 4.1 (a)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 1, 2001, by and between S. Xxxxxxx Xxxxxxx, 0000 Xxxxxx Xxx. #000,
Xxxxxxxxxx, XX 00000, ("Consultant") and Intraco Systems, Inc. with offices at
0000 Xxx Xxxx., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on December 31, 2001, unless earlier terminated
in accordance with paragraph 7 herein or extended as agreed to between the
parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
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and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term
strategic planning to fully develop and enhance the
Company's assets, resources, products and services;
(b) The implementation of an international marketing
program to enable the Company to broaden the markets
for its services and promote the image of the Company
and its products and services;
(c) Advise the Company relative to the recruitment and
employment of key executives consistent with the
expansion of operations of the Company;
(d) The identification, evaluation, structuring,
negotiating and closing of international joint
ventures, strategic alliances, business acquisitions
and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation
thereof; and
(e) Advice and recommendations regarding corporate
financing including the structure, terms and content
of bank loans, institutional loans, private debt
funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private
or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services. The above will be done upon request of the consultant.
5. COMPENSATION.
The Company will immediately grant Consultant the option to purchase
2,600,000 shares of the Company's Common Stock with an exercise price at $.10
per share, which option shall expire on December 31, 2001 at 5:00 P.M. P.S.T.
Consultant in providing the foregoing services shall be reimbursed for any
pre-approved out-of-pocket costs, including, without limitation, travel,
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lodging, telephone, postage and Federal Express charges. These options do not
have a cashless provision.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
TERMINATION: This Agreement may be terminated, with cause, by either
Party upon written notice to the other Party. Termination shall be effective
five (5) business days from the date of such notice.
As used in this Agreement, the term with cause shall mean, the
conviction of any crime involving dishonesty or resulting in imprisonment
without the option of a fine, or the material non-observance, or the material
breach by Consultant of any of the material provisions of this Agreement, or the
neglect, failure or refusal of consultant to carry out the duties contracted by
him after due notice to the consultant of such neglect, failure or refusal.
MODIFICATION: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
NOTICES: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number, as the Party shall have furnished
in writing to the other Party.
WAIVER: Any waiver by either Party of a breach of any provision of
this Consulting Agreement shall not operate as or be construed to be a waiver of
any other breach of that provision or of any breach of any other provision of
this Consulting Agreement. The failure of a Party to insist upon strict
adherence to any term of this Consulting Agreement on one or more occasions will
not be considered a waiver or deprive that Party of the right thereafter to
insist upon adherence to that term of any other term of this Consulting
Agreement.
ASSIGNMENT: The Options under this Agreement are non-assignable.
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SEVERABILITY: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
DISAGREEMENTS: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in San Mateo County. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
INTRACO SYSTEMS, INC. CONSULTANT
/s/ XXXX XXXXXXXX. /s/ S. XXXXXXX XXXXXXX
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Xxxx Xxxxxxxx S. Xxxxxxx Xxxxxxx
Chief Executive Officer
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