EXHIBIT 4.1
BUSINESS ADVISORY & FINANCIAL CONSULTING SERVICES AGREEMENT
This Business Advisory and Financial Consulting Services Agreement (the
"Agreement"), entered into and effective as of the 21st day of April, 2003 by
and between Xxxxxx Xxxxx, 000 Xxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxx X0X 0X0
(hereinafter referred to as, "Consultant"), and Doblique, Inc., a Nevada
corporation (hereinafter referred to as, "Client") (collectively referred to
herein as the "Parties").
Preliminary Statement: The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate long
range strategic planning, and to advise the Client in business and/or financial
and merger/acquisition matters and is therefore willing to engage Consultant
upon the terms and conditions set forth herein. Consultant desires to be
assured, and Client desires to assure Consultant, that, if Consultant associates
with Client and allocates its resources necessary to provide Client with its
business advisory and consulting services, Consultant will be paid the
consideration described herein and said consideration will be nonrefundable,
regardless of the circumstances.
Consultant agrees to be engaged and retained by Client upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive basis,
and Consultant hereby accepts the engagement to become a business and
financial Consultant to Client and to render such advice, consultation,
information, and services to the Directors and/or Officers of Client
regarding general financial and business matters including, but not
limited to the following:
1.1 Advice and Counsel. Consultant will provide advice and counsel
regarding Client's strategic business plans, strategy and negotiations
with potential business strategic partnering, corporate planning and or
other general business consulting needs as expressed by Client.
Consultant will review and assess various financing strategies and
solutions with Client. Consultant will help Client determine desirable
financing amounts, terms, and structure. Consultant will assist Client
in determining Client's proper capital structure. The services which
are contemplated under this Agreement shall not relate in any way to
the offer or sale of securities in any capital-raising transaction and
shall not directly or indirectly promote or maintain a market for the
Client's securities. None of the services contemplated under this
Agreement shall relate in any way to the raising of capital, promotion
of the Client's securities or investor relations.
Consultant will provide general advice and counsel to Client regarding
mergers and acquisitions. At Client's request, Consultant is available
to be materially involved in negotiating acquisition terms and
structure, and assisting with due diligence and documentation.
Consultant will assist Client in the development and/or refinement of
the strategic growth plan for the next 24 months and related
communications materials.
Consultant will assist Client with corporate governance structure
involving Client's Board of Directors and committees. Consultant will
also assist with the development and implementation of management and
director compensation programs.
1.2 Client and/or Client's Affiliate Transaction Due Diligence. Consultant
will participate and assist Client in the due diligence process, where
possible, on all proposed financial transactions affecting Client of
which Consultant 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).
1.3 Mergers and Acquisitions. Consultant will provide assistance to Client,
as mutually agreed, in introducing and/or assisting Client in
identifying, acquiring, merging, and/or divesting on a non-exclusive
basis, from time to time, as Consultant deems appropriate in its sole
discretion, assisting in due-diligence, recommending transaction terms
and providing advice and assistance during negotiations, as needed. It
is expressly understood that Consultant shall have no power to bind
Client to any contract or transaction obligation.
Consultant will introduce and/or assist the Client with one or more
parties who might be interested in (whether by way of merger,
consolidation, asset purchase, technology license, or substantially
similar transaction) either, (a) acquiring some or all of Client's
assets or, (b) selling some or all of their own assets to Client
and/or, (c) entering into some form of strategic alliance with Client.
Specifically, Consultant is available to assist Client with the review
of target company financials and due diligence, and with the proposed
valuation and structure of acquisitions. At Client's request,
Consultant will act as Client's agent and sponsor in negotiations with
acquisition targets, demonstrating to target companies that Client has
the support of Consultant as Client pursues growth and development
plans and strategies. Consultant is also available to assist Client
with the documentation of transactions, including letters of intent,
definitive agreements, and other closing documents.
1.4 Additional Duties. Client and Consultant shall mutually agree, in
writing, for any additional duties that Consultant 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. Compensation to Consultant.
2.1 Engagement Fee. As express consideration for Consultant entering into
this Agreement, Client shall issue an aggregate of 1,500,000 shares of
its common stock, par value $.001 per share (the "Engagement Fee").
When issued, said shares shall be restricted shares, although at the
earliest availability, Client shall register such shares with the U.S.
Securities and Exchange Commission (the "SEC") on a Form S-8 or a
similar registration statement. Such shares shall be issued and
delivered to Consultant within ten days of the effective date of this
Agreement.
2.2 Expenses. Client shall reimburse Consultant 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 for any expenses over $500, Consultant must receive prior written
approval from Client. Such reimbursement shall be payable within seven
days of Consultant's invoice.
2.3 Additional Fees. Client and Consultant shall mutually agree upon any
additional fees that Client may pay in the future for services rendered
by Consultant 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.
3. Indemnification. The Client agrees to indemnify and hold harmless
Consultant 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.
4. Confidentiality.
4.1 Consultant 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.
Consultant and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to the
information through Consultant and Client respectively, to first enter
appropriate non-disclosure Agreements requiring the confidentiality
contemplated by this Agreement in perpetuity.
4.2 Consultant 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 information,
knowledge, or data of the Client or any of its affiliates in any way
acquired or used by Consultant 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 Consultant or its representatives. In addition,
Consultant shall not perform similar services provided for herein to
any person identified by Client as a competitor of the Client.
5. Miscellaneous Provisions.
5.1 Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Consultant and Client.
5.2 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.
5.3 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 Florida, without regard to its conflict of law
doctrine. Client and Consultant agree that if any action is instituted
to enforce or interpret any provision of this Agreement, the
jurisdiction and venue shall be the City of Miami, Dade County,
Florida.
5.4 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.
5.5 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.
5.6 Facsimile Signatures. The Parties hereto agree that this Agreement may
be executed by facsimile signatures and such signature shall be deemed
originals. The Parties further agree that within ten (10) days
following the execution of this Agreement, they shall exchange original
signature pages.
6. Arbitration. All disputes, controversies, or differences between
client, consultant, 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 waive 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;
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 Dade County,
Florida 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 initialed shall
take place in the City of Miami, Dade County, Florida;
I. If either party shall institute a 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 the City of Miami, Dade
County, Florida, 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.
7. Term/Termination. This Agreement is an agreement for the term of twenty
four (24) months ending April 30, 2005 and is effective as of the date
first written above. Client may terminate this Agreement at any time
resulting in a full cancellation of this Agreement and any future
obligation of payment by Client or performance by Consultant.
Notwithstanding the foregoing, it is expressly agreed by Client that
any compensation or shares previously tendered to the Affiliates or
Consultant shall not be refundable.
8. Representations, Warrants and Covenants. The Client represents,
warrants and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal capacity to
enter into this Agreement and to consummate the transactions which are
provided for herein. The execution of this Agreement by the Client and
its delivery to the Consultant, and the consummation by it of the
transactions which are contemplated herein have been duly approved and
authorized by all necessary action by the Client's Board of Directors
and no further authorization shall be necessary on the part of the
Client for the performance and consummation by the Client of the
transactions which are contemplated by this Agreement.
The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable
laws, rules and regulations of all authorities which affect the Client
or its properties, assets, businesses or prospects. The performance of
this Agreement shall not result in any breach of, or constitute a
default under, or result in the imposition of any lien or encumbrance
upon any property of the Client or cause acceleration under any
arrangement, agreement or other instrument to which the Client is a
party or by which any of its assets are bound. The Client has performed
in all respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the terms of
any such agreement, contract or commitment.
9. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CLIENT: CONSULTANT:
Doblique, Inc.
/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxxx
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Xxxx Xxxxxxx, Chairman Xxxxxx Xxxxx
