EXHIBIT 4
CONSULTING AGREEMENT
This Consulting Agreement is bring entered into as of January 29, 2003, by and
between Xxxxxxx X. Xxxxx (hereinafter "Consultant") and Modern Manufacturing
Services, Inc. (hereinafter "the Company"), whereby the Company has agreed to
retain the services of the Consultant under the terms and conditions as set
forth within the Consulting Agreement.
It is hereby acknowledged that the Company is desirous of retaining the services
of the Consultant for assistance in various matters pertaining to corporate
growth, strategic planning, and the expansion of the existing shareholder and
equity base of the Company, and that the Consultant has agreed to provide such
services to the Company in exchange for the due consideration as outlined within
the subsequent portions of this Agreement.
Section 1 Description of Consulting Services
Under the terms and conditions of this Agreement the Consultant has agreed to
act in an advisory capacity to the Company and to provide such services in
exchange for the due consideration as set forth within this Agreement. The scope
of such services shall be described as providing general assistance and guidance
to the company in the areas of strategic planning, corporate financing
strategies, strategic alliances, mergers, acquisitions and various other matters
as pertaining to growth and the enhancement of shareholder value.
Whereas the Consultant has agreed to act in an advisory capacity to the Company,
the company understands and hereby acknowledges the fact that this is a
non-exclusive arrangement, and that the Consultant is free to enter into any
other such consulting and/or business agreement as he may deem necessary and
desirable at any time. Such agreements may include additional consulting
agreements, outside business ventures and/or investments as well as any other
type of business and/or personal activity as the Consultant may desire. The
Consultant shall maintain the right to enter into any such outside agreements
and ventures, at his sole discretion.
As a further provision of this Agreement both the Consultant and the Company
acknowledge and agree that there will not be any specific time requirement for
utilization by either party, and that the consideration that is due the
Consultant under the terms of this Agreement is unrelated to the amount of time
that is spent providing such consulting services, and is considered as a fixed
cost of this Agreement.
Section 2. Disclaimers
In recognition and mutual acknowledgement of the fact that the Company is a
company in its development stage and is further engaged in a business of a
highly speculative nature with little or no current revenues, income or liquid
market for its stock at this time the Consultant makes no representations,
warranties or other affirmations as to the efficacy, viability and/or success of
any efforts that may be undertaken on the Company's behalf, and the Company
hereby acknowledges, accepts and understands such disclaimers as made by the
Consultant.
Section 3. Due Consideration
As due consideration for the consulting services to be provided by the
Consultant to the Company under the terms and conditions as set forth within
this Agreement, the Company hereby agrees to the timely payment of the following
to the Consultant;
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1. In consideration for all services provided hereunder that are not related
to capital-raising transactions or the direct or indirect maintenance or
promotion of a market for the Company's securities a retainer in the amount
of 800,000 free-trading shares of unrestricted common stock in MMFS and any
of its successor entities, shall be issued upon the execution of this
Agreement.
2. A fee that is equivalent to five percent 5% of the value of any economic
transaction that is consummated as a result of the Consultant's contacts and/or
efforts on the Company's behalf. An economic transaction shall be considered as
any of the following, but is not necessarily limited to: mergers, acquisitions,
sales, strategic alliances, customers and/or suppliers, or any other type of
transaction that is considered as having any economic effect on the Company.
As a condition of this Agreement, subheadings 1-2 as listed above in the Due
Consideration portion of this Agreement shall be considered as having survived
the term of this Agreement, and shall remain in full force and effect until
either of the following has occurred:
a. The contingent provisions have been fulfilled or.
b. Two years have passed subsequent to the termination date of this
Agreement
Section 4. Timely Payment
As a condition of this Agreement it is hereby understood that all obligations as
incurred by the Company shall be paid to the Consultant in a timely manner. It
is acknowledged that all such obligations shall become due and payable within
the following timeframes:
a. The signing retainer shall become due and payable upon the execution
of this Agreement
b. The contingent payment(s) as outlined in subheading 2 above shall
become due and payable upon the closing of any of the aforementioned
transactions. The Company hereby agrees to execute any and all
appropriate documents so as to make the requisite payments a part of
any closing, with the proceeds being paid directly to the Consultant
at the time of closing.
c. Any other expenses and distributions shall be considered as becoming
due and payable upon notification to the Company by the Consultant
Section 5. Conditions of Default
In the event that the Company fails to meet the Timely Payment and/or Due
Consideration sections of this Agreement it shall be considered to be in default
of its payment obligations to the Consultant. In the event of a default the
Consultant shall have the obligation to inform the Company of such a default in
writing, and shall grant the Company a period not to exceed ten (10) business
days within which it may move to cure such a condition through the payment of
any and all outstanding obligations to the Consultant.
In the event that the Company fails to cure such a default the Company shall be
considered to be in breach of its contractual obligations to the Consultant,
resulting in the following penalties:
a. The Consultant shall have no further obligation to the Company as a
result of this Agreement and shall be released from any and all
obligations to the Company immediately upon the notification to the
Company of its default and the Company's subsequent failure to cure
said default within the agreed upon timeframe.
b. Upon default by the Company to the Consultant under any of the terms
and conditions as outlined within this Agreement all such monies,
retainers, expenses, distributions and/or earnouts as have been earned
or as may have been earned as a result of the successful completion of
this Agreement as well as any extensions thereof, shall become due and
payable upon an accelerated basis immediately upon notification to the
Company by the Consultant of any such default, and its subsequent lack
of cure. In the event of a default and/or breach of this Agreement by
the Company any and all monies that may have been earned by the
Consultant hereunder shall become immediately due and payable.
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Section 6. Term of the Agreement
The term of this Consulting Agreement shall run for a period of six (6) months
from the date of its execution by all parties, with additional options for
extension thereafter by mutual and written consent. Throughout the initial term
of this Agreement either party shall maintain the right to terminate the
Agreement through the forwarding of a written notification to the other party
with a thirty (30) day notice period.
In the event that the Consultant elects to terminate the Agreement without cause
prior to its expiration he shall be entitled to any and all payments and/or
distributions as earned up to and including the termination date, but shall not
be entitled to receive any unearned portions of the fees. It is acknowledged and
agreed upon however that in the event that the Company concludes any
transactions with any of the people, entities and/or companies that have been
introduced to it by the Consultant or with whom the Consultant has initiated
conversations on the Company's behalf, the Company shall be obligated for
payment to the Consultant under the terms and conditions of this Agreement, for
a period of two years subsequent to the termination.
In the event that the Company elects to terminate the Agreement for any reason
whatsoever its obligations to the Consultant as set forth within the "Due
Consideration" section of this Agreement shall be deemed to have survived such a
termination and shall remain due and payable as if the Agreement were still in
full force and effect.
The Company may not nullify and/or release itself from any of the payments
and/or obligations to the Consultant throughout the initial term of this
Agreement (and any extensions thereof) under any circumstances whatsoever.
Section 7. Transfer of Assets, Merger
Notwithstanding anything to the contrary herein, if (a) all or substantially all
of the assets of the Company should be transferred (either by sale, exchange,
foreclosure, liquidation, dissolution, repurchase or other disposition) to a
corporation or other entity without the prior consent of the Consultant, this
Agreement shall also continue to be binding upon both the Consultant as well as
the transferee corporation and/or entity, and the Company shall make adequate
provisions within such transactional documentation for the assignment and
assumption of this Agreement, with the Company remaining jointly and severally
liable hereunder.
Section 8. Liability and Indemnification
Because the duties and services of the Consultant may require and/or be
uncontrollably influenced by the decisions of third parties, no statement,
representation or warranty can be or is made by the Consultant as to the result
of his services. In no event shall the Consultant be held liable, whether in
contract, tort, negligence or otherwise for any special, indirect, economic or
consequential damages or for any damages arising from or attributable to the
failure to realize the goals of the Company and/or its affiliates profits, cash
flows, savings, loss of data, capital downtime, loss of use, loss of goodwill,
loss of anticipated or actual revenue or profit, or any other economic
dislocation whatsoever. The Consultant shall not, under any circumstance
whatsoever, be held liable to the Company or any person or entity for any
mistakes, errors in judgment or for any act or omission believed by him in good
faith to be within the scope of his authority hereunder, regardless of whether
such act or omission in ineffective or in any way fails to achieve the purposes
of this Agreement, or for any other claim or theory advanced by any such person
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or entity. The Consultant shall be indemnified and held harmless by the Company
and any of its affiliates from all loss, cost or expense in respect to any and
all such claims, such parties advancing or paying as incurred all such loss,
cost or expense of the Consultant. The Consultant shall not be held to have
incurred any liability to the Company or any person or entity by virtue of any
action taken by him or allegedly failed to be taken by him in the good faith
attempt to discharge his duties and services. In no event shall any liability of
the Consultant exceed the value of the total compensation and consideration
(excluding any reimbursement for expenses) as set forth under the terms and
conditions of this Agreement and as already paid to the Consultant thereunder.
Section 9. Authority
The Company and any affiliates hereby warrant and represent that they have the
full power and authority to execute and deliver this Agreement to the Consultant
and to perform the obligations as contained herein, and that this Agreement has
been duly authorized, executed and delivered by the Company and any affiliates
and further constitutes and valid, binding and legally enforceable obligation of
the Company and any affiliates. Each party has read and understood this
Agreement.
Section 10. Notices, etc.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been given either; when hand delivered to the addressee's office,
or three (3) days after being mailed by first class, registered or certified
mail, postage prepaid, addressed as follows:
a. If to the Consultant to: Xxxxxxx X. Xxxxx, 000 Xxxxx Xxx, Xxxxxx, Xxxx
00000, or to any other such person(s) and/or addresses as may be
furnished, in writing, to the Company by the Consultant
b. If to the Company to: Xxxxx Xxxxxxx, c/o Modern Manufacturing
Services, Inc., 0000 000xx Xxxxxx, X.X., Xxxxxxxx, Xxxxxxxxxx 00000,
or to any other such person(s) and/or addresses as may be furnished,
in writing to the Consultant by the Company
Section 11. Entire Agreement
The parties hereto agree that this Agreement constitutes the entire agreement
between the parties with respect to the subject mater hereof, that that this
Agreement supersedes any and all prior agreements and understandings between the
parties with regard to such subject matter, and that there are no restrictions,
agreements, arrangements, either oral or written, between the parties relating
to the subject matter hereof which are not fully and accurately expressed or
referred to herein.
Section 12. Waivers
Any waiver of the terms and/or conditions as set forth within this Agreement
shall not operate as a waiver of any other breach or claim of such terms or
conditions or any other term or condition, nor shall any failure to enforce any
provisions hereof operate as a waiver of such provision or of any other
provision hereof. No waiver, unless it by its own terms explicitly so provides,
shall be construed to effect a continuing waiver in any other instance or for
any other purpose, or impair the right of the party against whom such waiver is
claimed, in all other instances or for all other purposes, to require full
compliance with such provision.
Section 13. Further Amendments
Each of the parties hereto agrees to execute all such further instruments and
documents and to take all such further action as the other party may reasonably
require in order to effectuate the terms, conditions and purposes of this
Agreement.
Section 14. Amendments
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This Agreement may not be amended, nor shall any waiver, change, modification,
consent or discharge be effected, except by an instrument in writing fully
executed by the party against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
Section 15. Assignment; Successors and Assigns
This Agreement shall, except as hereinafter or as in Section 7 provided, not be
assignable by either party without the receipt of the prior written consent of
the other; provided however that this Agreement may be assigned by the
Consultant to any subsidiary and/or affiliated company of the Consultant, with
such assignment releasing the assignor. This Agreement may also be assigned
pursuant to a sale of substantially all of the assets of the Consultant's
practice with or to a party acceptable to the Company, which party shall have
assumed the Consultant's obligations hereunder pursuant to an agreement in form
and substance reasonably satisfactory to the Company. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
successors in interest (whether by merger, consolidation or similar
transaction), and permitted assigns.
Section 16. No Partnership Authority
Nothing as contained within this Agreement is intended to create, nor shall any
provision hereof be construed so as to create, a partnership, joint venture,
coadventure or joint undertaking by and among the Consultant and the Company, or
to further constitute the Consultant as an agent or employee of the Company, it
being the express intention of the parties hereto that the relationship created
hereby shall be that of separate and independent contractors acting at all times
in their sole and individual capacities. The Consultant shall have no authority
to act on behalf of the Company in any matter except as expressly outlined
within this Agreement, or as may be agreed upon otherwise, in writing.
Section 17. Access; Assistance; Information: Compliance with Law
a. In connection with the Consultant's engagement as contemplated by and
through this Agreement the Company and any affiliates hereby agree to
furnish the Consultant and any of his designates with all information
concerning the Company and any affiliates which the Consultant
reasonably deems as being appropriate, and will provide the Consultant
with access to, assistance from, availability for communications and
meetings with, the Company's and any affiliates files, officers,
directors, accountants, counsel, investment bankers, broker-dealers,
marketmakers and other outside advisors. The Company represents and
warrants to the Consultant that all such information is and will be
truthful and accurate in all material respects and that it does not
nor will not contain any untrue statement of a material fact, or omit
to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances under which such
statements are made. The Company acknowledges that the consultant will
be utilizing and relying upon the accuracy and completeness of the
information supplied by or on behalf of the Company and its officers
in connection with its engagement without independent verification,
and that the Consultant does not assume responsibility for the
accuracy and completeness of any such information. The Company will
promptly notify the Consultant in writing in the event that it learns
of any material inaccuracy in or material omissions from, any
information as previously delivered to the Consultant, including,
particularly, the financial projections of the Company and any
affiliates.
b. The burden of compliance with law for all matters concerning the
Company and any affiliates and/or entities which either have or may be
contemplating the issuance of Securities, rests with the Company and
any such affiliate or entity. Although the Consultant may offer its
practical advice or offer comments or observations regarding such
matters, he shall not be deemed to provide legal or accounting advice
or services, nor to be the maker, author, publisher or be responsible
for any statement, representation or misstatement, misrepresentation,
omission or alleged misstatement, alleged misrepresentation or alleged
omission.
Section 18. Severability
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In the event that any provision of this Agreement shall be held or deemed to be,
or shall in fact be invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or
cease, because of conflict of any provision with any constitution or statute or
rule of public policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions herein contained invalid,
inoperative or unenforceable, to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute or rule of
public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable provision
had never been contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted in such
jurisdiction or in such case, except when such construction could operate as an
undue hardship on either party, or constitute a substantial deviation from the
general intent and purpose of such party is reflected within this Agreement. For
purposes of interpretation, no party shall be deemed the drafter of this
Agreement.
Section 19. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument, and in pleading or proving any provision of this Agreement, it shall
not be necessary to produce more than one of such counterparts signed by the
party against whom enforcement is sought. Fax signatures shall be valid as
originals or copies.
Section 20. Section Headings
The headings as utilized throughout this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement
Section 21. Gender
Whenever used herein the singular noun shall include the plural, the plural
shall include the singular, and the use of any gender shall include all genders.
Section 22. Governing Law
This Agreement shall be governed by and construed and enforced in accordance
with the internal law of the State of Ohio, without regard to the principals of
conflicts of laws. The parties hereto agree that any disputes that may arise
shall be resolved in the appropriate jurisdiction within the State of Ohio.
IN WITNESS WHEREOF, the parties have executed or caused to be executed the
Agreement as of the date first above written.
Modern Manufacturing Services, Inc.
By: ____________________
Title: ___________________
Date: ___________________
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Xxxxxxx X. Xxxxx
By: ____________________
Title: ___________________
Date: ___________________
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