Exhibit 4.14
FIRST AMENDED AND RESTATED
CONSULTING AGREEMENT
THIS FIRST AMENDED AND RESTATED AGREEMENT (this "Amendment"), made this
1st day of June, 1999, by and between XXXXXXXXX VENTURE CAPITAL, L.L.C. ("SVC"),
a Delaware limited liability company, and AFFINITY INTERNATIONAL TRAVEL
SERVICES, INC. ("Affinity" or "the Company"), a Nevada corporation.
WHEREAS, Affinity and SVC have entered into that certain Consulting
Agreement dated April 23, 1999 (the "Agreement");
WHEREAS, Affinity and SVC desire to amend and restate the terms and
conditions of the Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained and the consideration to be paid hereunder, and for other valuable
consideration, the Agreement is hereby amended and restated in its entirety as
follows:
1. Recitals are True. The above recitals are true and correct and
incorporated herein.
2. Consulting Services. Affinity agrees to retain SVC and SVC agrees to be
retained by Affinity on an as-needed basis from and after the date hereof until
terminated in accordance with the provisions of Section 7 hereinbelow as a
consultant and advisor to Affinity in connection with certain investment and
business matters of Affinity.
3. Devotion of Time to Consulting Services. SVC shall devote such time to
rendering consulting and advising services as is reasonably requested from
time-to-time by Affinity. The services to be rendered by SVC to Affinity
hereunder may be rendered in person or by letter, telephone or other means of
communication as shall be appropriate under the circumstances. SVC shall not be
required to observe any fixed schedule of attendance at the principal place of
business of Affinity or any other person or entity for the rendition of such
services.
4. Consideration for Consulting Services. As consideration for SVC's
services hereunder during the term of this Agreement, Affinity shall pay SVC and
SVC shall accept from Affinity the following:
(a) on the first (1st) day of each month from and after the date
hereof until terminated pursuant to Section 7 hereof, the sum of
$13,333.32 per month, pro rated for any partial month, until all shares of
common stock owned by SVC are registered for sale under the Securities Act
of 1933, as amended, or freely tradable on the public securities markets,
pursuant to Rule 144 promulgated under the Securities Act of 1933, as
amended;
(b) a sum equal to five percent (5%) of the gross investment
proceeds received by Affinity (1) from investor(s) introduced to Affinity
by SVC (and with whom Affinity has
no prior relationship) or (2) in a transaction with respect to which SVC's
efforts were instrumental in negotiating and closing on behalf of the
Company. Such sum shall be due and payable by Affinity upon receipt by
Affinity of the proceeds or consideration from such investment
transaction; and
(c) the grant of warrants to purchase up to 750,000 shares of common
stock of the Company, $0.001 par value per share, at $2.00 per share. The
warrant is exercisable commencing on the date hereof and shall expire on
the date which is five (5) years from the date hereof. Upon exercise of
the warrants, SVC shall make payment in the amount of $2.00 per share for
the common stock underlying the warrants to the Company via certified
check, personal check, or wire transfer to the account designated by the
Company or via cashless exercise pursuant to Section 4(d) hereof.
(d) Cashless Exercise of Warrants. At any time following the date
hereof, the warrant holder, whether SVC or otherwise, in lieu of any cash
payment required hereunder for the warrants, shall have the rights to
exercise the warrants in whole or in part by surrendering the warrants in
exchange for the number of shares of the Company's common stock equal to
(x) the number of shares as to which the warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Market Price
(as defined below) of the common stock less the exercise price of the
warrants being exercised, and the denominator of which is such Market
Price. The term "Market Price" means the average of the closing sale price
per share of the common stock on the principal stock exchange or market on
which the common stock is then quoted or traded on each of the ten (10)
consecutive trading days preceding the date on which written notice of
election to exercise the warrants has been given to the Company (a
"cashless exercise"). If the warrant holder opts for a cashless exercise
of the warrants, no other consideration shall be paid to the Company,
other than surrendering the warrant itself, nor will there be paid any
commission or other remuneration to any other person or entity by the
warrant holder. In the event that the warrant holder is not permitted to
"tack" the holding period of the warrants to the holding period of the
common stock received upon the cashless exercise for purposes of
satisfaction of the holding period requirements of Rules 144(d)(3)(ii) and
144(k) under the Securities Act of 1933, as amended, for whatever reason
and there is no presently filed registration statement effective as to the
shares received or to be received through the cashless exercise of the
warrants granted herein, the Company shall, upon receipt of the written
request of the warrant holder, promptly prepare and file a registration
statement with the U.S. Securities and Exchange Commission with respect to
all of the shares underlying the warrants granted herein; provided,
however, that the provisions of this paragraph relating to a demand for
registration by the warrant holder shall not be effective at any time
prior to December 15, 1999.
In addition, Affinity shall reimburse SVC for all actual expenses incurred
by SVC for services rendered on behalf of Affinity and, at the request of
Affinity, upon submission of appropriate invoices or receipts therefor.
5. Status as Independent Contractor. The parties agree that SVC's
relationship with
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Affinity will be that of independent contractor, and nothing in this Agreement
shall be deemed to create an employer-employee relationship between the parties.
As such, SVC will not be entitled to any compensation other than as agreed upon
herein.
6. Default by Affinity. Affinity hereby acknowledges that late payment by
Affinity of sums due under this Agreement will cause SVC to incur certain costs,
the exact amount of which will be difficult to ascertain. In the event that
Affinity does not pay all sums due to SVC hereunder on the date on which any
such payment is due (the "Payment Date"), Affinity shall pay interest on such
unpaid amount at an annual rate of eighteen percent (18%) which shall accrue
from the Payment Date until the date any such payment is paid in full; provided,
however, that if such interest rate exceeds the rate allowable by law, then the
highest rate allowed by law shall apply. SVC's acceptance of interest hereunder
shall in no event constitute a waiver of Affinity's default with respect to such
overdue amount, nor prevent SVC from exercising any other right or remedy
granted to SVC hereunder or at law or in equity.
7. Term of Agreement. The effective date of this Agreement shall be the
date hereof, and it shall remain effective and continue in force and effect
until terminated in accordance herewith; this Agreement may be terminated by
either party upon ten (10) business days prior written notice to the other
party. Termination of this Agreement pursuant to this Section 7 shall in no way
terminate the obligation of Affinity to pay to SVC any amounts accrued under
Section 4 hereof prior to termination.
8. Severability. The parties hereto intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law. Accordingly,
should a court of competent jurisdiction determine that the scope of any
provision is too broad to be enforced as written, the parties intend that the
court should reform the provision to such narrower scope as it determines to be
enforceable. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance, except to the extent such remaining provisions constitute
obligations of another party to this Agreement corresponding to the
unenforceable provision.
9. Notices. Any and all notices, demands, requests, designations,
consents, offers, acceptances or any other communications that may be or are
required to be given, served or sent by any party to another party pursuant to
this Agreement shall be in writing and shall be mailed by certified mail, return
receipt requested, or by verifiable overnight delivery postage prepaid, or
transmitted by hand delivery (against a signed receipt) or by facsimile with
confirmation of receipt addressed as follows: (a) if to SVC at 0000 Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx, 00000 FAX (000) 000-0000, with a copy to Xxxxxxx X. Xxxxx,
Esq., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 FAX: (000) 000-0000; (b)
if to Affinity at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000X, Xx. Xxxxxxxxxx, Xxxxxxx
00000 FAX: (000) 000-0000 with a copy to Xxxxxx X. Xxxxxx, Esq., Brown, Rudnick,
Freed & Gesmer, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (FAX: (000) 000-0000 or
to such other address which may be designated by either Affinity or SVC.
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10. Modification. No change or modification of this Agreement shall be
valid unless the same be in writing and signed by the parties hereto, other than
modification by a Court of law in accordance with Section 8 hereof.
11. Applicable Law and Binding Effect. This Agreement shall be construed
and regulated under and by the laws of the State of Nevada and shall inure to
the benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to
be executed the day and year first above written.
AFFINITY INTERNATIONAL
TRAVEL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
President
XXXXXXXXX VENTURE CAPITAL, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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XXXXXX X. XXXXXXXXX, XX.
Managing Member
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