EXHIBIT 4.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CONSULTING AGREEMENT
This First Amendment to Amended and restated Consulting
Agreement (this "Amendment") is made and entered into as of the 10th day
of April, 2001, by and between XxxxXX.xxx, Inc. ("Issuer") and Xxxxxx
X. Xxxxxxxxx, Xx., a person of the full age of majority and resident of
the State of Louisiana ("Consultant").
R E C I T A L S
A. WHEREAS, the Issuer is in default of its obligations
under that certain Amended and Restated Consulting Agreement dated
January 1, 2001 by and between Issuer and Consultant (the "Consulting
Agreement");
B. WHEREAS, Consultant has not yet terminated its services under
the Consulting Agreement despite Issuer's uncured default of its obligations
thereunder;
C. WHEREAS, as compensation under the Consulting
Agreement, Issuer was obligated to pay to Consultant the full sum of
$350,000, such sum to be paid to Consultant through the issuance to
Consultant of certain shares of common stock of Issuer registered on
Form S-8 under the Securities Act of 1933, as amended; however, such
compensation was never paid to Consultant, such shares were never
issued to Consultant nor were such shares ever registered on Form S-8;
D. WHEREAS, Issuer and Consultant have agreed to settle
and compromise the obligations of Issuer to Consultant under the
Consulting Agreement such that Issuer will pay to Consultant the full
sum of $175,000 as consideration for Consultant's services and Issuer
and Consultant have agreed to amend the Consulting Agreement under the
terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties agree as follows:
Recitals are True. The above recitals are true and correct and
incorporated herein.
Amendment to Section 2. Section 2 of the Consulting Agreement is
hereby amended and restated in its entirety as follows:
2. Consulting Services and Compensation. On the terms
and subject to the conditions set forth in this agreement,
Issuer and Consultant hereby agree that:
(a) From and after the date hereof, subject to the
Termination provisions of Section 7 hereof, Consultant shall serve as
a consultant to Issuer in connection with (i) the evaluation of
potential business opportunities for Issuer, (ii) the business
operations and management of Issuer, (iii) the development of business
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strategies for Issuer, and (iv) raising public and private capital for
Issuer (the services identified in foregoing clauses (i) through (iv)
are hereinafter collectively referred to as the "Consulting Services")
and;
(b) As compensation for the Consulting Services, Issuer agrees
to pay to Consultant and Consultant agrees to accept from Issuer, the
full sum of One Hundred Seventy Five Thousand and 00/100 ($175,000.00)
Dollars (the "Consulting Fee"). The Consulting Fee shall be payable
in full on the date of execution of this Agreement. The Consulting
Fee shall be payable through the issuance by Issuer of 21,875,000
shares of Common Stock (the "Shares") with a stated fair market value
of $0.008 per share (which price was not arbitrarily determined but
represents the closing bid price of the Company's common stock on
April 10, 2001, the date of the First Amendment to Amended and
Restated Consulting Agreement, as quoted on the OTCBB for the
Company's common stock).
(c) Issuer and Consultant further agree that Issuer will send to
Consultant a letter advising Consultant that the Shares registered on
the Registration Statement (as defined in Section 4 herein below) will
represent ordinary income to Consultant and that Consultant will
accept responsibility for such ordinary income during the tax year in
which this Agreement is executed; provided, that the value of the
Shares set forth on Internal Revenue Service Form 1099 provided to
Consultant by Issuer evidencing such ordinary income shall not exceed
$0.008 per share. It is specifically agreed that Issuer shall
reimburse Consultant for any and all income taxes incurred by
Consultant as a result of this Agreement. Prior to April 15, 2002,
Consultant shall provide written notice to Issuer of the amount of
such income taxes. Within three (3) business days of receipt of such
notice, but in no event Issuer later than April 15, 2002, Issuer shall
pay to Consultant the amount of such income tax liability incurred by
Consultant as a result of this Agreement.
Amendment to Section 4. Section 4 of the Consulting Agreement is hereby
amended and restated in its entirety as follows:
4. Registration, Issuance and Delivery of Shares. Within ten (10)
days following the date hereof, Issuer agrees to register the
issuance of the Shares to Consultant by filing a Form S-8
registration statement (the "Registration Statement") with the
United States Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act").
Promptly after the Registration Statement becomes effective, but
in no event later than three (3) days following the effective
date of the Registration Statement, Issuer shall issue a stock
certificate representing the Shares to Consultant and shall
deliver the stock certificate at the address specified by
Consultant in Section 8 hereof. If the above filing and
issuance does not take place within such thirteen (13) day
period from the date of this agreement, Issuer will issue to
Consultant an additional 2,100,000 shares of Common Stock as
liquidated damages for Issuer's breach of the terms and
conditions hereof."
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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 Amendment 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 Consultant at 0000 Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx, 00000 FAX (000) 000-0000, with a copy to Xxxxxxx
X. Xxxxx, Esq., 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 FAX: (202)
000-0000; (b) if to Issuer at Polo Tower, 0000 X. Xxx Xxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, Attn: Xxxxx X. Xxxxxx, President,
or to such other address which may be designated by either Consultant
of Issuer.
Modification. No change or modification of this Amendment 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 15
hereof.
Entire Agreement; No Third-Party Beneficiaries. This Amendment
(including the exhibits and schedules attached hereto) and such other
documents expressly intended by the terms hereof to be delivered
subsequent to the execution of this Amendment, contains the entire
understanding of the parties in respect of its subject matter and
supersedes all prior agreements and understandings (oral or written)
between or among the parties with respect to such subject matter. The
parties agree that prior drafts of this Amendment shall not be deemed
to provide any evidence as to the meaning of any provision hereof or
the intent of the parties with respect thereto. The exhibits and
schedules constitute a part hereof as though set forth in full above.
This Amendment is not intended to confer upon any person, other than
the parties hereto, any rights or remedies hereunder.
Expenses. Issuer shall pay all fees and expenses incurred by Issuer
and Consultant in connection with the negotiation and preparation of
this Amendment or any transaction contemplated hereby.
Attorneys' Fees. Notwithstanding the foregoing, in the event either
party employs an attorney or brings an action against the other arising
out of the terms of this Amendment, the prevailing party (whether such
prevailing party has been awarded a money judgment or not) shall
receive from the other party (and the other party shall be obligated to
pay) the prevailing party's reasonable legal fees and expenses
(including the fees and expenses of experts and para-professionals),
whether such fees and expenses are incurred before, during or after any
trial, re-trial, re-hearing, mediation or arbitration, administrative
proceedings, appeals or bankruptcy or insolvency proceedings, and
irrespective of whether the prevailing party would have been entitled
to such fees and expenses under applicable law in the absence of this
Section.
Amendment; Waiver. This Amendment may not be modified, amended,
supplemented, canceled or discharged, except by written instrument
executed by all parties. No failure to exercise, and no delay in
exercising, any right, power or privilege under this Amendment shall
operate as a waiver, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude the exercise of any other
right, power or privilege. No waiver of any breach of any provision
shall be deemed to be a waiver of any preceding or succeeding breach of
the same or any other provision, nor shall any waiver be implied from
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any course of dealing between the parties. No extension of time for
performance of any obligations or other acts hereunder or under any
other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts. The rights and
remedies of the parties under this Amendment are in addition to all
other rights and remedies, at law or equity, that they may have against
each other except as may be specifically limited herein.
Binding Effect; Assignment. The rights and obligations of this
Amendment shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein
shall be construed to give any other person any legal or equitable
rights hereunder. The rights and obligations of this Agreement may not
be assigned except by mutual written consent of the parties hereto.
Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. A telecopy
signature of any party shall be considered to have the same binding
legal effect as an original signature.
Rules of Interpretation. Except as otherwise expressly provided in
this Amendment, the following rules shall apply hereto: (a) the
singular includes the plural and plural includes the singular; (b) "or"
is not exclusive and "include" and "including" are not limiting; (c) a
reference to any agreement or other contract includes any permitted
supplements and amendments; (d) a reference in this Amendment to a
section or exhibit is a reference to a section or exhibit within or
attached to this Amendment unless otherwise expressly provided; (e) a
reference to a section or paragraph in this Amendment shall, unless the
context clearly indicates to the contrary, refer to all sub-parts or
sub-components of any said section or paragraph; (f) words such as
"hereunder", "hereto", "hereof", and "herein", and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of this Amendment and not to any particular clause
hereof; (g) the headings of the articles or sections and the ordering
or position thereof are for convenience only and shall not in any way
be deemed to affect the meaning of this Amendment; (h) a reference in
this Amendment to a "person" or "party" (whether in the singular or the
plural) shall (unless otherwise indicated herein) include both natural
persons and unnatural persons (including, but not limited to,
corporations, partnerships, limited liability companies or
partnerships, trusts, etc.); (i) all accounting terms not otherwise
defined herein shall have the meanings assigned to them in accordance
with GAAP; and (j) any reference in this Amendment to a "business day"
shall include each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which national banks in New Orleans, Louisiana are
closed.
Construction. The parties agree and acknowledge that they have jointly
participated in the negotiation and drafting of this Amendment and that
this Amendment has been fully reviewed and negotiated by the parties
and their respective counsel. In the event of an ambiguity or question
of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties and no presumptions or burdens of
proof shall arise favoring any party by virtue of the authorship of any
of the provisions of this Amendment. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated there under, unless the context
requires otherwise. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that
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there exists another representation, warranty, or covenant relating to
the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from or
mitigate the fact that the party is in breach of the first
representation, warranty, or covenant.
Governing Law and Waiver of Jury Trial. THIS AMENDMENT IS MADE IN AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA. THE PARTIES
HERETO EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY REGARDING ALL
MATTERS OR DISPUTES ARISING OUT OF OR RELATED TO THIS AMENDMENT. IN NO
EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS
AMENDMENT.
Severability. The parties hereto intend all provisions of this
Amendment 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 Amendment is held to be illegal, invalid, or
unenforceable under present or future law, such provision shall be
fully severable; this Amendment shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part
hereof; and the remaining provisions of this Amendment 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 Amendment corresponding to the unenforceable provision.
Further Assurances. At any time and from time to time after the date
of this Amendment, each party shall execute such additional instruments
and take such other and further actions as may be reasonably requested
by the other party to confirm or otherwise to carry out the intent and
purpose of this Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment as of the date first above mentioned.
XXXXXX.XXX, INC
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
/s/ Xxxxxx X. Xxxxxxxxx, Xx.,
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Xxxxxx X. Xxxxxxxxx, Xx.,
Individually
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