Exhibit 4.05
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into effective as of
July 28, 2003 (the "Effective Date"), by and between US Telesis Holdings, Inc.,
a Delaware corporation (the "Company") and Yale Xxxxx (the "Consultant.")
Recitals
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WHEREAS, Consultant is involved and has experience in the investment
field including mergers and acquisitions and corporate development; and
WHEREAS, the Company needs assistance in finding a merger or other
business developments for the Company that would assist the Company in becoming
operational with a focus on attempting to present to the Company private
companies that would desire to go public through a merger or other transaction
that would allow the private company to be a part of the Company, including
research of industries and corporate development strategies.
WHEREAS, the Consultant is willing to provide such consulting services
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
Agreement
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1. Consulting Services.
a. During the Consulting Term (defined below), Consultant shall
make himself available at the Company's request to advise the
Company in acquisitions or merger proposals presented through
Consultant or other sources. Consultant will seek out merger
candidates for the Company, including research of industries
and corporate development strategies.
b. The Consultant shall devote such time to this engagement as is
reasonably necessary, but the Consultant need not devote full
time or attention to the engagement.
c. Notwithstanding any of the services to be performed above, the
Consultant is prohibited from rendering, and hereby
acknowledges that none of the foregoing consulting services
permit or require him to render, services in any way connected
to capital raising or stock promotion, making a market or
conditioning the market with respect to the Company's capital
stock or any other services or activities that would cause any
shares of common stock issuable by the Company as payment of
all or part of the Consulting Fee to be
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ineligible for registration for resale on Form S-8 under the
Securities Act of 1933.
2. Consulting Term. The term of this Agreement (the "Consulting Term")
shall begin July 28, 2003 and end September 15, 2003.
3. Compensation. Consultant is not being compensated based on a completion
of any transaction or success formula. This Agreement is only on a
"best efforts" basis. Payment shall be 1,000,000 shares of common stock
of U.S. Telesis Holdings, Inc. that have been registered with the
Securities & Exchange Commission under a Form S-8. In consideration of
the services to be performed hereunder, the Company shall issue
Consultant 1,000,000 shares of the Company's common stock (the
"Consulting Fee") to be delivered upon the completion of the Consulting
Term of this Agreement. Consultant shall receive the stock in
certificated form on or before September 15, 2003, and the stock shall
be "free trading" upon issuance and not subject to restrictions as to
transfer under Rule 144 as promulgated under the Securities Act of
1933. The Company represents and warrants that it will have at least
1,000,000 shares of its Common Stock registered on a valid Form S-8
prior to issuance of the shares and it will hold such shares to be
issued to Consultant hereunder.
4. Expenses. Consultant shall be entitled to reimbursement by the Company
of any reasonable expenses incurred in the performance of his
consulting services under this Agreement; provided that the Consultant
shall obtain the prior approval from the Company's President for
expenditures in excess of $250 and shall submit an itemized account of
all reimbursable expenses incurred.
5. Independent Contractor. The Consultant shall be an independent
contractor under this Agreement and shall not be an agent or employee
of the Company. Consultant (and its Affiliates (as hereinafter defined)
or agents) shall not hold itself (or themselves) out as an agent,
employee, partner or joint venture of or with the Company. The
Consultant and its Affiliates shall have no power or authority to bind
or obligate the Company in any manner for any purpose. Nothing herein
shall be construed as establishing a partnership, joint venture or
agency relationship between the Company and the Consultant (and its
Affiliates or agents). The term Affiliate means any entity controlled
by, controlling or under common control with the Consultant.
6. Representation, Warranties and Covenants. Consultant hereby represents
and warrants to and covenants with the Company as follows:
a. Consultant has full right, power and authority to enter into
this Agreement and perform the services contemplated hereunder
during the Consulting Term and the execution of this Agreement
and the performance of its obligations hereunder will not
conflict with or violate any agreement, duty, rule, regulation
or law to which Consultant is subject or by which he is bound.
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b. Consultant will perform services hereunder in full compliance
with all applicable laws. Consultant will not provide any
advice or services hereunder which require the Consultant to
be licensed under any law, rule or regulation unless he is so
licensed and in good standing.
c. Consultant represents that he is not required to maintain any
licenses and registrations under federal or any state
regulations necessary to perform the services set forth
herein. Consultant acknowledges that, to the best of his
knowledge, the performance of the services set forth under
this Agreement will not violate any rule or provision of any
regulatory agency having jurisdiction over Consultant.
Consultant further acknowledges that he is not a securities
Broker Dealer or a registered investment advisor. Company
acknowledges that, to the best of its knowledge, that it has
not violated any rule or provision of any regulatory agency
having jurisdiction over the Company.
7. Legal Representation. Each of Company and Consultant represents that
they have consulted with independent legal counsel and/or tax,
financial and business advisors, to the extent that they deemed
necessary.
8. Indemnification. The Company will indemnify Consultant and hold
Consultant harmless from and against any actual or potential liability
resulting from Consultant's engagement by the Company under this
Agreement. The Company will protect, indemnify and hold harmless
Consultant against any claims or litigation including any damages,
liability, costs and reasonable attorney's fees as incurred with
respect thereto resulting from Consultant's identification or
presentation of a merger to the Company (whether initiated by
Consultant or not.) Company shall have sole obligation and
responsibility for due diligence and evaluating and making a
determination whether to proceed with a merger or upon its completion.
Consultant has no liability in any manner to Company in its analysis,
decisions, or consummation of a merger.
9. Attorneys' Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs in connection with that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
10. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by such other party.
11. Notices. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
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To Company:
U.S. Telesis Holdings, Inc.
Xxxxxxxx Xxxxxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
(000)000-0000
Xxxxxxxx.xxxxxxxxx@xxxxxxx.xxx
To Consultant:
Yale Xxxxx
00000 Xxxxxxxxx Xx., #000
Xxxxxxxxx, XX 00000
(000)000-0000
xxxxxx@xxx.xxx
It is understood that either party may change the address to which notices for
it shall be addressed by providing notice of such change to the other party in
the manner set forth in this paragraph.
12. Choice of Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
13. Arbitration. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties agree
that any action brought by any party against another party n connection
with any rights or obligations arising out of this Agreement shall be
instituted in arbitration in Los Angeles, California before
JAMS/Endispute, Inc.
14. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its
terms may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE CONSULTANT: THE COMPANY:
YALE XXXXX U.S. TELESIS HOLDINGS, INC.
By: /s/ Yale Xxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
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Yale Xxxxx Xxxxxxxx Rigopulos, CEO
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