Exhibit 4.11
BUSINESS CONSULTING AGREEMENT
Agreement made this 17th day of February, 2002, between ATR Search Corporation,
(hereinafter referred to as "Corporation"), and MLSA, (hereinafter referred to
as "Consultant"):
In compliance with the Securities Act of 1933, the following "natural persons"
will be the recipients of compensatory shares: Xxxx X. Xxxxxxxxx. No other
persons will be recipients of said compensatory shares. No shares are being
sought for capital raising transactions or "promotional" efforts of the
Corporation's public market.
In consideration of the mutual promises contained in this Agreement, the
contracting parties agree as follows:
Recitals:
A. It is the desire of the Corporation to engage the services of the
Consultant to consult with the Corporation regarding certain
opportunities available to the Corporation and other relevant matters
relating to the business of the Corporation.
B. The Consultant is involved in the strategic planning and corporate
development industry and, from time to time, does assist businesses in
identifying and acquiring certain business and growth opportunities.
C. The parties desire that the Corporation retain the Consultant to
consult with the Corporation and assist the Corporation in identifying,
locating and, possibly, acquiring various business and growth
opportunities for the Corporation, on the terms and subject to the
conditions specified in this Agreement.
D. Prior to this Agreement, the Corporation and Consultant have agreed
that a compensatory, mutually binding agreement, is in the best interest
of the Corporation.
AGREEMENT
Term
1. The respective duties and obligations of the contracting parties shall be
for a period of ninety (90) days commencing on the date of February 18, 2002.
This agreement will have an automatic three (3) month renewal provision to be
enacted upon expiration of initial and subsequent agreement term(s). This
Agreement may be terminated by either party only in accordance with the terms
and conditions set forth in Paragraph 7, below.
Services Provided by Consultant
2. Services
(a) The Consultant will devote such amount of time and effort necessary to
accomplish the services required. However, there is no requirement that
Consultant devote a certain amount of time or effort hereunder. During
the term of this Agreement, Consultant will provide certain strategic
planning services to the Corporation.
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(b) Consultant will aid and assist the Corporation as a consultant to
potential strategic alliances, and other Consultative services
(collectively, Consultative Services).
(c) Corporation and Consultant will mutually agree upon any additional
duties that Consultant may provide for Corporation outside of this
Agreement.
Compensation
3. In consideration for the services provided by Consultant to Corporation,
the Corporation shall pay or cause to be delivered to the Consultant, on the
execution of this Agreement, Seven Hundred and Fifty Thousand (750,000) shares
of the Corporation's common stock, to be registered and "freely tradable" via an
S8 registration statement effective immediately. With an additional Three
Hundred Thousand (300,000) to be paid on the second and third subsequent months
of this contract.
Compliance
4. If a registration is contemplated, the shares shall have "piggy back"
registration rights and will, at the expense of the Corporation, be included in
said registration.
Representations of Corporation
5. Representations of Corporation
(a) The Corporation, upon entering this Agreement, hereby warrants and
guarantees to the Consultant that all statements, either written or oral, made
by the Corporation to the Consultant are true and accurate, and contain no
misstatements of a material fact. The corporation acknowledges that the
information it delivers to the Consultant will be used by the Consultant in
preparing materials regarding the Corporation's business, including but not
necessarily limited to, its financial condition, for dissemination to the
public. Therefore, in accordance with Paragraph 6, below, the Corporation shall
hold harmless the Consultant from any and all errors, omissions, misstatements,
negligent or intentional misrepresentations, contained in any information
furnished by Corporation to Consultant, in accordance with and pursuant to the
terms and conditions of this Agreement for whatever purpose or purposes the
Consultant sees fit to use said information. The Corporation further represents
and warrants that as to all matters set forth within this Agreement, the
Corporation has had independent legal counsel and will continue to maintain
independent legal counsel to advise the Corporation of all matters concerning,
but not necessarily limited to, corporate law, corporate relations, investor
relations, all manners concerning and in connection with the Corporation's
activities regarding the Securities Act of 1933 and 1934, and state Blue Sky or
Securities laws.
Consultant has no responsibility to obtain or render legal advice in connection
with the Corporation's sale of securities. All legal, regulatory or licensing
matters as relates to the corporate sale of securities are the responsibility of
the Corporation and its counsel.
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(b) Corporation shall provide, at its' expense, suitable "Due Diligence"
packages to Consultant as needed.
Limited Liability
6. With regard to the services to be performed by the Consultant pursuant to
the terms of this Agreement, the Consultant shall not be liable to the
Corporation, or to anyone who may claim any right due to any relationship with
the Corporation, or any acts or omissions in the performance of services on the
part of the Consultant, or on the part of the agents or employees of the
Consultant, except when said acts or omissions of the Consultant are due to its
willful misconduct or culpable negligence.
Termination
7. This Agreement may be terminated by either party upon the giving of not
less than thirty (30) days written notice, delivered to the parties at such
address or addresses as set forth in Paragraph 8, below. In the event this
Agreement is terminated by the Corporation, all compensation paid by Corporation
to the Consultant shall be deemed earned, and no part of the compensation will
be refunded or prorated.
Notices
8. Notices to be sent pursuant to the terms and conditions of this Agreement,
shall be sent as follows:
As to Consultant:
MLSA
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
000-000-0000 office
000-000-0000 fax
As to Corporation:
ATR Search Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 office
(000) 000-0000 Fax
Trade Secrets - Confidentiality
9. Corporation and Consultant mutually acknowledge and agree that any
confidential information is proprietary to and a valuable trade secret of
Consultant or Corporation as applicable and that any disclosure or unauthorized
use thereof will cause irreparable harm and loss to consultant. The parties
hereto agree that all such information conveyed to Corporation regarding the
operations and services of Consultant or to Consultant regarding the operations,
services and products of the Corporation constitutes a trade secret and shall be
afforded the protections provided the Uniform Trade Secrets Act or any other
applicable laws.
The Corporation and the consultant agree at all times during the term this
Agreement and after the termination of this Agreement to hold in strictest
confidence, and not to use, except for the benefit of the other party, or to
disclose, transfer or reveal, directly or indirectly to any person or entity any
Confidential information without the prior written authorization of the other
party for a period of two (2) years. For purposes of this Agreement,
Confidential Information shall mean any and all information that is not
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generally known and that is proprietary to both parties or any of their clients,
consultants or licensors. Confidential Information includes, without limitation,
names of investors, buyers, sellers, borrowers, lenders introduced by the
Consultant of its associates' business plans, client lists consultants,
financial information, and trade secrets about the Consultant and its products
and information or other proprietary information relating to designs, formulas,
developmental or experimental work, know how, products processes, computer
programs, source codes, databases, designs, schematics, or other original works
of authorship.
Attorneys' Fees - Arbitration
10. In the event any litigation or controversy, including arbitration, arises
out of or in connection with this Agreement between the parties hereto, the
prevailing party in such litigation, arbitration or controversy, shall be
entitled to recover from the other party or parties, all reasonable attorneys'
fees, expenses and suit costs, including those associated within the appellate
or post judgment collection proceedings.
Any dispute or disagreement arising out of this Agreement shall be fully
and finally resolved through binding arbitration, before a single arbitrator in
Midland, Texas in accordance with the rules of the American Arbitration
Association governing commercial disputes. In the event that the parties cannot
agree upon a single arbitrator, the arbitrator shall be a retired judge of the
Midland District Court upon ex parte application by any party on 72 hours notice
to the other party(ies). The costs of the Arbitration including without
limitation, the fees of the arbitrator (but excluding each party's attorney's
fees) shall be initially shared equally by the parties but may be awarded by the
arbitrator as additional damages in favor of the prevailing party. The
Arbitrator shall apply Texas law in reaching his decision. The decision of the
arbitrator shall be binding and nonappealable.
Governing Law
11. This Agreement shall be construed under and in accordance with the laws of
the State of Texas, and all obligations of the parties created under it are
performed in Midland County, Texas. In any controversy arising out of this
Agreement, venue for said proceeding shall be in Midland County, Texas.
Parties Bound
12. This Agreement shall be binding on and inure to the benefit of the
contracting parties and their respective heirs, executors, administrations,
legal representatives, successors, and assigns when permitted by this Agreement.
Miscellaneous
13. Other miscellaneous provisions:
(a) Subsequent Events. Consultant and the Corporation each agree to notify the
other party if, subsequent to the date of this Agreement, either party incurs
obligations which could compromise its efforts and obligations under this
Agreement.
(b) Amendment. This Agreement may be amended or modified at any time and in
any manner only by an instrument in writing executed by the parties hereto.
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(c) Further Actions and Assurances. At any time and from time to time, each
party agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the purposes of
this Agreement.
(d) Waiver. Any failure of any party to this Agreement to comply with any of
its obligations, agreements, or conditions hereunder may be waived in writing by
the party to whom such compliance is owed. The failure of any party to this
Agreement to enforce at any time any of the provisions of this Agreement shall
in no way be construed to be a waiver of any such provision or a waiver of the
right of such party thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this Agreement shall be held to
be a waiver of any other or subsequent breach or non-compliance.
(e) Assignment. Neither this Agreement nor any right created by it shall be
assignable by either party without the prior written consent of the other.
(f) Binding Effect. This Agreement shall be binding upon the parties hereto
and inure to the benefit of the parties, their respective heirs, administrators,
executors, successors, and assigns.
(g) Entire Agreement. This Agreement contains the entire agreement between the
parties hereto and supersedes any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter of this
Agreement. No oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No representations, warranties,
covenants, or conditions, express or implied, other than as set forth herein,
have been made by any party.
(h) Severability. If any part of this Agreement is deemed to be unenforceable
the balance of the Agreement shall remain in full force and effect.
(i) Counterparts. A facsimile, telecopy, or other reproduction of this
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, by one or more parties hereto and such executed
copy may be delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen. In this event, such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of any
party hereto, all parties agree to execute an original of this Agreement as well
as any facsimile, telecopy or other reproduction hereof.
(j) Time is of the Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
IN WITNESS WHEREOF, to the terms and conditions described herein, the parties
have set their hands and seal as of the date written above.
ATR Search Corporation The Consultant: MLSA,
Xxxxxx Xxx, President Xxxx X. Xxxxxxxxx
by: /s/ Xxxxxx Xxx by: /s/ Xxxx X. Xxxxxxxxx
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Date: 2/20/02 Date: 2/20/02
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