EXHIBIT 10.3 Consulting Services Agreement
This Consulting Services Agreement ("Agreement") sets forth the terms and
conditions upon which ALTRES GROUP, LLC ("ALTRES") is engaged by DURA TRACK
ENTERPRISES, INC., including successors or assigns (collectively "DURA
TRACK") to effect certain transactions ("the Transactions") intended to (1)
assist and/or facilitate in the creation of the corporate entity to be called
DURA TRACK; (2) provide consulting services and/or assistance to the company
so that it is in a position to become a United States reporting company; (3)
assist in the preparation and/or making the appropriate filings to effectuate
the company as a publicly-traded entity; (4) assist and/or facilitate the
registration for sale of either existing shareholder shares or shares to be
issued in a public offering; and, for related matters.
1.0 Services Provided.
Following its engagement, ALTRES and its affiliates will:
1.1 Advise DURA TRACK on the structure of Transactions and actions to be
taken by DURA TRACK in preparation for the completion of the Transactions;
1.2 Take such steps as may be appropriate to organize DURA TRACK in
preparation for becoming a United States reporting company;
1.3 Effectuate such filings as are necessary to allow DURA TRACK to become a
trading company;
1.4 Help prepare and file with the Securities and Exchange Commission a Form
10SB or SB-2 describing the DURA TRACK business and registering the company
as a reporting company with the SEC;
1.5 Introduce the Company to one or more market makers for the purpose of
making an orderly and efficient market in the Company's securities;
1.6 Assist the Company with listing its securities on the NASD "Pink Sheets"
or OTC-Bulletin Board;
1.7 Prepare and file with the Securities and Exchange Commission a Form SB-2,
or other such form as the situation may require, to register either (1) the
"restricted" shares held by existing shareholders for sale or (2) new shares
for issuance by the Company.
1.8 Take any other actions reasonably required of it to complete the
Transactions as may be contemplated by this agreement.
2.0 Payments.
2.1 DURA TRACK will pay ALTRES a total of $45,000 for its services and the
services of its affiliates in regard to the Transactions. Payment of this
amount will be made $5,000 on execution of this agreement, with the remaining
$40,000 balance payable immediately upon filing of a Form 15(c)211 package
with a securities broker/dealer and acceptance of same by the NASD as part of
DURA TRACK's effort to have its securities become publicly traded. Payments
hereunder are deemed accrued when payable and are non-refundable. Any
payments not paid timely as set forth herein shall accrue at an annual rate
of 15%, payable monthly, until such time as they are paid in full
3.0. Expenses.
3.1 ALTRES will bear its expenses incurred in regard to the Transactions,
including, without limitation, travel, telephone, duplication costs, and
postage.
3.2 DURA TRACK will pay its own and any third-party expenses (other than
those expenses of ALTRES) including without limitation, SEC, Federal, State,
and Nasdaq filing fees, underwriting and market making costs, corporate
financial relations, accounting fees, and duplicating costs and other
expenses of the Company. ALTRES will not incur any expenses on behalf of the
Company unless permitted by it to do so in writing.
4.0. Agreement to Complete Transactions.
4.1 DURA TRACK agrees that it will timely take all steps necessary to
complete the Transactions to include, without limitation, causing audited
financial statements to be prepared in proper form for DURA TRACK; obtaining
consents of the Board of Directors and the shareholders of DURA TRACK, as
required; causing all necessary documents to be properly and timely prepared,
executed, approved or ratified, and filed, as appropriate, making timely and
fully all required payments related to the registration and listing of the
Company's securities for public trading, including filing fees; and timely
taking all other actions reasonably required of it to complete the
Transactions.
4.2 In the event that at any time DURA TRACK determines not to continue with
the Transactions, ALTRES hereby grants to DURA TRACK the right to buyout the
interest of ALTRES in this agreement on the terms contained herein, in which
case ALTRES agrees not to seek specific enforcement of this agreement. In the
event that DURA TRACK elects not to continue with the Transactions (or if
DURA TRACK does not timely take all such steps and do all such things as may
be reasonably required of it to complete the Transactions) ALTRES will be
entitled to receive, in full, all payments to be due to it or its affiliates
through and upon completion of the Transactions as though those events had
occurred provided, however, that DURA TRACK will not be obligated to make any
payment under this paragraph if the failure to complete the Transactions is
due to any actions or failure to act by ALTRES or its affiliates. Upon
payment of the buyout fee provided for herein, all obligations of the parties
under this agreement will cease except for obligations which expressly or by
their nature survive termination.
4.3 ALTRES represents and warrants that it will timely take all steps
reasonab1e and necessary to complete the Transactions and to cause the
securities of the Company to trade in the United States secondary market, and
for the Company to become a registered reporting company with the United
States Securities and Exchange Commission by way of a filing of a Form 10SB
or Form SB-2 to register either the shares held by existing shareholders or
to register shares to be issued by the Company in a public offering.
5.0 Performance of Services by Others.
From time to time, the achievement of certain results desired by the Company,
including the promotion of interest in its public securities, may be enhanced
by the services of other parties. These parties may include consultants,
advertising agencies, financial analysts, and similar persons who may,
directly or indirectly, assist in creating interest in the Company's
securities. All compensation, costs and expenses of such parties, if engaged
by the Company will be borne by it.
6.0 Actions and Understandings.
6.1 DURA TRACK understands the obligations and responsibilities that will
arise in regard to its becoming a reporting company and the trading of its
securities in the public market. DURA TRACK understands that in order to
achieve the greatest market interest in its securities, it, its officers, and
its directors, all or some, will be required to continuously interact with
the financial community. This interaction will include, without limitation,
timely filing of reports under the Securities Exchange Act of I934, including
audited financial statements; annual reports to shareholders and shareholder
meetings; issuing periodic press releases; and meetings and discussions with
existing and prospective investment bankers and institutions.
6.2 DURA TRACK understands that the completion of the Transactions will not,
in itself, result in capital investment in the Company. The public status of
the Company and its introduction to market makers and others in the financial
community may result in investment interest. However, investment interest
will depend upon the success of the Company, market conditions, and other
factors over which neither ALTRES nor its affiliates have any control.
6.3 DURA TRACK understands that the ultimate judgement of the financial
community of the investment merits of the Company will depend upon the
Company's ability to successfully carry out its business p1ans and
operations, to operate at a profit and similar business considerations. DURA
TRACK represents in good faith that it currently has no reason to believe
that it will not be able to complete the Transactions and to achieve its
business objectives.
6.4 DURA TRACK understands that the first trading in the Company's securities
may be limited, and that to increase the amount, depth, and market price of
its securities will require both time and effort by the Company to develop
relations with market makers and to create strong and stable trading of the
Company's securities.
6.5. During the Transactions and so long as ALTRES or an affiliate may be a
Shareholder of the Company, it will provide ALTRES continuing and reasonable
access as requested to all information concerning the Company's operations,
past, current, and intended, including, without limitation, full access to
the financial records of the Company as any other shareholder of record upon
15 days written notice at the expense of ALTRES.
7.0. Compliance with Securities Law.
Now and following the Transactions, as applicable, DURA TRACK represents and
warrants that:
7.1 DURA TRACK and its affiliates will at all times observe and comply with
Federal and State securities laws, rules, and regulations incident to the
issuance and trading of the securities of the Company and will take all steps
reasonably required within its control to prohibit any persons, whether or
nor affiliated with DURA TRACK, from engaging in any transactions in
contravention of such laws, rules, and regulations.
7.2 DURA TRACK and its affiliates will furnish all information and documents
concerning it and its affiliates required for the preparation and filing of a
Form 10-SB or Form SB-2 by the Company and will assure that all such
information is complete and accurate and does not contain any material
misstatement or omit any material information. Toward that end, DURA TRACK
and its affiliates will timely provide all requested information and
documents, including officers and directors questionnaires.
7.3 DURA TRACK and its affiliates will not at any time knowingly engage in
any activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within
is control to prohibit my officer, director, other affiliate; agent or
emp1oyee from engaging in such conduct.
7.4 The Company will not issue any securities to any person for the promotion
or maintenance of a trading market in the Company's securities without first
receiving an opinion of qualified counsel that such issuance will be in
accord with securities 1aws, rules, and regulations and wil1 not, directly or
indirectly, receive from such persons any capital by loan, investment or
otherwise resulting from the sale or pledge of such securities.
7.5 For not less than 36 months following execution of this agreement, and
when applicable, the Company will timely make all required Federal, State,
and other filings necessary to allow the public trading of the Company's
securities and, if the Company's securities are then quoted on the Nasdaq
Stock Market or listed on any regional or national exchange, will take all
actions necessary to maintain such status for the Company's securities
8.0 Notices.
Any notices required or permitted under this agreement shall be deemed to
have been given when delivered in writing by hand, certified mail (return
receipt requested) or commercial courier, such as FedEx, to the following
addresses or to such other addresses as may have been given to each party in
the mariner provided for in this paragraph.
In the case of DURA TRACK or the Company to:
DURA TRACK ENTERPRISES, INC.
0000 000xx Xxxxxx
Xxxxxx, XX Xxxxxx X0X 0X0
Or to:
DURA TRACK ENTERPRISES, INC.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0-X
Xxx Xxxxx, XX 00000
In the case of ALTRES to:
ALTRES GROUP LLC
0000 X Xxxxxxxxxx Xx.
Xxxxxxx, XX 00000
9.0 Arbitration.
9.1 Scope. The parties hereby agree that any and all claims (except only for
requests for injunctive or other equitable relief) whether existing now, in
the past, or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause will be resolved by arbitration before the American Arbitration
Association within the state of California.
9.2 Consent to Jurisdiction, Situs, and Judgement. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration
Association and the situs of the arbitration within the State of California.
Any award in arbitration may be entered in any domestic or foreign court
having jurisdiction over the enforcement of such awards.
9.3 Applicable Law. The law applicable to the arbitration and this agreement
shall be that of the State of California, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws
9.4 Disclosure and Discovery. The arbitrator may, in its discretion, allow
the parties to make reasonable disclosure and discovery in regard to any
matters that are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be modified by
the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration.
9.5 Rules of Law. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of
the jurisdiction whose law applies to the arbitration so that the decision of
the arbitrator will be, as much as possible, the same as if the dispute had
been determined by a court of competent jurisdiction.
9.6 Finality and Fees. Any award or decision by the American Arbitration
Association shall be final, binding, and non-appealable except to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each Party to the arbitration shall pay its own
costs and counsel fees.
9.7 Measure of Damages. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and/or securities issued or to
be issued and no claims shall be made by any party or affiliate for lost
profits, punitive, or multiple damages.
9.8 Covenant not to Xxx. The parties covenant that under no conditions will
any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any
such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
9.9 Intention. It is the intention of the parties and their affiliates that
all disputes of any nature between them, whenever arising, whether in regard
to this agreement or any other matter, from whatever cause, based on whatever
law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party
or affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
9.10 Survival. The provisions for arbitration contained herein shall survive
the termination of this agreement for any reason.
10.0 Assignment.
In order to better carry out the Transactions, ALTRES may assign all or parts
of this agreement provided that the assignee agrees to all the terms and
conditions of this agreement pertaining to such assignment. An assignment
will not relieve ALTRES of any of its obligations under this agreement.
11.0 Confidentiality.
As a result of entering in to this agreement, DURA TRACK will have access to
information which ALTRES regards as confidential and proprietary regarding
ALTRES' methods of carrying out the Transactions (collectively the "Business
of ALTRES"). DURA TRACK agrees that it will not, except as reasonably
required pursuant to this Agreement, use itself, or divulge, furnish, or make
accessible to any person any knowledge, know-how, techniques, or information
with respect to ALTRES or the Business of ALTRES without the prior written
consent of ALTRES.
12.0 Termination.
ALTRES may terminate this agreement, without further obligation or liability,
at any time (i) that ALTRES has a reasonable basis to believe that any aspect
of the transactions covered by this agreement would constitute a fraud or
deception on the market or (ii) that the Company fails to meet its
obligations under this agreement in a manner which would constitute a
material breach. In any such case, ALTRES will be entitled to retain all
payments to it made or accrued prior to such termination. All fees will be
refunded to DURA TRACK if it becomes evident that ALTRES can not or will not
perform under the terms of this agreement.
13.0 Miscellaneous.
13.1 Covenant of Further Assurances. The parties agree to take any further
actions and to execute any further documents that may from time to time be
necessary or appropriate to carry out the purposes of this agreement.
13.2 Scope of Agreement. This agreement and any attached pooling agreement
constitute the entire understanding of the parties. No undertakings,
warranties, or representations have been made other than as contained herein,
and no party shall assert otherwise. This agreement may not be changed or
amended orally.
13.3 Currency. All references to currency in this agreement are to United
States Dollars.
13.4. Review of Agreement. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made
against any party on the basis that it has prepared, or participated in the
preparation of, this agreement.
14.0 Effective Date.
The effective date of this agreement is April 23, 2004.
IN WITNESS WHEREOF, the parties have approved and executed this agreement.
ALTRES Group, LLC
/s/ Xxxxx Xxxxxxx
Managing Member
DURA TRACK ENTERPRISES, INC.
/s/ Xxxxxx Xxxxxxx
President
Warranties by Officers, Directors, and Other Affiliates.
Each of the undersigned officers, directors, and other affiliates of DURA
TRACK agree that they have read this agreement and that they (i) will not
violate any of the provisions of this agreement relating to compliance
with securities laws, rules, and regulations (ii) will not violate any
provision of this agreement relating to confidentiality of the business of
ALTRES and (iii) consent to be governed by the provisions of this
agreement relating to arbitration in the case of any claims arising from
their warranties herein.
