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EXHIBIT-4(a)
CONSULTING AGREEMENT
AGREEMENT made this 8th day of October, 1998, by and between ROLLING ROCK
CAPITAL CORPORATION, a corporation having its principal place of business at
00000 Xx Xxxxx, Xxxxx 00, Xxxx Xxxxxx, Xxxxxxxxxx 00000, hereinafter referred
to as the "Consultant", and ENHANCED SERVICES COMPANY, INC., a corporation,
having its principal place of business at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, XX 00000, hereinafter referred to as "Company".
WHEREAS, Consultant provides marketing and related services to public and
private corporations;
WHEREAS, the Company desires to engage the services of the Consultant for
purposes of creating and executing a marketing program to enhance the exposure
of the Company to the financial community;
WHEREAS, Consultant wishes to accept such engagement; and
WHEREAS, the parties desire to set forth their respective rights, duties and
obligations to each other in writing;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein the parties agree as follows:
1. OBLIGATIONS OF CONSULTANT
1.1 Consultant will review the Company's current business and marketing
plan and advise the Company as to Consultant's suggested changes.
1.2 Consultant will also advise the Company with respect to strategic
planning, developments in the Internet and Electronic Commerce sector,
and mergers and acquisitions.
2. COMPENSATION AND EXPENSES
2.1 Contractor has agreed to accept 161,000 shares of the Company's Common
Stock as full compensation, upon execution of this Agreement. All
shares are immediately registered.
3. TERM OF CONTRACT, TERMINATION
3.1 The term of this Agreement shall be for a period of One (1) year
commencing on the day of date of execution of this Agreement and
terminating One (1) year thereafter, unless renewed or extended in
writing by the parties Thirty (30) days' prior to its termination.
4. OBLIGATIONS OF THE COMPANY
4.1 The Company acknowledges that all persons introduced to the Company
either in person, verbally, in writing or by referral, are the
exclusive contacts, leads and clients of the Contractor.
4.2 The Company represents and warrants that all documents, financial
statements, filings and marketing materials, and any other material
provided to Contractor regarding the Company or its operations, will
be true and accurate, and that the Company will promptly notify
Contractor of any change in any of the material.
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4.3 Neither Contractor nor the Company may bind one another
contractually, except for the clauses contained herein.
4.4 The Company shall identify Contractor absolutely with regard to any
and all actions of demand made by any person or entity in relation to
the contents of the materials and information provided by the Company.
5. CONFIDENTIALITY
5.1 The parties hereto acknowledge that they may, during the course of
their performance of their obligations under this agreement, gain
access to, or knowledge of confidential or proprietary information
regarding another party, as well as trade secrets belonging to another
party, including the means and methods by which a party conducts its
business operations.
5.2 All parties therefore agree that they will at all times keep
absolutely secret and confidential and that they will not directly or
indirectly disclose to any person at any time or make any authorized
use of any parties confidential information, proprietary information,
or trade secrets, including the means and methods by which the parties
conduct their business operations.
6. DEFAULT
6.1 Upon a breach of any of the terms of this Agreement by one of the
parties hereto ("the defaulting party") the other party ("the
non-defaulting party") shall give written notice of such breach to the
defaulting party giving such party Seven (7) days to remedy such
breach.
6.2 If the breach is not remedied within the Seven (7) day period
aforesaid then the non-defaulting party shall in addition to its other
legal rights be entitled to terminate this Agreement.
7. TERMINATION
7.1 Either party shall be entitled to terminate this Agreement if one of
the parties commits or permits any one or more of the following acts
which will constitute a material breach of this Agreement:
7.1.1 The filing or failure to consent within Ten (10) days of
service any bankruptcy petition.
7.1.2 The liquidation or dissolution of any party.
7.1.3 The appointment of a voluntary administrator, receiver, for
any party.
7.1.4 Making an assignment for the benefit of creditors or making
any composition or arrangement with such creditors.
7.1.5 The violation of any law, ordinance, rule or regulation of any
government authority in connection with the services provided
herein, the operation of the Company, or the materials to be
distributed hereunder.
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8. ASSIGNMENT
8.1 This Agreement shall not be assigned by either party without the
prior written consent of the other party.
9. CHOICE OF LAW
9.1 All disputes concerning the validity, interpretation, or performance
of the Agreement and any of its terms or provisions, or of any
rights or obligations of the parties hereto, shall be governed by
and resolved in accordance with the laws of the State of California.
10. ARBITRATION
10.1 Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, including without limitation, any
claim that this Agreement, or any part thereof, is invalid, illegal
or otherwise voidable or void, shall be submitted to arbitration in
accordance with the Commercial Rules of the American Arbitration
Association; provided, however that this clause shall not be
construed to limit or to preclude either party from bringing any
action in any court of competent jurisdiction for injunctive or
other provisional relief as necessary or appropriate. The
arbitration shall be conducted in California, or at the office of
the American Arbitration Association, which is closer to said
location. Any award or determination of the arbitration tribunal
shall be final, non-appealable, and conclusive upon the parties, and
judgement thereon may be entered by any court of competent
jurisdiction.
10.2 ATTORNEY'S FEES. If any arbitration or other legal action is
initiated by either of the parties hereto, the prevailing party
shall be entitled to recover from the other party reasonable
attorney's fees in addition to any other relief that may be awarded.
11. NOTICES
11.1 All written notices permitted or required by the provisions of the
Agreement shall (unless otherwise provided) be deemed so delivered
when actually delivered by hand or when placed in United States Mail
by Registered Mail or Certified Mail, Return Receipt Requested,
postage prepaid and addressed to the following address.
If to Zulu: Enhanced Services Company, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax No. (000) 000-0000
With a copy to: Enhanced Services Company, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax No. (000) 000-0000
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If to Client: Rolling Rock Capital Corporation
00000 Xx Xxxxx
Xxxxx 00
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: CEO
Fax No.:
12. WAIVER AND DELAY
12.1 No waiver by either party of any breach or series of breaches of
defaults in performance by the other party, and no failure, refusal or
neglect of either party to exercise any right, power or option given
to it hereunder or to insist upon strict compliance with or
performance of either party's obligations under this Agreement, shall
constitute a waiver of the provisions of this Agreement with respect
to any subsequent breach thereof or a waiver by either party of its
right at any time thereafter to require exact and strict compliance
with the provisions thereof.
13. SUCCESSOR AND ASSIGNS
13.1 This Agreement shall be binding upon and incure to the benefit of the
successors and assigns of the parties hereto, subject to the
restrictions on assignment contained herein.
14. ENTIRE AGREEMENT
14.1 This Agreement contains all of the terms and conditions agreed upon by
the parties hereto with reference to the subject matter hereof. No
other Agreements, oral or otherwise, shall be deemed to exist or to
bind either of the parties hereto, and all prior agreements and
understandings are superseded hereby. This Agreement can not be
modified or changed except by written instrument signed by both of the
parties hereto.
15. TITLES FOR CONVENIENCE
15.1 Titles used in this Agreement are for convenience only and shall not
be deemed to affect the meaning or construction of any of the terms,
provisions, covenants, or conditions of this Agreement.
16. SEVERABILITY
16.1 Nothing contained in this Agreement shall be construed as requiring
the commission of any act contrary to law. Whenever there is any
conflict between any provision of this Agreement and any present or
future statute, law, ordinance or regulation contrary to which the
parties have no legal right to contract, the latter shall prevail, but
in such event the provision of this Agreement thus affected shall be
curtailed and limited only to the extent necessary to bring it within
the requirements of the law. In the event that any part, article,
paragraph, sentence or clause of this Agreement shall be held to be
indefinite, invalid or otherwise unenforceable, the indefinite invalid
or unenforceable
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provisions shall be deemed deleted, and the remains part of the Agreement shall
continue in full force and effect. If any tribunal or court of competent
jurisdiction deems any provision hereof unenforceable, such provision shall be
modified only to the extent necessary to render it enforceable and this
Agreement shall be valid and enforceable and the parties hereto agree to be
bound by and perform same as thus modified.
IN WITNESS WHEREOF, this Agreement was executed by the parties as of the
date first written above.
Enhanced Services Company, Inc.
By: Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: VP and General Counsel
Rolling Rock Capital Corporation
By:_____________________________
Name:___________________________
Title:__________________________
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