Exhibit 4.9
CONSULTING AGREEMENT
THIS AGREEMENT (this "Agreement"), made this 23rd day of April, 1999,
by and between XXXXXXXXX VENTURE CAPITAL, L.L.C. ("SVC"), a Delaware limited
liability company, and AFFINITY INTERNATIONAL TRAVEL SERVICES, INC.
("Affinity"), a Nevada corporation.
WHEREAS, SVC has certain expertise in management, financial, investment
and business matters which will be beneficial to Affinity in the conduct of its
business.
WHEREAS, Affinity desires to retain SVC as a consultant and advisor to
Affinity in connection with certain investment and business matters of Affinity
and SVC desires to be so retained and to enter into such an agreement with
Affinity.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained and the consideration to be paid hereunder, and for other valuable
consideration, the parties agree as follows:
1. Recitals are True. The above recitals are true and correct and
incorporated herein.
2. Consulting Services. Affinity agrees to retain SVC and SVC agrees to
be retained by Affinity on an as-needed basis from and after the date hereof
until terminated in accordance with the provisions of Section 6 hereinbelow as a
consultant and advisor to Affinity in connection with certain investment and
business matters of Affinity.
3. Devotion of Time to Consulting Services. SVC shall devote such time
to rendering consulting and advising services as is reasonably requested from
time-to-time by Affinity. The services to be rendered by SVC to Affinity
hereunder may be rendered in person or by letter, telephone or other means of
communication as shall be appropriate under the circumstances. SVC shall not be
required to observe any fixed schedule of attendance at the principal place of
business of Affinity or any other person or entity for the rendition of such
services.
4. Consideration for Consulting Services. As consideration for SVC's
services hereunder during the term of this Agreement, Affinity shall pay SVC and
SVC shall accept from Affinity the following:
(a) on the first (1st) day of each month from and after the date
hereof until terminated pursuant to Section 6 hereof, the sum of $6,666.66
per month, pro rated for any partial month, until all shares of common
stock owned by SVC are registered for sale under the Securities Act of
1933, as amended, or freely tradable on the public securities markets,
pursuant to Rule 144 promulgated under the Securities Act of 1933, as
amended; and
(b) a sum equal to five percent (5%) of the gross investment
proceeds received by Affinity (1) from investor(s) introduced to Affinity
by SVC (and with whom Affinity has no prior relationship) or (2) in a
transaction with respect to which SVC's efforts were instrumental in
negotiating and closing on behalf of the Company. Such sum shall be due
and payable by Affinity upon receipt by Affinity of the proceeds or
consideration from such investment transaction.
In addition, Affinity shall reimburse SVC for all actual expenses
incurred by SVC for services rendered on behalf of Affinity and, at the request
of Affinity, upon submission of appropriate invoices or receipts therefor.
5. Status as Independent Contractor. The parties agree that SVC's
relationship with Affinity will be that of independent contractor, and nothing
in this Agreement shall be deemed to create an employer-employee relationship
between the parties. As such, SVC will not be entitled to any compensation other
than as agreed upon herein.
6. Term of Agreement. The effective date of this Agreement shall be the
date hereof, and it shall remain effective and continue in force and effect
until terminated in accordance herewith; this Agreement may be terminated by
either party upon ten (10) business days prior written notice to the other
party. Termination of this Agreement pursuant to this Section 6 shall in no way
terminate the obligation of Affinity to pay to SVC any amounts accrued under
Section 4 hereof prior to termination.
7. Severability. The parties hereto intend all provisions of this
Agreement 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 Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof; and the
remaining provisions of this Agreement 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 Agreement corresponding to the
unenforceable provision.
8. 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 Agreement 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 SVC at 0000 Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx, 00000 FAX (000) 000-0000, with a copy to Xxxxxxx X. Xxxxx,
Esq., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 FAX: (000) 000-0000; (b)
if to Affinity at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000X, Xx. Xxxxxxxxxx, Xxxxxxx
00000 FAX: (000) 000-0000 with a copy to Xxxxxx X. Xxxxxx, Esq., Brown, Rudnick,
Freed & Gesmer, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (FAX: (000) 000-0000 or
to such other address which may be designated by either Affinity or SVC.
9. Modification. No change or modification of this Agreement 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 7 hereof.
10. Applicable Law and Binding Effect. This Agreement shall be
construed and regulated under and by the laws of the State of Nevada and shall
inure to the benefit of and be binding upon the parties hereto and their heirs,
personal representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement
to be executed the day and year first above written.
AFFINITY INTERNATIONAL TRAVEL SYSTEMS, INC.
By: /s/ X.X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
President
XXXXXXXXX VENTURE CAPITAL, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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XXXXXX X. XXXXXXXXX, XX.
Managing Member
