Exhibit 4.1
Form of Consulting and Acquisition Management
Agreement with Xxxxxxx & Associates, Inc.
CONSULTING AND ACQUISITION MANAGEMENT AGREEMENT
This Consulting and Accusation Management Agreement made this 3rd day of
April, 1997 by and between Workforce Systems, Corp., a Florida corporation (the
"Company") and Xxxxxxx & Associates, Inc., a Florida corporation ("Xxxxxxx").
WHEREAS, the Company desires to engage the services of Xxxxxxx (the
"Services") to identify and evaluate merger or acquisition candidates for the
Company as well as to assist the Company in the identification, evaluation and
structure mergers, consolidations, acquisitions, joint ventures and strategic
alliances (hereinafter collectively referred to as "Acquisitions") and to
provide certain financial public relations services for Company.
WHEREAS, Xxxxxxx has represented to the Company that it has expertise in
such areas and has successfully performed such services for other
publicly-traded companies in the past.
WHEREAS, Xxxxxxx desires to perform the Services on behalf of the Company.
WHEREAS, the parties hereto desire to set forth the terms and conditions
of the engagement of Xxxxxxx to perform the Services.
NOW THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally binding hereby, the parties hereto agree as follows:
1. RECITALS. The foregoing recitals are true and correct.
2. CONSULTING SERVICES.
2.1 The Company hereby retains Xxxxxxx as a consultant to perform
the Services and to assist the Company in the closing of Acquisitions for the
account of Company upon such terms and conditions as are acceptable to Company
and Xxxxxxx hereby accepts such engagement. Notwithstanding anything to the
contrary contained herein, each Acquisition shall be subject to the approval of
the Company, which approval may be withheld or delayed for any reason in the
Company's sole and absolute discretion.
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2.2 Xxxxxxx shall, in connection with each proposed Acquisition
assist the Company as requested in the consummation of the transaction. If any
Acquisition other than the Star Hosiery, Inc. acquisition is completed by the
Company or an affiliate during the term of this Agreement, Xxxxxxx shall be
entitled to the fees set forth in subparagraph 4.2 hereof. Xxxxxxx, however,
agrees that it will participate as may be requested by the Company in the Star
Hosiery, Inc. acquisition.
2.3 Xxxxxxx, in addition, agrees to assist and advise the Company
in its financial public relations by working with outside entities as directed
by the Company.
3. TERM. This agreement shall be for a term ("Term") of five (5) years
from the date hereof. However, the Agreement may be terminated by either party
on the annual anniversary date of this Agreement upon thirty (30) days prior
written notice.
4. COMPENSATION. The Company shall pay the following compensation to
Xxxxxxx in consideration of the Services to be rendered hereunder:
4.l. A monthly fee of one thousand dollars ($1,000.00) during the
term of this Agreement. Such fee shall include normal out of pocket expenses
incurred by Xxxxxxx. Any extraordinary expenses for which Xxxxxxx desires to be
reimbursed must be approved in writing in advance by the Company.
4.2. Upon the consummation of each Acquisition by the Company or a
subsidiary thereof, a fee of three percent (3%) of the Aggregate Market Value
(as hereinafter defined) of the Acquisition to be paid in cash or registered
shares of the Company's common stock at the sole discretion of the Company.
4.3. For the purposes of this Agreement, Aggregate Market Value
shall mean (i) in the event that the Company, or substantially all of its issued
and outstanding stock is acquired, the number of fully diluted shares of the
Company's common stock so acquired times the fair market value per share of the
cash paid and/or the securities issued by the acquiring party, (ii) in the event
that the Company acquires another entity, or its stock, the fair market value of
the cash paid and/or the securities issued by the Company for such other
entity's common stock, and (iii) in the event of an Acquisition of the Company's
assets, or an Acquisition by the Company of assets of another entity, the fair
market value of the pre-tax consideration received or paid (as the case may be)
by the Company including assumption of indebtedness. For the purpose of this
Agreement, the fair market value of equity and debt securities will be
determined based upon (i) the closing sale price for such securities on the
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registered national securities exchange providing the primary market in such
securities on the last trading day prior to the closing date of the Acquisition
or other transaction, or (ii) if such securities are not so traded, the good
faith estimate of the Board of Directors of the Company.
4.4 In the event this Agreement is terminated or expires pursuant
to the provisions of Paragraph 3 hereof, the provisions of subparagraphs 4.2 and
4.3 shall be in effect for a period of one year from such termination date; and
with respect to any Acquisitions introduced by Xxxxxxx to the Company, for a
period of two years from the termination date.
4.5 Upon the execution of this Agreement the Company shall xxxxx
Xxxxxxx options to purchase 500,000 shares of the Company's common stock, such
options to be effective as of April 3, 1997 and exercisable until July 3, 1997
at a price of $1.00 per share. Such shares shall be delivered by the Company,
upon the exercise of the options, shall be registered shares.
4.6 In the event Xxxxxxx shall have exercised all or any portion
of the options granted pursuant to Paragraph 4.5 hereof and no Acquisition shall
have been consummated by the Company during the Term of this Agreement, upon the
expiration of the Term of this Agreement and upon the request of the Company,
Xxxxxxx shall return to the Company a number of shares of the Company's common
stock equal to the number of options granted under Paragraph 4.5 hereof which
have been exercised by Xxxxxxx.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
6. WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
which any party may otherwise have at law or in equity.
7. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
8. NO ASSIGNMENT. This Agreement is not assignable by the parties
without the prior consent of the others.
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9. SEVERABILITY. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or other provision
of this Agreement shall in no way affect the validity or enforcement of any
other provision or part thereof.
10. NO AGENCY. Xxxxxxx shall not, without the express written consent of
the Company, hold itself out as the agent of the Company, nor shall Xxxxxxx have
the authority to bind the Company or incur liabilities on behalf of the Company,
except as otherwise provided for herein, without the express written consent of
the Company.
11. NOTICES. All notices to be given hereunder shall be in writing, with
fax notices being an acceptable substitute for mail and/or and delivery to:
If to Xxxxxxx: 0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, President
If to the Company: Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, President
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
WORKFORCE SYSTEMS CORP.
BY:
---------------------------------
Xxxx Xxxxxxxx, President
XXXXXXX & ASSOCIATES, INC.
BY:
---------------------------------
Xxxxx X. Xxxxxxx, President
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