EX-4.2
MANAGEMENT CONSULTING AGREEMENT
This Management Consulting Agreement ("Agreement") is made and entered into this
15th day of April 2000 (the "Effective Date") by and between Pinnacle
Performance Fund, Inc. (the "Consultant") and Xxxxxxxxxx.Xxx, Inc., a private
corporation and its publicly traded parent, North Lily Mining Company (jointly
referred as the "Company").
Whereas, Consultant was involved in strategic planning of the concept, creation
and initial business plan of Xxxxxxxxxx.Xxx; and
Whereas, Company desires to engage Consultant to perform certain corporate
planning, business development, and financial strategy services for the Company,
and Consultant desires, subject to the terms and conditions of this agreement,
to perform said services for the Company.
NOW IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKING HEREIN CONTAINED AND
FOR OTHER GOOD AND VALUABLE CONSIDERATIONTHE RECEIPT AND SUFFICIENCY OF WHICH IS
HEREBY ACKNOWLEDGED THE PARTIES AGREE AS FOLLOWS:
1. Engagement of Consultant:
Company hereby engages Consultant and Consultant hereby agrees to hold itself
available to render, and to render at the request of the Company, independent
advisory consulting services concerning the following:
A. Further development of Loanmining's business plan and strategy for
marketing and completing residential mortgages for sub-prime borrowers on
the Internet and in brick and mortar offices.
B. Demographic and socio-economic profiles and analysis for selective
nationwide implementation of market strategy.
C. Development and implementation of accounting and record keeping systems for
mortgage regulatory and SEC reporting papers.
D. Procuring bank credit lines, mortgage warehouse lines commercial lending
facilities, and financing secured by company real estate holdings.
E. Further development of Xxxxxxxxxx.xxx interactive Internet websites
including introduction and negotiation of technical and design support
provider services.
F. Creation and development of advertising/marketing strategy and media
programming concepts, including introduction and negotiation of advertising
providers (including radio, print, T.V. and advanced technology interactive
outlets and exposures).
G. Ongoing strategic corporate planning and long-term investment policies,
including revision of the business plan for the Loanmining and North Lily.
H. Advise and assist the Company in identifying, studying and evaluating
merger, acquisition, joint venture, strategic alliance, technical partners,
recapitalization and restructuring proposals, including preparation of
reports and studies thereon, and assist in negotiations and discussions
pertaining thereto.
I. Other such planning and development services, all as requested and
instructed by the company.
2. TERM:
The term of this agreement ("Term") shall begin as of the Effective Date and
shall terminate three years (3) there after ("Anniversary Date"), subject to
consultant's and Company's respective rights to terminate upon ten days' written
notice. Consultant shall perform the full term hereof, provided and to the
extent he is compensated as provided herein and requested by Company to so
perform.
3. COMPENSATION:
In consideration of the services to be provided for the Company by the
Consultant the Company agrees to compensate the Consultant as follows:
On July 31, 2000 the Company agrees to issue to the Consultant 300,000 shares of
the Company's common stock and thereafter 300,000 shares of the Company's common
stock on the 17th month and 400,000 shares of the Company's stock on the 36th
month all with "piggy back" or S-8 registration rights. Such shares shall be
held in the Company's deferred stock account on behalf of the Consultant and
issued in accordance to the terms above, or on such earlier dates as the Company
shall determine.
If pursuant to 1.H. above, Consultant introduces a merger or a combination of
sorts with another entity to the Company, the Consultant shall be entitled to a
finder's fee of four percent of the total combination of the shares outstanding
of the two companies upon closing, but not more than 800,000 shares.
4. INDEPENDENT CONTRACTOR:
It is expressly agreed that Consultant is acting as an independent contractor in
performing its services hereunder. Company shall carry no workmen's compensation
insurance or any health or accident insurance to cover Consultant. The Company
shall not pay any contributions to social security, unemployment insurance,
Federal or State withholding taxes nor pay any other contributions or benefits,
which might be expected in an employer-employee relationship.
5. ASSIGNMENT:
This Agreement and the rights and obligations of the parties hereunder shall
inure to the benefit of and shall be binding upon their successors and assigns
but cannot be assigned by Consultant without prior written consent of Company.
6. GENERAL PROVISIONS:
6.1 The Consultant hereby agrees, warrants and covenants that it will
provide to the Company copies of all works product for review, use and
retention as company sees fit. Consultant further agrees, warrants and
covenants not to utilize or disclose any during the term hereof and for
12 months thereafter.
6.2 The Consultant agrees to provide full and accurate disclosure of any
and all equity compensation, which Consultant has received or will
receive under this agreement, whereas required under the Securities Act
of 1933 and the Securities Exchange Act of 1934.
6.3 Governing law and jurisdiction:
This agreement shall be governed by and interpreted in accordance with
the laws of the state of Colorado. Each of the parties hereto consents
to such jurisdiction for the enforcement of this agreement and matters
pertaining the transaction and activities contemplated hereby.
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6.4 Notices:
All notices and other communications provided for or permitted
hereunder shall be made by hand deliver, first class mail, and
telex/fax, addressed as follows:
Pinnacle Performance Fund, Inc. Xxxxxxxxxx.Xxx, Inc./North Lily
0000 Xxxxxxxx Xxxx., Xxxxx #000 Mining Company
Xxxxxxx Xxxxx, XX 00000 0000 Xxxxxxx Xxxxx, Xxxxx #000
(000) 000-0000 Xxxxxx, XX 00000
(000) 000-0000
6.5 Attorney's Fees:
In the event a dispute arises with respect to this agreement, the party
prevailing in such dispute shall be entitled to recover all expenses,
including, without limitation, reasonable attorney's fees and expenses
incurred in ascertaining such parties' rights, in preparing to enforce
or in enforcing such parties' right under this agreement, whether or
not it was necessary for such party to institute suit.
6.6 Complete Agreement:
This Agreement supercedes any and all of the other agreements, either
oral or in writing, between the parties with respect to such subject
matter in any manner whatsoever. Each party to this agreement
acknowledges that no representations, inducements, promises or
agreements, oral or otherwise, have been made by any party, or anyone
herein, and that no other agreement, statement or promise not contained
in this Agreement may be changed or amended only by an amendment in
writing signed by all parties or their respective
successors-in-interest.
6.7 Binding:
This Agreement shall be binding upon and inure to the benefit of the
successor-in-interest, assignees and personal representatives of the
respective parties.
6.8 Unenforceable Terms:
Any provision hereof prohibited by law or unenforceable under the law
of any jurisdiction in which such provision is applicable shall adhere
to such jurisdiction only to be ineffective without affecting any other
provision of this Agreement. To the full extent, however, that such
applicable law may be waived to the end that this Agreement be deemed
to be a valid and binding agreement enforceable in accordance with its
terms, the Parties hereto hereby waive such applicable law knowingly
and understanding the effect of such waiver.
6.9 Execution Assurances:
This Agreement may be executed in several counterparts and when so
executed shall constitute one agreement binding on all the parties,
notwithstanding that all the Parties are not signatory to the original
and same counterpart.
6.10 Further Assurances:
From time to time each party will execute and deliver such further
instruments and will take such other action as any other party may
reasonably request in order to this charge and perform their
obligations and agreement hereunder and to give effect to the
intentions expressed in this agreement.
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6.11 Miscellaneous Provisions:
The various heading and numbers herein and the grouping of provisions
of this agreement in to separate articles and paragraphs are for the
purpose of convenience only and shall be considered a party hereof. The
language in all parts of this agreement shall in all cases by construed
in accordance with its fair meanings as if prepared by all parties to
the agreement and not strictly for or against any of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first written above.
/s/ Xxxxxxx Xxxxxxxxxxxxx /s/ X.X. Xxxxxxxx
--------------------------- --------------------------------
Pinnacle Performance Fund, Inc. Xxxxxxxxxx.Xxx/Xxxxx Lily Co.
Xxxxxxx Xxxxxxxxxxxxx X.X. Xxxxxxxx
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