Exhibit 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this January 20, 2002 by and between Xxxx X. Xxxx (hereinafter referred to as
"Consultant"), an individual, having his principle mailing address at Xxxx
Xxxxxx Xxx 0000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 and Carcorp USA Corporation
(hereinafter referred to as the "Company") with offices at 0000 XX 00 Xxxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
WITNESSETH
WHEREAS, the Company desires to retain the services of Consultant relating
specifically to strategic planning and business development, management and
operational efficiency and other advisement related to merger and acquisition
advisement and other investment banking services, all in connection with the
going forward operation of its business; and
WHEREAS, Consultant is qualified and willing to provide the Company with the
aforementioned services; and
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
1. APPOINTMENT.
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The Company hereby engages Consultant and Consultant agrees to render services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
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The term of this Consulting Agreement began as of the date of this Agreement,
and shall terminate 180 days hence, unless terminated or extended in accordance
with a valid provision contained herein, or unless extended by a subsequent
agreement between the parties.
3. SERVICES.
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a. The Company is desirous of the Consultant to specifically
engage in advisement with respect to the identification, evaluation,
structuring, negotiating and closing of mergers and acquisitions and advice with
regard to the ongoing managing and operating of such acquisitions upon
consummation thereof. Although the Consultant has offered to work on such
efforts for compensation to based upon his success with respect to said efforts,
the Company believed it was in it's best interest to retain the services of the
Consultant for a specific term.
b. Additionally, during the term of this Agreement, Consultant shall
provide advice to undertake for and consult with the Company concerning
management of sales and marketing resources, consulting, strategic planning,
corporate organization and structure, financial matters in connection with the
operation of the businesses of the Company, expansion of services, mergers and
acquisitions and other business opportunities. Consultant agrees to provide on a
timely basis the following enumerated services plus any additional services
contemplated thereby:
(i) The implementation of short-range and long-term strategic planning
to fully develop and enhance the Company's assets, resources, products and
services;
(ii) The implementation of a marketing program to enable the Company to
broaden the markets for its services and promote the image of the Company and
its products and services;
(iii) The identification, evaluation, structuring, negotiating and
closing of joint ventures, and strategic alliances and advice with regard to the
ongoing management of such efforts;
(iv) Advice and recommendations regarding corporate financing including
the structure, terms and content of existing bank loans, institutional loans,
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
(v) Within 30 days of the company becoming a "trading" company listed
on the over-the-counter market, Xx. Xxxx shall complete and file an S-8
Registration Statement to be filed with the Securities Exchange Commission (the
"SEC") for the Company's common shares to be used as compensation for this and
other advisory and consulting agreements.
4. DUTIES OF THE COMPANY.
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The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all filings with all federal and state
securities agencies; with all data and information supplied by any financial
analyst, and with all brochures or other sales materials relating to its
products or services.
5. COMPENSATION.
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Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
a. Consultant shall receive, within 3 days of the effectiveness of the
S-8 Registration Statement (referenced in Section 3(b)(v) above), 100,000 shares
of the Company's common stock. Said non-option shares shall be freely tradable
and shall be void of any and all encumbrances.
b. Within 3 days of the effectiveness of the S-8 Registration Statement
(referenced in Section 3(b)(v) above), the Company shall execute a written
request to its transfer agent to prepare and deliver to Consultant, or it's
agent, one common stock certificates for (1) 100,000 shares of freely tradable,
non-legend, shares of the Company's common stock.
c. The Compensation outlined in Section 5 shall be conveyed through an
effective S-8 registration of common shares (referenced in Section 3(b)(v)
above). Company agrees to exercise it's Best Efforts to provide Consultant, it's
agent or any other party charged to file the subject S-8 Registration Statement
with any and all information, documentation and related assistance required to
make the S-8 Registration Statement effective.
5.5 COSTS AND EXPENSES
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a. Miscellaneous Costs.
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Subject to the prior approval of the Company, Consultant in providing the
foregoing services, shall not be responsible for any out-of-pocket costs,
including, without limitation, travel, lodging, telephone, postage and Federal
Express charges. Consultant shall provide the Company with a detailed Accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
6. REPRESENTATION AND INDEMNIFICATION.
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a. Company.
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Company agrees to indemnify, defend, and shall hold harmless Consultant
and/or his agents, and shall defend any action brought against said parties
with respect to any claim, demand cause of action, debt or liability, including
reasonable attorneys' fees to the extent that such action is based upon a claim
that: (i) is true, (ii) would constitute a breach of any of Company
representation, warranty, or agreement hereunder, or (iii) arises out of the
negligence or willful misconduct of Company.
b. Consultant.
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Consultant agrees to indemnify, defend, and shall hold harmless Company,
Its directors, employees and agents, and defend any action brought against
same with respect to any claim, demand, cause of action, or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of the
gross negligence or willful misconduct of Consultant.
c. Notice.
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In claiming indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim, which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense, and
all negotiations relative to the settlement of any such claim. Any settlement
intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6.5 COMPLIANCE WITH SECURITIES LAWS.
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The Company understands that any and all compensation outlined in Section 5
shall be paid solely and exclusively as consideration for the aforementioned
consulting efforts made by Consultant on behalf of the Company as an independent
contractor. Any monies, if any, transferred to Company by Consultant to pay for
the exercise of stock options herein is not made with the intent to raise
capital or to provide the Company with capital. Consultant has been engaged to
provide the Company with traditional business, management and financial
consulting, and related business services. Consultant's engagement does not
involve the promotion or marketing of the Company's securities, nor does it
involve raising "new" money for the Company.
7. MISCELLANEOUS.
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a. Termination.
Subsequent to and no less than 30 days after the execution of this
Agreement, this Agreement may be terminated by either Party upon written notice
to the other Party for any reason and shall be effective five (5) business days
from the date of such notice. Termination of this Agreement shall cause
Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 of this
Agreement.
b. Modification
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This Consulting Agreement sets forth the entire understanding of the
Parties with respect to the subject matter hereof. This Consulting Agreement may
be amended only in writing signed by both Parties.
c. Notices
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Any notice required or permitted to be given hereunder shall be in writing
and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
d. Waiver
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Any waiver by either Party of a breach of any provision of this Consulting
Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
e. Assignment.
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The Options under this Agreement are assignable at the discretion of the
Consultant.
f. Severability
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If any provision of this Consulting Agreement is invalid, illegal, or
unenforceable, the balance of this Consulting Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
g. Counterparts; Facsimile Signatures.
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This Agreement may be executed in any number of counterparts, each of which
may be executed by less than all of the parties to this Agreement, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one and the same agreement. The
parties shall be entitled to rely upon and enforce a facsimile of any authorized
signature as if it were the original.
h. Disagreements.
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Any dispute or other disagreement arising from or out of this Consulting
Agreement shall be submitted to arbitration under the rules of the American
Arbitration Association and the decision of the arbiter(s) shall be Enforceable
in any court having jurisdiction thereof. Arbitration shall occur only in San
Diego, CA. The interpretation and the enforcement of this Agreement shall be
governed by California Law as applied to residents of the State of California
relating to contracts executed in and to be performed solely within the State
of California. In the event any dispute is arbitrated, the prevailing Party
(as determined by the arbiter(s)) shall be entitled to recover that Party's
reasonable attorney's fees incurred (as determined by the arbiter(s)).
i. Execution of Agreement
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Company has requisite corporate power and authority to enter into
And carry out the terms and conditions of this Agreement, as well as all
transactions contemplated hereunder. All corporate proceedings have been taken
and all corporate authorizations and approvals have been secured which are
necessary to authorize the execution, delivery and performance by Company of
this Agreement. This Agreement has been duly and validly executed and delivered
by Company and constitutes the valid and binding obligations of Company,
enforceable in accordance with the respective terms.
j. Effect of Agreement.
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The consummation by Company of the transactions herein contemplated,
including the execution, delivery and consummation of this Agreement, will
comply with all applicable law and will not conflict with or result in a breach
of any of the unwaived terms of any agreement or instrument to which Company is
bound, or constitute a default thereunder.
k. Consummation
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Upon the execution and delivery of this Agreement, Company will have
all requisite power to enter into this Agreement and to consummate the
transactions contemplated hereunder. Thereafter, this Agreement, and the other
agreements referred to herein, will constitute the valid and binding obligations
of Company, and will be enforceable in accordance with their respective terms.
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
CONSULTANT
/s/Xxxxxxx Xxxxx /s/Xxxx X. Xxxx
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Xxxxxxx Xxxxx Xxxx X. Xxxx
CEO
