1
EXHIBIT 4.(a)
CONSULTING AGREEMENT
AGREEMENT made this 8th day of October, 1998, by and between Fontenoy
Investments #71, LTD, a corporation having its principal place of business at
00-00 Xxxxx Xxxx, Xxxxxxx, Xxxx xx Xxx, Xxxxxxx IM991TT, hereinafter referred to
as the "Consultant", and Enhanced Services Company, Inc., a corporation having
its principal place of business at 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 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 European marketing plan and
advise the Company as to Consultant's suggested changes.
1.2 Consultant will make all necessary arrangements at the Company's
sole cost and expense to introduce the Company to appropriate
financial consultants, fund managers, media personnel and other
members of the financial community, as well as to public relations
firms and media sources, with a goal toward enhancing the financial
community's knowledge, information and awareness of the Company and
its operations.
1.3 Consultant will also use its best efforts to identify and arrange
for meetings with investors and brokerage firms in Europe who may
be interested in the Company.
2. COMPENSATION AND EXPENSES
2.1 Contractor has agreed to accept 300,000 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 Three (3) years
commencing on the day of date of execution of this Agreement and
terminating Three (3) years thereafter, unless renewed or extended
in writing by the parties Thirty (30) days' prior to its
termination.
3.2 This Agreement may not be terminated, except as provided herein.
1
2
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 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.
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.
2
3
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.
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 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax No. (000) 000-0000
3
4
With a copy to: Enhanced Services Company, Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Fax No. (000) 000-0000
If to Client: Fontenoy Investments #71, Ltd.
00-00 Xxxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
Xxxxxxx XX000XX
Attn: Xxxxxx Xxxxx
Fax No. 000 000 000 000 000
12. WAIVER AND DELAY
12.1 No waiver by either party of any breach or series of breaches 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 incur 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.
4
5
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
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: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
FONTENOY INVESTMENTS #71, LTD.
By: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
5
