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EXHIBIT 4.1
CONSULTING AGREEMENT WITH
WINDSOR PARTNERS, INC.
DATED AUGUST 1, 2000
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BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated August 1, 2000 and is entered into by
and between MCHENRY METALS GOLF CORP. (Hereinafter "GLFN" or "CLIENT") and
WINDSOR PARTNERS, INC. (Hereinafter "WPI").
1. CONDITIONS. This Agreement will not take effect, and WPI will have no
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to WPI (either by mail or facsimile
copy). In addition, CLIENT shall be truthful with WPI in regard to any
relevant or material information provided by CLIENT, verbally or otherwise
which refers, relates, or otherwise pertains to the CLIENT's business, this
Agreement or any other relevant transaction. Breach of either of these
conditions shall be considered a material breach and will automatically
grant WPI the right to terminate this Agreement and all moneys, and other
forms of compensation, paid or owing as of the date of termination by WPI
shall be forfeited without further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with WPI
in carrying out the purposes of this Agreement, keep WPI informed of any
developments of importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, WPI will perform the
following services for CLIENT:
2.1 ADVICE AND COUNSEL. WPI will provide advice and counsel regarding CLIENT's
strategic business plans, strategy and negotiations with potential business
strategic partnering, corporate planning and or other general business
consulting needs as expressed by CLIENT.
2.2 MERGERS AND ACQUISITIONS. WPI will provide assistance to CLIENT, as
mutually agreed, in identifying merger and/or acquisition candidates,
assisting in any due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as needed.
2.3 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE. WPI will
participate and assist CLIENT in the due diligence process, where possible,
on all proposed financial transactions affecting CLIENT of which WPI is
notified in writing in advance, including conducting investigation of and
providing advice on the financial, valuation and stock price implications
of the proposed transaction(s).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, WPI will assist and cooperate
with CLIENT in the development, editing and production of such documents as
are reasonably necessary to assist in any transaction covered by this
Agreement. However, this Agreement will not include the preparation or
procuring of legal documents or those documents normally prepared by an
attorney.
2.5 ADDITIONAL DUTIES. CLIENT and WPI shall mutually agree, in writing, for any
additional duties that WPI may provide to CLIENT for compensation paid or
payable by CLIENT under this Agreement. Although there is no requirement to
do so, such additional agreement(s) may be attached hereto and made a part
hereof by written amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
2.6 STANDARD OF PERFORMANCE. WPI shall devote such time and efforts to the
affairs of the CLIENT as is reasonably necessary to render the services
contemplated by this Agreement. Any work or task of WPI provided for herein
which requires CLIENT to provide certain information to assist WPI in
completion of the work shall be excused (without effect upon any obligation
of CLIENT) until such time as CLIENT has fully provided all information and
cooperation necessary for WPI to complete the work. The services of WPI
shall not include the rendering of any legal opinions or the performance of
any work that is in the ordinary purview of a certified public accountant,
or other licensed professional. WPI cannot guarantee results on behalf of
CLIENT, but shall use commercially reasonable efforts in providing the
services listed above. If an interest is communicated to WPI regarding
satisfying all or part of CLIENT's business and
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corporate strategic planning needs, WIP shall notify CLIENT and advise it
as to the source of such interest and any terms and conditions of such
interest.
2.7 NON-GUARANTEE. WPI MAKES NO GUARANTEE THAT WPI WILL BE ABLE TO SUCCESSFULLY
LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN CONSUMMATE A MERGER OR
ACQUISITION TRANSACTION FOR CLIENT, OR TO SUCCESSFULLY COMPLETE SUCH A
TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOR THE PAYMENT OF DEPOSITS TO WPI BY CLIENT
PURSUANT TO FEE AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE
CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING POTENTIAL TIME
FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF CLIENT'S NEEDS ARE
EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES OF THIS AGREEMENT ARE
SPECIFICALLY DISAVOWED.
3. COMPENSATION TO WPI.
3.1 CLIENT will pay for services described herein. The fees shown below (which
summarize those outlined in 3.2, and 3.3 below) shall be payable as
follows:
INITIAL PAYMENT DUE UPON ACCEPTANCE OF THIS AGREEMENT:
160,000 SHARES FREELY TRADING COMMON VOTING STOCK OF GLFN REGISTERED UNDER
S-8;
NOTE: WPI SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY WPI WITHIN 7 DAYS
OF MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, WPI'S
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING
HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE
RECEIPT OF ANY FEES DUE TO WPI UPON EXECUTION OF THIS AGREEMENT ARE NOT
CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER DESCRIBED
WITHIN THIS AGREEMENT.
3.2 FEES FOR MERGER/ACQUISITION. In the event that WPI, assists CLIENT and/or
introduces CLIENT (or a CLIENT affiliate) to any third party, merger
partner(s) or joint venture(s) who then enters into a merger, joint venture
or similar agreement with CLIENT or CLIENT's affiliate, CLIENT hereby
agrees to pay WPI advisory fees pursuant to the following schedule which
are based on the aggregate amount of such merger, joint venture or similar
agreement with CLIENT or CLIENT's affiliate. Advisory fees are deemed
earned and shall be due and payable at the first close of the transaction,
however, in certain circumstances when payment of advisory fees at closing
is not possible, within 24 hours after CLIENT has received the proceeds of
such investment. This provision shall survive this Agreement for a period
of one year after termination or expiration of this Agreement. In other
words, the advisory fee shall be deemed earned and due and payable for any
funding, underwriting, merger, joint venture or similar transaction which
first closes within a year of the termination or expiration of this
Agreement as a result of an introduction as set forth above.
MERGER/ACQUISITION. For a merger/acquisition entered into by CLIENT as
a result of an introduction by WPI during the term of this Agreement,
CLIENT shall pay WPI an aggregate of five percent (5%) of the value of
the first $1,000,000 of the transaction, four percent (4%) of the
value of the second $1,000,000 of the transaction, three percent (3%)
of the value of the third $1,000,000 of the transaction, two percent
(2%) of the value of the fourth $1,000,000 of the value of the
transaction, and one percent (1%) of the value of the fifth $1,000,000
of the transaction and one percent (1%) for the value of all amounts
of the transaction thereafter over $5,000,000 of the value of the
transaction. Such percentage shall be paid to WPI in the same ratio of
cash and/or stock as the transaction. However, for a
merger/acquisition entered into by CLIENT as a result of their own
finding, and in which the CLIENT expressly requires WPI to participate
in a consultancy or advisory capacity, CLIENT shall pay WPI an amount
equal to one percent (1%) of the
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value of the transaction. Notwithstanding the foregoing, for the
specific target candidate of Carbite Golf Inc., the percentage
payable to WPI of the total value of the transaction shall be
1/2-of-one percent (0.5%).
3.3 EXPENSES. CLIENT shall reimburse WPI for reasonable expenses incurred in
performing its duties pursuant to this Agreement (including printing,
postage, express mail, photo reproduction, travel, lodging, and long
distance telephone and facsimile charges); provided, however, that WPI must
receive prior written approval from CLIENT for any expenses over $250. Such
reimbursement shall be payable within 7 seven days after CLIENT's receipt
of WPI invoice for same.
3.4 ADDITIONAL FEES. CLIENT and WPI shall mutually agree upon any additional
fees that CLIENT may pay in the future for services rendered by WPI under
this Agreement. Such additional agreement(s) may, although there is no
requirement to do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
4. INDEMNIFICATION. WPI and the CLIENT agree to indemnify and hold each other
harmless, and each of its officers, directors, employees and shareholders
against any and all liability, loss and costs, expenses or damages,
including but not limited to, any and all expenses whatsoever reasonably
incurred in investigation, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or howsoever caused by
reason of any injury (whether to body, property, personal or business
character or reputation) sustained by any person or to any person or
property, arising out of any act, failure to act, neglect, any untrue or
alleged untrue statement of a material fact or intentional failure to state
a material fact which thereby makes a statement false or misleading, or any
breach of any material representation, warranty or covenant by WPI and
CLIENT or any of its agents, employees, or other representatives. Nothing
herein is intended to nor shall it relieve either party from liability for
its own willful act, omission or negligence. All remedies provided by law,
or in equity shall be cumulative and not in the alternative.
5. CONFIDENTIALITY.
5.1 WPI and CLIENT each agree to keep confidential and provide reasonable
security measures to keep confidential information where release may be
detrimental to their respective business interests. WPI and CLIENT shall
each require their employees, agents, affiliates, other licensees, and
others who will have access to the information through WPI and CLIENT
respectively, to first enter appropriate non-disclosure Agreements
requiring the confidentiality contemplated by this Agreement in perpetuity.
5.2 WPI will not, either during its engagement by the CLIENT pursuant to this
Agreement or at any time thereafter, disclose, use or make known for its or
another's benefit any confidential information, knowledge, or data of the
CLIENT or any of its affiliates in any way acquired or used by WPI during
its engagement by the CLIENT. Confidential information, knowledge or data
of the CLIENT and its affiliates shall not include any information that is,
or becomes generally available to the public other than as a result of a
disclosure by WPI or its representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented only by written agreement of WPI and CLIENT.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either
party hereunder cannot be assigned without the express written consent of
the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of California, without regard to its conflict of law
doctrine. CLIENT and WPI agree that if any action is instituted to enforce
or interpret any provision of this Agreement, the jurisdiction and venue
shall be Orange County, California.
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6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed by a court
of competent jurisdiction, to be invalid or unenforceable, that part shall
be severable from the remainder of the Agreement.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT,
WPI OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR
ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS
AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH
LITIGATION. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED
HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO
SEEK MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY
LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE
ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY
PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO
THE AMERICAN ARBITRATION ASSOCIATION, IN ORANGE COUNTY,
CALIFORNIA WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST
TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL
TAKE PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT
TO RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING
ARBITRATION OR SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF
ANY ARBITRATION FORUM LOCATED IN ORANGE COUNTY, CALIFORNIA, OVER
ANY MATTER WHICH IS THE SUBJECT OF THIS AGREEMENT, THE PREVAILING
PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ITS
LEGAL FEES AND ANY EXPENSES INCURRED IN CONNECTION WITH THE
DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS
RIGHTS TO ARBITRATION AS PROVIDED FOR HEREIN;
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J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL
AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT
AND EXECUTION FOR COLLECTION.
8. TERM/TERMINATION. This Agreement is an agreement for the term of six (6)
months ending January 31, 2001.
9. REGISTRATION OF SHARES. WPI shall have standard piggyback registration
rights (as described in Section 3.2 herein) of all shares issued in
accordance with this Agreement, which are not subject to registration per
Section 3.0 et seq. herein.
10. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby agrees
that WPI may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, natural persons, corporations, limited liability companies,
partnerships, unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or "Opportunities"). CLIENT further
acknowledges and agrees that the identity of the subject Opportunities, and
all other information concerning an Opportunity (including without
limitation, all mailing information, phone and fax numbers, email addresses
and other contact information) introduced hereunder are the property of
WPI, and shall be treated as confidential and proprietary information by
CLIENT, its affiliates, officers, directors, shareholders, employees,
agents, representatives, successors and assigns. CLIENT shall not use such
information, except in the context of any arrangement with WPI in which WPI
is directly and actively involved, and never without WPI's prior written
approval. CLIENT further agrees that neither it nor its employees,
affiliates or assigns, shall enter into, or otherwise arrange (either for
it/him/herself, or any other person or entity) any business relationship,
contact any person regarding such Opportunity, either directly or
indirectly, or any of its affiliates, or accept any compensation or
advantage in relation to such Opportunity except as directly though WPI,
without the prior written approval of WPI. WPI is relying on CLIENT's
assent to these terms and their intent to be bound by the terms by evidence
of their signature. Without CLIENT's signed assent to these terms, WPI
would not introduce any Opportunity or disclose any confidential
information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
MCHENRY METALS GOLF CORP (GLFN)
Print Name: /s/ Mark Bergendahl
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Sign Name: /s/ Mark Bergendahl
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Title: Vice Chairman
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Date: August 9, 2000
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Address:
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WINDSOR PARTNERS, INC. (WPI)
Print Name: Richard H. Walker
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Sign Name: /s/ Richard H. Walker
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Title: President
Date: August 1, 2000
Address: 30872 Hunt Club Drive
San Juan Capistrano, CA 92675
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