Exhibit 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and
entered into as of June 26, 2000, by and among Algiers Resources, Inc.; Balstron
Corporation; Daliprint, Inc.; Hartscup Corporation; Mayall Partners, Inc.;
PSLRA, Incorporated; Regal Acquisitions, Inc.; Spacial Corporation; Voyer One,
Inc. and Voyer Two, Inc., each a Delaware corporation (collectively, the
"Companies" and each, individually, a "Company") on the one hand, and CMI
("Consultant") on the other hand.
In consideration of the mutual representations, warranties,
covenants and promises contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consulting Services. For a period of one (1) year from the
date hereof, at such times as reasonably requested by any of the Companies,
Consultant shall make its personnel available by telephone or in person to
advise and consult with the Company regarding the following services: business
due diligence review in connection with the analysis of acquisition targets
and/or potential strategic business partnering arrangements, which services
shall include, without limitation, review and analysis of financial statements,
material contracts, operating agreements, permits and licenses and any other
such documents material to decisions regarding business combinations and
advising the Company of issues related thereto.
2. Compensation. As consideration for the services to be
provided hereunder to any of the Companies, each Company shall compensate
Consultant with payment in the form of warrants (the "Warrants") exercisable for
150,000 shares of Company common stock, $0.001 par value (the "Company Common
Stock"). The Company shall issue the Warrants, exercisable at a price of $0.01
per share, upon Consultant's execution of this Agreement; provided, however,
that the Warrants shall not vest until the services to be provided hereunder
have been performed. Consultant shall provide a list of its personnel who shall
provide services to the Company, together with the amount of Warrants to be
allocated to each person, and the Company shall issue the Warrants to each
person in the amount specified by Consultant. None of the Companies shall be
under any obligation to transfer the Warrants to undisclosed persons.
3. Form S-8 Registration Statement. Consultant and each
Company acknowledge their mutual intention to register the shares issuable under
the Warrants pursuant to a Registration Statement on Form S-8. If for any reason
the shares issuable under the Warrants cannot be registered, the Company shall
issue no Warrants and this Agreement shall be null and void without further
obligation of the Company or the Holder.
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4. Independent Contractor. Consultant shall, at all times,
render services pursuant to this Agreement as an independent contractor and not
as an employee, agent or servant of Company, nor shall Consultant or any of its
personnel be deemed, by reason of this Agreement or the services performed
pursuant hereto, to be an employee of Company for purposes of withholding,
employee payroll taxes, contributions, pensions or otherwise.
5. Representations and Warranties. Consultant represents and
warrants that:
a. the services rendered hereunder shall at no time involve
the following:
(i) acting as a broker, dealer or person who finds
investors for the Company;
(ii) providing consulting services involving investor
relations or shareholder communications;
(iii) arranging or effecting mergers that take private
companies public;
(iv) rendering services that directly or indirectly
promote or cmaintain a market for securities;
(v) arranging financing that involves any securities
issuance, whether equity or debt;
(vi) providing services that are primarily
capital-raising or promotional in nature;
(vii) auditing the Company's financial statements;
(viii) preparing or circulating a report or proxy
statement required by the Securities Exchange Act of 1934,
as amended, that is part of a promotional scheme that
violates federal securities laws;
(ix) serving as counsel to the Company, its
underwriters or any participating broker-dealer in a
securities offering where the Company is the issuer; or
(x) controlling or directing the resale of the Company
Common Stock received hereunder in the public market or
directly or indirectly receiving a percentage of the
proceeds from such resales.
b. neither Consultant nor any of Consultant's personnel has
at any time in its or his history, respectively, been subject to
any of the following:
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(i) having a petition under the Federal bankruptcy laws
or any state insolvency law filed by or against, or a
receiver, fiscal agent or similar officer appointed by a
court for the business or property of:
(a) Consultant or any of Consultant's personnel,
(b) any partnership in which Consultant or any of
Consultant's personnel was a general partner at or within
two years before such event, or
(c) any corporation or business association of which
Consultant or any of Consultant's personnel was an executive
officer at or within two years before such event;
(ii) being convicted in a criminal proceeding, or being
the named subject to a criminal proceeding which is
presently pending;
(iii) being the subject of any court order, judgment or
decree, not subsequently reversed, suspended or vacated,
which permanently or temporarily enjoined Consultant or any
of Consultant's personnel or otherwise limited Consultant or
any of Consultant's personnel from any of the following
activities:
(a) acting as a futures commission merchant,
introducing broker, commodity trading advisor, commodity
pool operator, floor broker, leveraged transaction merchant,
any other person regulated by the Commodity Futures Trading
Commission, or an associated person of any of the foregoing,
or as an investment adviser, underwriter, broker or dealer
in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan
association or insurance company, or engaging in or
continuing any conduct or practice in connection with such
activity;
(b) engaging in any type of business practice;
(c) engaging in any activity in connection with the
purchase or sale of any security or commodity or in
connection with any violation of Federal or state securities
laws or Federal commodities laws.
(iv) being the subject of any order, judgment or
decree, not subsequently reversed, suspended or vacated, of
any Federal or state authority barring, suspending or
otherwise limiting for more than 60 days Consultant's or any
of Consultant's personnel's right to engage in any of the
activities described in paragraph (iii)(a) above or
Consultant's or any of Consultant's personnel's right to be
associated with persons engaged in any such activities;
(v) being found by a court in a civil action or by the
Securities and Exchange Commission to have violated any
Federal or state securities law and such judgment or finding
not having been subsequently reversed, suspended or vacated;
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(vi) being found by a court in a civil action or by the
Commodity Futures Trading Commission to have violated any
Federal commodities law and such judgment or finding not
having been subsequently reversed, suspended or vacated;
(vii) being the object of any claim alleging any fraud,
breach of fiduciary duty, illegal conduct or gross
negligence made or threatened against
(a) Consultant or any of Consultant's personnel,
(b) any partnership in which Consultant or any of
Consultant's personnel was a general partner at or within
two years before such event, or
(c) any corporation or business association of which
Consultant or any of Consultant's personnel was an executive
officer at or within two years before such event;
(viii) being the subject of a pending indictment or a
conviction of any crime or offense involving the purchase or
sale of a security or arising out of Consultant's or any of
Consultant's personnel's conduct as an underwriter, broker,
dealer or investment advisor;
(ix) being the subject of a pending proceeding for or
the entry of a temporary or permanent injunction enjoining
or restraining Consultant or any of Consultant's personnel
with respect to conduct or practices in connection with the
purchase or sale of securities, or involving the making of a
false filing with the Securities and Exchange Commission or
any state, or arising out of Consultant's or any of
Consultant's personnel's conduct as an underwriter, broker,
dealer or investment advisor;
(x) being the subject of a Securities and Exchange
Commission administrative order still in effect imposing
sanctions against Consultant or any of Consultant's
personnel in connection with the SEC's authority to regulate
the activities of broker-dealers and investment advisers or
the naming of those persons as the cause of such an order;
(xi) being the subject of a postal fraud order or to a
restraining order or preliminary injunction relating to
postal fraud orders;
(xii) having been suspended or expelled from membership
in a Canadian or United States securities exchange or from a
Canadian or United States association of securities dealers
because of conduct inconsistent with just and equitable
principles of trade; or
(xiii) being the subject of any currently effective
state administrative enforcement order by any state
administrator in which fraud or deceit, including but not
limited to misrepresentations, was found.
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5. Termination. This Agreement shall automatically terminate
upon the occurrence of any of the following:
a. a breach by Consultant of any representation or
warranty contained in Section 4;
b. a breach of any other Section of this agreement by
Consultant; or
c. the commencement by Consultant of any legal action
against any of the Companies or any of their affiliates,
officers, directors or employees.
Upon the occurrence of any such event, any Warrants issued to Consultant's
personnel shall be immediately terminated and no additional compensation shall
thereafter be payable to Consultant under this Agreement.
6. Miscellaneous.
(a) Assignment. Consultant may not assign any of its rights
or obligations hereunder, and no personnel of Consultant may
assign their Warrants other than in a free market transaction or
an exempt transaction, without the Company's prior written
consent, which the Company may withhold in its sole and absolute
discretion. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective heirs, administrators, executors, successors and
assigns. If the Securities and Exchange Commission or any other
securities regulatory agency objects to any transfer or such
transfer impedes the ability of the Company to complete a 15c2-11
filing, such transfer shall be null and void.
(b) Notice. All notices, demands or other communications to
be given to any party hereunder shall be in writing. A notice
shall be validly given or made to another party if served either
personally or if deposited in the United States mail, certified
or registered, return receipt requested, or if transmitted by
telegraph, telecopy or other electronic written transmission or
if sent by overnight courier service, and if addressed to the
applicable party as set forth at the end of this Agreement. If
such notice, demand or other communication is served personally,
service shall be conclusively deemed made at the time of such
personal service. If such notice, demand or other communication
is given by mail, service shall be conclusively deemed made
seventy-two (72) hours after the deposit thereof in the United
States mail. If such notice, demand or other communication is
given by overnight courier, or electronic transmission, service
shall be conclusively deemed made at the time of confirmation of
delivery thereof. Any party may change its address for the
purpose of receiving notices, demands and other communications as
herein provided, by a written notice given in the aforesaid
manner.
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(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California,
without regard to conflicts of law principles.
(d) Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties.
(e) Waivers. No waiver of compliance with any provision of
this Agreement shall be binding unless executed in writing by the
party making the waiver. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall
such waiver constitute a continuing waiver.
(f) Amendments. Any amendment to this Agreement shall be in
writing and signed by the parties hereto.
(g) Invalidity. In the event that any one or more of the
provisions contained in this Agreement, shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, then
to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other
provision of this Agreement.
(h) Titles. The titles, captions or headings of the Sections
herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or
interpretation of this Agreement.
(i) Multiple Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
(j) Income Tax Consequences. Consultant acknowledges that
the Companies have not advised Consultant regarding the tax
implications of this Agreement. Each of the parties hereto has
obtained or will obtain his or its own tax advice with respect to
the transactions contemplated hereby.
[signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the day and year first above written.
ALGIERS RESOURCES, INC. CONSULTANT:
a Delaware corporation
CMI
By: By:
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James A. Prestiano, President Gerry L. Martin, President
and Sole Proprietor
BALSTRON CORPORATION, Address:
a Delaware corporation 2102 Business Center Drive,
Suite 130
Irvine, California 92612
Fax Number: (949) 261-5833
By: Telephone: (949) 253-4675
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James A. Prestiano, President
DALIPRINT, INC.,
a Delaware corporation
By:
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James A. Prestiano, President
HARTSCUP CORPORATION,
a Delaware corporation
By:
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James A. Prestiano, President
MAYALL PARTNERS, INC.,
a Delaware corporation
By:
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James A. Prestiano, President
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PSLRA, INCORPORATED,
a Delaware corporation
By:
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James A. Prestiano, President
REGAL ACQUISITIONS, INC.,
a Delaware corporation
By:
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James A. Prestiano, President
SPACIAL CORPORATION,
a Delaware corporation
By:
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James A. Prestiano, President
VOYER ONE, INC.,
a Delaware corporation
By:
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James A. Prestiano, President
VOYER TWO, INC.,
a Delaware corporation
By:
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James A. Prestiano, President
Address:
317 Madison Avenue, Suite 2310
New York, New York 10017
Fax Number: (212) 949-6241
Telephone: (212) 949-9696
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