EXHIBIT 10.4
----------------
CONSULTING AGREEMENT
----------------
Consulting Agreement, made as of December 6, 1999 between ▇▇▇▇▇▇▇
International Inc., a Delaware corporation (the "Corporation"), and Ashbyrne
Consultants Inc., a Canadian corporation (the "Consultant").
Whereas, the Corporation wishes to assure itself of the services of the
Consultant for the period provided in this Agreement, and the Consultant is
willing to provide its services to the Corporation for the said period under the
terms and conditions hereinafter provided.
Now, Therefore, Witnesseth, that for and in consideration of the premises
and of the mutual promises and covenants herein contained, the parties hereto
agree as follows:
1. Engagement
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the Corporation in
connection with the operation of the business and affairs of the Corporation,
for the two year period commencing on December 6, 1999 and ending on December 5,
2001. The two year period during which Consultant shall serve in such capacity
shall be deemed the "Engagement Period" and shall hereinafter be referred to as
such.
2. Services
2.1 The Consultant shall render to the Corporation the services described
below, with respect to which the Consultant shall apply its best efforts and its
personnel shall devote such time as shall be reasonably necessary to perform
Consultant's duties hereunder and advance the interests of the Corporation. The
Consultant shall report to the chief executive officer of the Corporation and to
such persons as the chief executive officer shall direct.
2.2 The services to be rendered by the Consultant to the Corporation shall
consist of the following:
157
2.2.1 Corporate Planning
a. Develop an in-depth familiarization with the Corporation's
business objectives and bring to its attention potential or
actual opportunities which meet those objectives or logical
extensions thereof.
b. Assist the Corporation with the preparation and implementation
of a business plan.
c. Alert the Corporation to new or emerging high potential forms
of marketing and distribution of its products which could
either be acquired or developed internally.
d. Comment on the Corporation's commercial development including
such factors as its position in its competitive environment,
its financial performance as compared to that of its
competition, financing impacts of its alternative strategies,
its maximization of its operational viability, etc.
e. Identify and negotiate arrangements with United States
securities counsel and auditors respecting a proposed public
offering of the Corporation's shares.
f. Identify prospective suitable merger, acquisition, or venture
partners for the Corporation, perform appropriate diligence
investigations with respect thereto, advise the Corporation
with respect to the desirability of pursuing such prospects,
and assist the Corporation in any negotiations which may ensue
therefrom.
2.2.2 Business Strategies
a. Evaluate business strategies and recommend changes where
appropriate.
b. Critically evaluate the Corporation's performance in view of
its corporate planning and business objectives.
2.2.3 Commercial Financing
a. Review and comment upon the Corporation's annual and quarterly
financial statements and reports and other financial
disclosures and publications.
158
b. Develop, in conjunction with the Corporation's financial
personnel and advisers, periodic projections of its cash needs
commensurate with its projected growth in operations and
revenues.
c. Attempt to arrange for commercial financing to meet the
Corporation's projected cash needs by way of accounts
receivable financing and/or factoring, purchase order
financing, institutional commercial financing (business
finance plans, bank letters of credit [standby], lines of
credit, and other institutional financial accommodation),
governmental financing (US Small Business Administration,
State Economic and Authorities, etc.).
2.2.4 Corporate Management
a. Assist the corporation with the identification and procurement
of a qualified chief financial officer for the Corporation,
which may involve for a period of up to one year, the
employment of ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇, a principal of the Consultant,
in such capacity. Any such employment of ▇▇▇▇▇▇▇ ▇▇▇ shall not
require the Corporation to pay a salary to ▇▇. ▇▇▇.
3. Compensation
3.1 In consideration of the Consultant's having entered into this
agreement, the Corporation agrees to sell to the Consultant 2,000,000 shares of
common stock of the Corporation, $.001 par value (the "Consulting Stock"). The
price shall be at the per share rate of the par value of the Consulting Stock.
The said price shall be paid and the certificates for the Consulting Stock shall
be delivered as soon as possible, and in all events promptly, following the date
hereof. The terms of the Consulting Stock shall be as follows:
a. The Consulting Stock shall be issued to such person or persons
as directed by the Consultant.
b. The Consultant warrants and represents that it is
knowledgeable concerning the business, financial condition and
prospects of the Corporation and that it is acquiring the
Consulting Stock solely for the purposes of investment and
without a view toward the resale or distribution thereof.
c. The Corporation warrants and represents that the Consulting
Stock, at the time of its issuance by the Corporation to the
holders thereof, will be duly and validly issued, fully paid
and non-assessable.
3.2 The Corporation shall reimburse Consultant for those expenses,
incurred in connection with its engagement by the Corporation, which shall have
been previously approved by the Corporation in writing, which approval shall not
be unreasonably withheld.
159
4. Secrets
Consultant agrees that any trade secrets or any other like information of
value relating to the business and/or field of interest of the Corporation or
any of its affiliates, or of any corporation or other legal entity in which the
Corporation has an ownership interest of more than twenty-five percent (25%),
including but not limited to, information relating to inventions, disclosures,
processes, systems, methods, formulae, patents, patent applications, machinery,
materials, research activities and plans, costs or production, contract forms,
prices, volume of sales, promotional methods, list of names or classes of
customers, which it has heretofore acquired during its engagement by the
Corporation or any of its affiliates or which it may hereafter acquire during
the Engagement Period as the result of any disclosures to it, or in any other
way, shall be regarded as held by the Consultant and its personnel in a
fiduciary capacity solely for the benefit of the Corporation, its successors or
assigns, and shall not at any time, either during the term of this Agreement or
thereafter, be disclosed, divulged, furnished, or made accessible by the
Consultant and its personnel to anyone, or be otherwise used by them, except in
the regular course of business of the Corporation or its affiliates. Information
shall for the purposes of this Agreement be considered to be secret if not known
by the trade generally, even though such information may be disclosed to one or
more third parties pursuant to distribution agreements, joint venture agreements
and other agreements entered into by the Corporation or any of its affiliates.
5. Assignment
This Agreement may be assigned by the Corporation as part of the sale of
substantially all of its business, provided, however, that the purchaser shall
expressly assume all obligations of the Corporation under this Agreement.
Further, this Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation under this Agreement, and provided further that the Corporation
shall then fully guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this Agreement is so assigned, all the terms and
conditions of this Agreement shall obtain between assignee and himself with the
same force and effect as if said Agreement had been made with such assignee in
the first instance. This Agreement shall not be assigned by the Consultant
without the express written consent of the Corporation.
6. Survival of Certain Agreements
160
The covenants and agreements set forth in Article 4 and Article 5 shall
survive the expiration of the Engagement Period and shall survive termination of
this Agreement and remain in full force and effect regardless of the cause of
such termination.
7. Notices
7.1 All notices to be given hereunder shall be delivered by hand,
telecopier, or recognized courier service to the party to whom such notice is
required or permitted to be given hereunder. Any notice properly delivered to
the address designated herein for delivery shall be deemed to have been received
by the party to whom it is made notwithstanding the refusal of such party or
other person to accept such delivery.
7.2 Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
▇▇▇▇▇▇▇ International Inc.
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
7.3 Any notice to Consultant shall be addressed as follows:
Ashbyrne Consultants Inc.
▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
7.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
8. Applicable Law
This Agreement shall be interpreted and enforced in accordance with the
laws of Delaware and all disputes arising hereunder shall be settled by
arbitration before the American Arbitration Association.
161
9. Interpretation
Whenever possible, each Article of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
Article is unenforceable or invalid under such law, such Article shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remainder of such Article and the balance of this Agreement shall in such event
continue to be binding and in full force and effect.
In Witness Whereof, the parties hereto have executed the above Agreement
as of the day and year first above written.
▇▇▇▇▇▇▇ INTERNATIONAL INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
ASHBYRNE CONSULTANTS INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇, President
162
