EXHIBIT 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this
27th date of September, 1996, by and among Xxxxxx X. Xxxxx ("Consultant") with
offices at 000 Xxxxx Xxxx, Xxxx Xxx, Xxxxxxx 00000 and Heng Fai China
Industries, Inc., a Delaware corporation ("HFCI"), with corporate offices at 000
Xxxx Xxxxxxx Xx., Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X00 0X0.
WHEREAS, HFCI desires to engage Consultant to perform certain services
including public relations services on its behalf and to advise HFCI on certain
business opportunities; and
WHEREAS, Consultant has represented that it has the expertise to
perform those certain services which will enhance the growth and value of HFCI;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereto agree as follows;
1. Representations of HFCI. HFCI represents and warrants that:
(a) HFCI has the full power and authority to execute and deliver this
Agreement, and to perform all of its obligations herein.
(b) All news releases or other publicity about HFCI will be coordinated
with the Consultant and will be issued in accordance with the legal
requirements of a public company.
(c) HFCI shall approve or disapprove the issuance of all press releases
and any other material representations about HFCI suggested by
Consultant.
(d) The common stock of HFCI (the "Shares") to be issued to Consultant as
compensation shall be properly authorized, issued and registered under
the Securities Act of 1933, on a Form S-8 registration statement or
other appropriate form. The Consultant shall not engage in any direct
or indirect capital raising activities on behalf of HFCI and/or its
affiliates.
2. Representations of Consultant. Consultant represents and warrants that:
(a) Consultant has the full power and authority to execute and deliver
this Agreement, and to perform all of his obligations herein.
(b) Consultant shall limit his representations about HFCI to facts
disclosed by HFCI to Consultant.
3. Services to be Performed. Consultant agrees to provide the following
services on behalf of HFCI for one calendar year from the date this
Agreement is signed:
(a) Consultant shall assist HFCI in its efforts to open channels of
distribution for HCFI's product throughout the world;
(b) Consultant shall provide input on HFCI's marketing and sales plans and
materials;
(c) Consultant shall review, advise and have input on HFCI's distribution
agreements.
(d) Consultant shall provide advice and assistance to HFCI with regard to
public relations, mergers, acquisitions and other business
opportunities;
(e) Consultant shall provide public relations services to HFCI and shall
advise HFCI regarding press releases and communications with the
investment community, including mutual funds, money managers,
investors and brokerage firms;
(f) Consultant shall review and upon HFCI's request, release all press
releases and public announcements in coordination with HFCI and HFCI's
legal counsel;
(g) Consultant shall, subject to HFCI's directions, coordinate press
conferences with the general media, newspapers, trade publications,
magazines, financial news letters, investment advisory reports, wire
services such as Dow Xxxxx, Reuters, and Bloomberg, and financial
television and radio programs; and
(h) Consultant shall serve as a non-exclusive spokesperson for HFCI to the
investment community.
4. Term of this Agreement. This Agreement shall be binding and in effect for
one calendar year from the date this Agreement is signed.
5. Compensation.
(a) Base Compensation. As compensation for Consultant's services, HFCI
shall transfer to Consultant 300,000 shares of HFCI common stock (the
"Shares"). These Shares shall be delivered to Consultant
simultaneously with the execution of this Agreement. HFCI shall
simultaneously undertake to register such Shares under the Securities
Act of 1933 on Form S-8 or any other available forms, at HFCI's sole
cost and expense. On the date of this Agreement, shares of HFCI are
quoted at a bid price of $1.0625 on the Bulletin Board of the National
Association of Securities Dealers, Inc.
2
(b) Bonus Compensation. The Board of Directors of HFCI, in its sole
discretion, shall, from time to time, review the activities of
Consultant with a view towards bonus compensation which may be awarded
such compensation may take the form of cash, common stock or other
property, and shall be commensurate with the services rendered by
Consultant on behalf of HFCI and the value thereby added to HFCI and
to its stockholders.
6. Expenses. Consultant shall be responsible during the entire term of this
Agreement for all of his own expenses incurred in connection with this
Agreement. HFCI shall not reimburse Consultant for any out-of-pocket
expenses incurred by Consultant in the performance of this Agreement and
its activities for HFCI.
7. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and personally delivered or sent by registered or
certified mail to the following addressees:
If to HFCI: Heng Fai China Industries, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxxxx & Cherris, P.C.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If to Consultant: Xxxxxx X. Xxxxx
000 Xxxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
Fax; (000) 000-0000
Copy to: Xxxxxx X. Xxxxxxx, Esquire
Barretto Xxxxxxx & Ruta, P.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Provided, however, that either party hereto may, from time to time give to the
other party written notice, in the manner provided herein, of some other
address, to which communications to such party shall be sent, in which event
notices to such party shall be personally delivered or sent by
3
registered or certified mail to such address. Notice shall be deemed effectively
give hereunder when personally delivered or deposited in the United States mail
postage prepaid, registered or certified, return receipt requested, or
transmittal by overnight receipted courier as the case may be.
8. Legal Fees. Subject to the rights of indemnification and release contained
herein, in the event of any legal action or proceeding instituted with
respect to this Agreement, the party prevailing in such action or
proceeding shall be entitled to collect from the non-prevailing in such
action or proceeding shall be entitled to collect from the non-prevailing
party reasonable attorney fees, paralegal fees, law clerk fees and other
legal costs and expenses, whether incurred at or before trial, and whether
incurred at the trial level or in any appellate proceeding.
9. Binding Effect, Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective personal
representatives, heirs, spouses, beneficiaries, successors and permitted
assigns. Neither party to this Agreement may assign such party's rights or
obligations hereunder without the prior written consent of the other party.
10. Complete Assignment. This Agreement constitutes the complete understanding
between the parties with respect to the subject matter hereof. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the matters covered herein and supersedes all prior or
contemporaneous agreements, negotiations, representations or discussions
with respect to such subject matter. This Agreement may not be amended or
modified except by a written instrument executed by the parties hereto.
11. Governing Law. This Agreement and performance hereunder shall be governed
by and construed in accordance with the laws of the State of Florida. In
the event of any legal or equitable action arising under this Agreement,
the parties hereto hereby agree that the courts of Orange County, in the
State of Florida shall have sole and exclusive jurisdiction and venue over
any such action and hereby consent to such jurisdiction.
12. Further Actions. Each party to this Agreement shall take such further
actions to execute, file, record, publish and deliver such additional
certificates, instruments, agreements and other documents as the other
party may from time to time, reasonably request in order to effectuate the
transfer contemplated herein, or otherwise to accomplish the purposes of
this Agreement.
13. Waiver. No waiver of any breach of any term or condition of this Agreement
shall be deemed to be a waiver of any subsequent breach of any term or
condition of a like or different nature.
14. Severability. If any provision of this Agreement shall be held invalid or
unenforceable, such validity or unenforceability shall not, if possible,
affect the validity or enforceability
4
of any other provision of this Agreement, and this Agreement shall, if
possible, be construed and enforced in all respects are if such invalid or
unenforceable provision had not been contained herein.
15. Draftsmanship. The fact that one of the parties may have drafted or
structured any provision hereof shall not be considered in construing the
particular provision either in favor of, or against, such party.
16. Counterparts. This Agreement may be executed simultaneously in several
counterparts each of which shall be deemed an original, but all of which
shall only constitute one instrument. Facsimile signatures are acceptable.
IN WITNESS WHEREOF, each of the parties having agreed to the above
mentioned terms and conditions have hereunder set their hands and seals as of
this 27th day of September, 1996.
XXXXXX X. XXXXX - CONSULTANT
By: /s/ Xxxxxx X. Xxxxx 10/8/96
-------------------------------
Xxxxxx X. Xxxxx
HENG FAI CHINA INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
10/8/96
