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EXHIBIT 4.5
WOODBRIDGE CORPORATE DEVELOPMENT AGREEMENT, AS AMENDED
WOODBRIDGE & ASSOCIATES, INC.
CORPORATE DEVELOPMENT AGREEMENT
This Agreement (the "Agreement") is entered into as of this 24 day of
June, 1996, by and between Woodbridge & Associates, Inc., a California
corporation ("WA"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Pacific International Enterprises, a
Nevada corporation and Crush Innovative Sports Systems, Inc., a California
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (collectively, with its affiliates, the
"Company").
WHEREAS, Company is a public company which is required to file periodic
and other reports under section 13 or 15(d) of the Securities Exchange Act of
1934 and envisions that it will need the services of corporate development
activities of WA; and
WHEREAS, Company desires to engage WA to perform corporate development
services on behalf of Company; and
WHEREAS, WA has the ability and knowledge necessary for the performance of
such services; and
WHEREAS, WA and Company desire, pursuant to the terms of this Agreement;
to set forth the terms and conditions pursuant to which WA will perform
corporate development services on behalf of Company; and
WHEREAS, as used herein, "Applicable Date" means July 1, 1996 if Agreement
does not terminate this Agreement as provided in Section 1.2.7.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other good and adequate consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
SCOPE OF SERVICES
1.1 WA agrees to perform for the Company the corporate development
services describe as follows:
1.1.1. Outside Professionals. WA will advise and assist in the
search and selection of accountants, legal counsel, Investment
Bankers and other outside professional consultants. Company
agrees to meet and retain such professionals, provided that
they are agreed upon by the company.
1.1.2. Board of Directors. WA will assist with finding and negotiating
to retain outside directors which the company agrees are
beneficial to its strategy.
1.1.3 Management Compensation and Benefits. WA will assist in design
and determination of a management, compensation and benefits
program. WA recognizes that having management own a significant
ownership position in the Company is a valuable tool for
focusing their attention on increasing shareholder value.
Accordingly, WA recommends that the Board of Directors put into
effect within the next 12 months a stock option plan to be used
for acquiring additional management. Also implement an
incentive plan for the current management, if one is not
already in effect.
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1.1.4 Strategic Repositioning. WA will assist in repositioning of the
company as necessary, to prepare for fulfillment of the
company's strategic objectives. WA will coordinate all
strategic plan preparation including, but not limited to,
organization of your presentation, business plan, and funding
documents. WA will organize all outside professionals to carry
out company's strategic objectives as quickly and cost
effective as possible.
1.1.5 Capitalization. WA shall make all reasonable efforts to help
Company reach the business objectives to be mutually agreed
upon at a later date.
1.1.6 The Support System. WA will develop, implement and maintain an
ongoing stock market support system with the general objective
of expanding stockbroker awareness of the Company's activities,
and hence to generate commensurate interest in the Company's
stock.
1.2 Company acknowledges as follows:
1.2.1 No Guarantees. WA makes no guarantees, representations or
warranties as to the particular results from WA corporate
development services, the response and timeliness of action by
the investment and brokerage community, including but not
limited to guarantees, representations or warranties as to
future stock price of Company.
1.2.2 Administrative Functions only. WA is not a broker dealer and
will not engage in any services requiring registration as such.
WA's involvement in the capital related transactions is limited
to administrative and facilitory functions, but no broker
dealer functions.
1.2.3 Review Responsibility. Company understands that the accuracy
and completeness of any document prepared by WA or its advisors
is dependent upon Company's alertness to assure that such
document contains all material facts which might be important
and that all such documents must not contain any
misrepresentation of a material fact nor omit information
necessary to make the statements therein not misleading. To
that end, Company agrees to review and adopt, and confirm to WA
in writing that you have reviewed and adopted, all materials
for their accuracy, and completeness prior to any use thereof.
Company also acknowledges that this responsibility continues in
the event that the materials become deficient in this regard.
1.2.4 Representations and Warranties. The Company represents and
warrants to WA that all information provided prior to the
execution of this Agreement, in writing or otherwise, is true
and complete. In the event that such information is determined
to be inaccurate, incomplete or otherwise misleading, this
Agreement may be immediately terminated, at the sole discretion
of WA.
1.2.5 Issuance of Additional Securities/Indebtedness. During the one
(1) year period commencing on the Applicable Date, Company will
not issue any additional securities (except securities (I)
issued in connection with the currently proposed private
securities offerings or "bridge financing" and/or (ii) issuable
upon the exercise or conversion of existing warrants, options,
other convertible securities, or employee stock option plans in
existence on the Applicable Date) or incur and additional
indebtedness (except in the ordinary course of business of to
an aggregate of $50,000 during said one (1) year period)
without the prior written consent of WA.
1.2.6 Officer Compensation. During the one (1) year period commencing
on the Applicable Date, no officer or director of the Company
will receive more that $12,000 per month in cash compensation
without the prior written consent of WA. It is contemplated
that the officers of the Company will
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participate in the stock compensation plan, the terms of which
will be mutually agreed upon by the Parties.
1.2.7 Termination by WA. The Company and/or WA may for any reason
terminate this Agreement before July 1, 1996 with no
reimbursement due either party.
ARTICLE II
COMPENSATION FOR SERVICES
2.1 In consideration for entering into this Agreement and
performing the services described immediately above, Company
agrees in lieu of hourly rates, to compensate WA as follows:
2.1.1 Cash Compensation. Commencing on the Applicable Date and
continuing on the first day of each calendar month during the
Applicable Term (as defined in section 3.1), Company agrees to
pay to WA a monthly fee of $7,500. The monthly fee will be
payable in advance on the first of each month commencing on the
Applicable Date.
2.1.2 Stock Compensation. Effective as of the Applicable Date,
Company agrees to issue to WA warrants to purchase 500,000
shares of common stock of the Company. Such Warrants shall be
exercisable for a period of three years from the Applicable
Date at an initial price of $1.00 per share. The Company shall
execute and deliver a customary Warrant Agreement evidencing
the Warrants. WA acknowledges that the Warrants and the shares
issuable upon exercise of the Warrants (the "Shares") will
initially be "restricted securities" (as such term is define in
Rule 144 promulgated under the Securities Act of 1933, as
amended ("Rule 144"), that the Warrants and Shares will include
a restrictive legend, and that the Warrants and Shares cannot
be sold unless registered with the United States Securities and
Exchange Commission ("SEC") and qualified by appropriate state
securities regulators, or unless WA complies with an exemption
from such registration and qualification (including without
limitation, compliance with Rule 144).
The following formulas apply to the exercise of WA's options.
After ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or Binks Graval sell 100,000 shares
combined of due stock, WA can exercise 200,000 options. After
▇▇▇▇▇▇▇ and Graval sell 200,000 shares, WA can exercise an
additional 200,000 options. After ▇▇▇▇▇▇▇ and Graval sell
300,000 shares, WA can exercise 500,000 options.
Company shall issue the stock certificate for the Shares within
five (5) days after the exercise of any Warrants.
Within 30 days of any shares of the Company becomes publicly
traded, the Company will use its best efforts to cause all the
Shares (whether or not the Warrants have been exercised) to be
registered under the Securities Act of 1933 on Form S-8 or
other appropriate form, all the extent requisite to permit the
sale of other disposition by the prospective sellers of the
shares of Common Stock so registered; provided, however, that
the Company may, as a condition precedent to effectiveness of
such registration, require each prospective seller to agree
with the Company and managing underwriter or underwriters of
any concurrent secondary public offering to be made by the
Company in connection with such registration that such seller
will not sell any securities of the same class or convertible
into the same class as those registered by the Company for such
reasonable period after such registration becomes effective
(not exceeding 90 days) as shall then be specified in writing
by such underwriter or underwriters if in the opinion of such
underwriter or underwriters the Company's offering would be
materially adversely affected in the absence of such an
agreement.
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2.1.3 Expenses. Company agrees to pay all costs and expenses incurred
by WA in connection with WA's rendering of services hereunder,
provided such costs and expenses are of a nature which is
customary for such services, such costs to be covered by funds
including but not limited to funds in the Escrow Account in
excess of funds needed to pay WA's monthly fees. Such expenses
are separate from cash compensation as set out above, and
include but not limited to such incidental costs and expenses
as travel and lodging, copying charges, printing charges, long
distance telephone charges, facsimile charges, postage, special
mailings and other reasonable expenses. All expenses to be
approved in advance by Company.
ARTICLE III
3.1 This Agreement shall commence upon execution of this Agreement
and continue during the one year period of time following the
date of this Agreement. Renewal shall be determined by a vote
of the Board of Directors of the Company. As used herein,
"Applicable Term" means the periods which commences on the
Applicable Date and continues until this Agreement is
terminated regardless of t he reason for such termination
Notwithstanding the foregoing, WA may terminate this Agreement
immediately upon written notice to t he Company upon the
occurrence of any of the following: (a) the Company becomes
insolvent or makes an assignment for the benefit of Creditors;
and/or (b) the Company breaches any of the material terms of
this Agreement. If this Agreement is terminated on or before
the termination date of this Agreement (as set forth above) for
any reason, the entire cash fee shall immediately become due
and payable, shall be deemed to be earned as of such date, and
no offset, refund or reduction of payments shall be
attributable to such termination. The provisions of Article II
shall survive the termination of this Agreement. Company can
terminate with cause with no further reimbursements to WA.
Cause can be defined as gross negligence or dereliction of
duty.
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ARTICLE IV
STATUS OF PARTIES
4.1 Nothing contained in this Agreement shall be construed to imply
that either WA, the Company, or any employee, agent or other
authorized representative of any such party, is a partner,
joint venturer, agent officer or employee of the other. Neither
party hereto shall have any authority to bind the other in any
respect vis a vis any third party, it being intended that each
shall remain an independent contractor and responsible only for
its own actions, The company and WA are independent
contractors, each responsible for its own actions, costs and
expenses. Neither WA nor the Company shall have any right to,
and shall not, commit the other party to any agreement,
contract, or undertaking or waive or compromise any of such
other party's rights against customers or other parties. All
compensation paid to WA shall constitute earnings from
self-employment income and the Company shall not withhold any
amounts therefrom as federal or state income tax withholding
from wages or as employee contributions under the Federal
Insurance Contribution Act (Social Security) or any similar
federal or state law applicable to employers and employees.
ARTICLE V
INDEMNIFICATION
5.1 Company acknowledges that WA must at all times rely upon the
accuracy and completeness of information and documents supplied
to WA by the Company's officers, directors, agents and
employees. consequently, Company and the entities affiliated
with Company agree to indemnify and hold harmless WA, its
officers, directors, employees and agents (collectively, the
"Indemnitees") against and from any and all losses, claims,
damages or liabilities, joint or several, which Indemnities or
any of them may become subject, and to reimburse Indemnitees or
any of them any legal or other expenses (including the cost of
any investigation and preparation) incurred by Indemnitees or
any of them, arising out of or in connection with any inquiry
litigation or other proceeding, whether or not resulting in any
liability, insofar as such losses, claims, damages, liabilities
or expenses arise out of, or are based upon (i) any act taken
or omitted to be taken by any Indemnity requested or approved
by the Company, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any information
(written or oral) furnished by you to Indemnities or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading.
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ARTICLE VI
CONFIDENTIALITY
6.1 WA agrees not at any time (during or after the term of this
Agreement) to disclose or use, except in pursuit of the
business of the Company and Proprietary Information for the
Company acquired during the term of this Agreement. For
purposes of this Agreement the phrase "Proprietary Information"
means all information which is known or intended to be known
only to WA or employees of the Company any document, record or
other information of the Company or other in a confidential
relationship with the Company and relates to specific business
matters such as patents, patent applications, trade secrets,
secret processes, proprietary know-how, information of the
Company's business, and identity of suppliers or customers or
accounting procedures of the Company or relates to other
business of the Company. WA agrees not to remove from the
premises of the Company except in the pursuit of business of
the Company any document, record or other information, whether
developed by WA or by someone else for the Company are the
exclusive property of t he Company, as the case may be.
ARTICLE VII
MISCELLANEOUS
7.1 Waiver. No waiver of any breach of default of this Agreement by
WA shall be considered to be a waiver of any other breach or
default of this Agreement.
7.2 Severability. If any portion of this Agreement is found by a
court of competent jurisdiction to be void or unenforceable,
that portion hereof shall be deemed to be reformed to the
extent necessary to cause such portion to be enforceable and
the same shall not affect the remainder of this Agreement,
which shall be given full force and effect without regard to
the invalid or unenforceable portions.
7.3 Entire Agreement. This Agreement, which may be signed in
duplicate or counterparts, replaces and supersedes all previous
Agreements between WA and the Company, contains the entire
understanding between the parties, and may not be changed,
altered, amended, or modified, except in writing, duly executed
by each of the parties.
7.4 Assignment. This Agreement may not be assigned or transferred
by either party hereto without the prior written consent of the
other.
7.5 Governing Law. This Agreement shall be governed by the laws of
the State of California without regard to any choice of law
provisions thereof.
7.6 Attorneys' Fees. Should any action be commenced between the
parties to this Agreement concerning the matters set forth in
this Agreement concerning the matters set forth in this
Agreement or the right and duties of either in relation
thereto, the prevailing party in such action shall be entitled,
in addition to such other relief as may be granted, to a
reasonable sum as and for its attorneys' fees and costs.
7.7 Arbitration and Venue. Any controversy arising out of or
relating to this Agreement or any modification or extension
thereof, including any claim for damages and/or recision, shall
be settled by arbitration in Orange, county, California in
accordance with the commercial Arbitration Rules of the
American Arbitration Association before one arbitrator. The
arbitrator sitting in any such controversy shall have no power
to alter or modify any express provisions of this Agreement or
to render any award which by its terms effects any such
alteration, or modification. The parties consent to the
jurisdiction of the Superior Court of California, and of the
United States District Court for the Central District of
California for all purposes in connection with such arbitration
including the entry of judgment on any award. The parties
consent that any process or notice of motion or other
application to either of said courts, and any paper in
connection with arbitration , may be served by certified mail
or the equivalent , return receipt requested, or by personal
service or in such manner as may be permissible under the rules
of the applicable court of arbitration tribunal, provided
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a reasonable time for appearance is allowed. The parties
further agree that arbitration proceedings must be instituted
within one year after the claimed breach occurred, and that
such failure to institute arbitration proceedings within such
period shall constitute an absolute bar or the institution of
any proceedings and a waiver of all claims. This section shall
survive the termination of this Agreement.
7.8 Facsimile Signature. Any signature on a facsimile copy of this
Agreement shall be binding and valid as if made on the original
copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
WOODBRIDGE & ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
"COMPANY" CRUSH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: President/CEO
By: /s/ ▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇
Its: CFO
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