EXHIBIT 4.1
CONSULTING AND SERVICES AGREEMENT
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THIS AGREEMENT is dated February 6, 2003, by and between ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ (T/A Grantsearch) of The Quinta, Beechfield Road, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Consultant"), and Torbay Holdings, Inc., a Delaware
corporation, having places of business at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇ ("Company").
WITNESSETH:
Consultant is engaged in the business of, among other things, providing
consulting and business advisory services, in the area of introductions to
individuals and organizations within the European Community (EC) for the
purposes of introduction of US corporations to EC Corporations and Investigation
of entry on to Equity Markets as single or joint listings and the Company seeks
these services for the Company; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Services. Consultant shall, during the term of this Agreement,
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provide the following services to the Company:
a) Consultant shall analyze and provide advice and introductions as to
both short and long-term strategic business plans, business development, mergers
and acquisitions; as well as make recommendations for strategic partners and
investor relations purposes.
b) Consultant shall provide all the consulting services described herein
directly to management of the Company. While the Consultant is authorized to
speak to and consult with others, the Consultant does not have any right or
power to bind the Company to any matter whatsoever or to make any representation
pertaining to the Company whatsoever. Further, the Consultant is not authorized
or empowered to commit the Company to any recommendations or course of action,
or any agreement, promise, or representation; and
c) Consultant shall provide such other general consulting services as may
be reasonably requested by the Company, from time to time, during the term;
subject to mutual understanding and written agreement between the Company and
Consultant provided that there be no minimum time requirement for the
Consultant's services pursuant to this agreement.
2. Consulting Compensation. In consideration for the services to be provided
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by the Consultant pursuant to Section 1 above, the Consultant shall be
compensated as follows:
a) In consideration for entering into this agreement the Consultant shall
be issued 250,000 shares of restricted common stock. Shares shall be issued as
soon a possible after February 4, 2003 and registered free trading as early as
practical until which time they will be subject to restriction under Regulation
144M.
b) Consultant shall be reimbursed for any pre-approved travel and related
expenses when providing services to the Company; subject to a written estimate
or statement which is provided by the Consultant to the Company and approved by
its President.
3. Indemnification. Both the Company and Consultant shall indemnify and
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hold harmless one another as to and against all losses, claims, damages,
liabilities, and expenses (including reasonable attorney's fees) caused by the
actions of the other and for which any subsequent action is brought by any third
party. Both parties shall indemnify and hold harmless one another as to all
losses, claims, damages, liabilities, and expenses caused by any prior acts of
the other. The Company shall also indemnify and hold harmless the Consultant as
to and against all losses, claims, damages, liabilities, and expenses caused by
any untrue or alleged fact required to be stated therein or necessary to make
the statements therein not misleading as to the public filings of the Company;
provided, however, that the Company will not be liable in any such case to the
extent that such item arises out of or is based upon an untrue statement or
alleged untrue statement, prospectus or preliminary prospectus or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in reliance
upon, and in conformity with, information furnished to the Company by
Consultant, and/or in any case the Consultant is aware of the problem.
4. Term. The term of this Agreement shall be for an initial term (the
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"Initial Term") of Twelve (12) months commencing on the date first set forth
above. And upon completion of this Initial Term a further 250,000 shares will be
issued to the Consultant upon the same conditions of issue as above. This
Agreement may be extended beyond the Initial Term and the rate of compensation
may be adjusted as long as it is agreeable to both parties.
5. Bonus Share. In the event of the identifying and introducing and
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agreements being reached with EC contacts by and independent to, the Consultant
during the Initial Term and the terms of issuance as above, then a further
500,000 shares will be issued to the Consultant.
6. Non-Exclusive. Consultant shall devote such of its time and effort, as
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Consultant deems necessary or desirable to the discharge of its duties
hereunder. The Company acknowledges that Consultant is engaged in other business
activities and that it will continue such activities during the term of this
Agreement. Consultant shall not be restricted from engaging in other business
activities during the term of this Agreement.
7. Confidentiality. Consultant shall, and shall cause officers, directors,
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employees and agents of Consultant to, hold confidential and not publish,
disclose or make accessible to any other person not bound by an obligation of
confidentially, all confidential information, if any, which Consultant or any of
its officers, directors, employees, or agents may, from time-to-time, possess
relating to financial condition, results of operation, business, property,
assets or liabilities of the Company; provided, however, the restrictions of
this sentence shall not apply to information that (I) is publicly available,
(II) already is known to Consultant at the time of disclosure, or (III) is
received from a third party not under any obligation of confidentiality to the
Company, or (IV) is required by law or statute to be disclosed.
8. Benefit, Burden, and Assignment. The provisions herein shall ensure to
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the benefit of, and be binding upon, the parties hereto and their permitted
assigns and successors. This Agreement may be assigned without the prior written
consent of all parties hereto.
8. Severability. If any provision of this Agreement shall be deemed by any
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court of competent jurisdiction invalid or unenforceable to any extent, the
remainder of this Agreement, or the application of such provision in any other
circumstance shall not be affected thereby and each provision shall otherwise be
valid and shall be enforced to the fullest extent permitted by applicable law.
9. Governing Law. The laws of the State of New York, U.S.A. shall govern
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this Agreement, and the venue for any action, claim or proceeding in connection
with this Agreement shall be a court of competent jurisdiction in New York, USA.
10. Entire Agreement. This Agreement sets forth all of the promises,
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agreements, conditions, understandings, warranties and representations among the
parties with respect to the subject matter hereof. This Agreement is, and is
intended by the parties to be, an integration of any and all prior agreements
and understandings, oral, written, express or implied with respect to the
subject matter hereof.
11. Captions. Captions in this Agreement are for convenience of reference
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only and shall not be used in the interpretation.
12. Independent Legal Counsel. The parties agree and acknowledge that they
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have been represented by independent legal counsel, or have had the opportunity
to obtain independent legal counsel, have been advised that it is in their best
interests to do so, and by execution of this Agreement have waived the right.
13. Amendments and Modification. No amendment or modification to this
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Agreement shall be valid unless in writing and signed by the parties hereto.
14. Ambiguities. The parties hereby acknowledge that the normal rule of
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construction to the effect that ambiguities in an agreement are constructed
against the drafting party shall not apply to this Agreement.
15. Cooperation. Each party hereby agrees to provide such reasonable
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cooperation and execute such reasonable documents as shall be reasonably
required or requested by the other party hereto to perform the Agreement.
16. Written Provisions. Hand-written provisions hereto initiated by the
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parties hereto shall control to the extent of any conflict with the typed
provisions herein.
17. Execution. This Agreement may be executed via facsimile and in
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE
DAY AND YEAR FIRST ABOVE WRITTEN.
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇. ▇. ▇▇▇▇
______________________ _____________________
Consultant Chairman
