EXHIBIT 4.2
BUSINESS CONSULTING AGREEMENT WITH
WINDSOR PARTNERS, INC.
DATED OCTOBER 19, 2000
BUSINESS CONSULTING AGREEMENT
This Agreement (the "AGREEMENT") is dated October 19th, 2000 and is entered into
by and between CELEXX CORP (hereinafter "CLXX" or "CLIENT") and WINDSOR
PARTNERS, INC. (hereinafter "WPI").
1. CONDITIONS. This Agreement will not take effect, and WPI will have no
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to WPI (either by mail or facsimile
copy). In addition, CLIENT shall be truthful with WPI in regard to any
relevant or material information provided by CLIENT, verbally or otherwise
which refers, relates, or otherwise pertains to the CLIENT's business, this
Agreement or any other relevant transaction. Breach of either of these
conditions shall be considered a material breach and will automatically
grant WPI the right to terminate this Agreement and all moneys, and other
forms of compensation, paid or owing as of the date of termination by WPI
shall be forfeited without further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with WPI
in carrying out the purposes of this Agreement, keep WPI informed of any
developments of importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, WPI will perform the
following services for CLIENT:
2.1 ADVICE AND COUNSEL. WPI will provide advice and counsel
regarding CLIENT's strategic business plans, strategy and
negotiations with potential business strategic partnering,
corporate planning and or other general business consulting
needs as expressed by CLIENT.
2.2 MERGERS AND ACQUISITIONS. WPI will provide assistance to
CLIENT, as mutually agreed, in identifying merger and / or
acquisition candidates, assisting in any due diligence
process, recommending transaction terms and providing advice
and assistance during negotiations, as needed.
2.3 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE.
WPI will participate and assist CLIENT in the due diligence
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process, where possible, on all proposed financial transactions
affecting CLIENT of which WPI is notified in writing in advance,
including conducting investigation of and providing advice on the
financial, valuation and stock price implications of the proposed
transaction(s).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, WPI will assist and
cooperate with CLIENT in the development, editing and production
of such documents as are reasonably necessary to assist in any
transaction covered by this Agreement. However, this Agreement
will not include the preparation or procuring of legal documents
or those documents normally prepared by an attorney.
2.5 ADDITIONAL DUTIES. CLIENT and WPI shall mutually agree, in
writing, for any additional duties that WPI may provide to CLIENT
for compensation paid or payable by CLIENT under this Agreement.
Although there is no requirement to do so, such additional
agreement(s) may be attached hereto and made a part hereof by
written amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
2.6 STANDARD OF PERFORMANCE. WPI shall devote such time and efforts
to the affairs of the CLIENT as is reasonably necessary to render
the services contemplated by this Agreement. Any work or task of
WPI provided for herein which requires CLIENT to provide certain
information to assist WPI in completion of the work shall be
excused (without effect upon any obligation of CLIENT) until such
time as CLIENT has fully provided all information and cooperation
necessary for WPI to complete the work. The services of WPI shall
not include the rendering of any legal opinions or the
performance of any work that is in the ordinary purview of a
certified public accountant, or other licensed professional. WPI
cannot guarantee results on behalf of CLIENT, but shall use
commercially reasonable efforts in providing the services listed
above. If an interest is communicated to WPI regarding satisfying
all or part of CLIENT's business and corporate strategic planning
needs, WPI shall notify CLIENT and advise it as to the source of
such interest and any terms and conditions of such interest.
2.7 NON-GUARANTEE. WPI MAKES NO GUARANTEE THAT WPI WILL BE ABLE TO
SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN
CONSUMMATE A MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO
SUCCESSFULLY COMPLETE SUCH A TRANSACTION WITHIN CLIENT'S DESIRED
TIME FRAME. NEITHER ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOR THE PAYMENT OF DEPOSITS TO WPI BY CLIENT PURSUANT TO FEE
AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE
CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING
POTENTIAL TIME FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF
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CLIENT'S NEEDS ARE EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES
OF THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3. COMPENSATION TO WPI.
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration
for WPI entering into this Agreement, Client agrees to cause
200,000 shares of its common stock, par value $.001 per share, to
be issued to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an affiliate WPI. When issued, said
shares shall be free trading shares, registered with the U. S.
Securities and Exchange Commission on its Form S-8. The
registration and issuance of said shares shall take place by no
later than 75 days following the execution and delivery of this
Agreement, and all costs in connection therewith shall be borne
by Client.
3.2 FEES FOR MERGER/ACQUISITION. In the event that WPI, assists
CLIENT and / or introduces CLIENT (or a CLIENT affiliate) to any
third party, merger partner(s) or joint venture(s) who then
enters into a merger, joint venture or similar agreement with
CLIENT or CLIENT's affiliate, CLIENT hereby agrees to pay WPI
advisory fees pursuant to the following schedule which are based
on the aggregate amount of such merger, joint venture or similar
agreement with CLIENT or CLIENT's affiliate. Advisory fees are
deemed earned and shall be due and payable at the first close of
the transaction, however, in certain circumstances when payment
of advisory fees at closing is not possible, within 24 hours
after CLIENT has received the proceeds of such investment. This
provision shall survive this Agreement for a period of one year
after termination or expiration of this Agreement. In other
words, the advisory fee shall be deemed earned and due and
payable for any funding, underwriting, merger, joint venture or
similar transaction which first closes within a year of the
termination or expiration of this Agreement as a result of an
introduction as set forth above.
MERGER/ACQUISITION. For a merger/acquisition entered into by
CLIENT as a result of the efforts of, or an introduction by WPI
during the term of this Agreement, Client shall pay WPI, five (5)
percent of the total value of the transaction. For a
merger/acquisition entered into by CLIENT as a result of the
efforts of WPI and the introduction by CLIENT during the term of
this Agreement, Client shall pay WPI, three (3) percent of the
total value of the transaction. Such percentage(s) shall be paid
to WPI in the same ratio of cash and / or stock as the
transaction.
3.3 EXPENSES. CLIENT shall reimburse WPI for reasonable expenses
incurred in performing its duties pursuant to this Agreement
(including printing, postage, express mail, photo reproduction,
travel, lodging, and long distance telephone and facsimile
charges); provided, however, that WPI must receive prior written
approval from CLIENT for any expenses over $ 250. Such
reimbursement shall be payable within 7 seven days after CLIENT's
receipt of WPI invoice for same.
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3.4 ADDITIONAL FEES. CLIENT and WPI shall mutually agree upon any
additional fees that CLIENT may pay in the future for services
rendered by WPI under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be
attached hereto and made a part hereof as Exhibits beginning with
Exhibit A.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless
WPI, each of its officers, directors, employees and shareholders
against any and all liability, loss and costs, expenses or
damages, including but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever or howsoever caused by reason of any injury
(whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property,
arising out of any act, failure to act, neglect, any untrue or
alleged untrue statement of a material fact or failure to state a
material fact which thereby makes a statement false or
misleading, or any breach of any material representation,
warranty or covenant by CLIENT or any of its agents, employees,
or other representatives. Nothing herein is intended to nor shall
it relieve either party from liability for its own willful act,
omission or negligence. All remedies provided by law, or in
equity shall be cumulative and not in the alternative.
5. CONFIDENTIALITY.
5.1 WPI and CLIENT each agree to keep confidential and provide
reasonable security measures to keep confidential information
where release may be detrimental to their respective business
interests. WPI and CLIENT shall each require their employees,
agents, affiliates, other licensees, and others who will have
access to the information through WPI and CLIENT respectively, to
first enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
5.2 WPI will not, either during its engagement by the CLIENT pursuant
to this Agreement or at any time thereafter, disclose, use or
make known for its or another's benefit any confidential
information, knowledge, or data of the CLIENT or any of its
affiliates in any way acquired or used by WPI during its
engagement by the CLIENT. Confidential information, knowledge or
data of the CLIENT and its affiliates shall not include any
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information that is, or becomes generally available to the public
other than as a result of a disclosure by WPI or its
representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented only by written agreement of WPI and
CLIENT.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. The obligations of
either party hereunder cannot be assigned without the express written
consent of the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflict of law doctrine. CLIENT and WPI agree that if any action is
instituted to enforce or interpret any provision of this Agreement, the
jurisdiction and venue shall be Orange County, California.
6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce
and collect upon the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and costs, in addition
to any other relief to which that party may be entitled. This provision
shall be construed as applicable to the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed by
a court of competent jurisdiction, to be invalid or unenforceable, that
part shall be severable from the remainder of the Agreement.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN
CLIENT, WPI OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES,
ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER
PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF
THIS AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN
THROUGH LITIGATION. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND
DIFFERENT FROM COURT PROCEEDING;
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D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL
OR TO SEEK MODIFICATION OF RULING BY THE ARBITRATORS IS
STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO
INCLUDE ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED
BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO THE AMERICAN ARBITRATION ASSOCIATION, IN
ORANGE COUNTY, CALIFORNIA WITHIN FIVE (5) DAYS AFTER
RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION
ON REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN
ARBITRATION PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED
SHALL TAKE PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN
EFFORT TO RESIST ARBITRATION AND BE UNSUCCESSFUL IN
RESISTING ARBITRATION OR SHALL UNSUCCESSFULLY CONTEST THE
JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN ORANGE
COUNTY, CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF
THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO
RECOVER FROM THE LOSING PARTY ITS LEGAL FEES AND ANY
OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THE
DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE
ITS RIGHTS TO ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING
FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR
JUDGMENT AND EXECUTION FOR COLLECTION.
8. TERM/TERMINATION. This Agreement is an agreement for the term of
approximately six (6) months ending March 31, 2001.
9. REGISTRATION OF SHARES. WPI shall have standard piggyback registration
rights (as described in Section 3.2 herein) of all shares issued in
accordance with this Agreement, which are not subject to registration per
Section 3.0 et seq. herein.
10. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby agrees
that WPI may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, natural persons, corporations, limited liability companies,
partnerships, unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or ""Opportunities""). CLIENT
further acknowledges and agrees that the identity of the subject
Opportunities, and all other information concerning an Opportunity
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(including without limitation, all mailing information, phone and fax
numbers, email addresses and other contact information) introduced
hereunder are the property of WPI, and shall be treated as confidential and
proprietary information by CLIENT, it affiliates, officers, directors,
shareholders, employees, agents, representatives, successors and assigns.
CLIENT shall not use such information, except in the context of any
arrangement with WPI in which WPI is directly and actively involved, and
never without WPI's prior written approval. CLIENT further agrees that
neither it nor its employees, affiliates or assigns, shall enter into, or
otherwise arrange (either for it/him/herself, or any other person or
entity) any business relationship, contact any person regarding such
Opportunity, either directly or indirectly, or any of its affiliates, or
accept any compensation or advantage in relation to such Opportunity except
as directly though WPI, without the prior written approval of WPI. WPI is
relying on CLIENT's assent to these terms and their intent to be bound by
the terms by evidence of their signature. Without CLIENT's signed assent to
these terms, WPI would not introduce any Opportunity or disclose any
confidential information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CELEXX CORP (CLXX )
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sign Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Date: October 19, 2000
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
WINDSOR PARTNERS, INC. ( WPI)
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sign Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Date: October 19, 2000
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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