EXHIBIT 4.2
CONSULTING AGREEMENT
THIS AGREEMENT is made as of August 6, 1996
By and Between
NORTH AMERICAN RESORTS, INC., a Colorado Corporation [the Company]
And
MAX P. CAWAL, an independent individual [the Consultant]
RECITALS
A. The Company represents several Companies that desire to promote
their business plans to the investment community and to build the value of the
Company for the benefit of its respective Shareholders.
B. The Consultant is involved in a variety of businesses, with
particular emphasis in investment banking, mergers and acquisitions, private
placement transactions and financial public relations and promotions for public
Companies; and
C. The Company recognizes the substantial experience and knowledge of
the Consultant in matters relating to investment banking, mergers and
acquisitions, private placement transactions and financial public relations and
promotions; and
D. The Company further recognizes that it is in the best interest of
the Company's clients to engage the services of the Consultant; and
E. The Company desires to retain the valuable services and counsel of
the Consultant, and the Consultant desires to render such services to the
Company upon the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
below, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby agree as follows:
1. RECITALS. the Recitals to this Agreement are hereby incorporated
into this agreement as though fully restated herein.
2. ENGAGEMENT. The Company hereby engages the Consultant, and the
Consultant accepts engagement by the Company, upon the terms and conditions set
forth in this Agreement.
3. TERM. The term of this Agreement shall begin on the date hereof and
shall continue for a period of twelve months from the date hereof.
4. DUTIES. During the term of this Agreement, the Consultant will
provide consulting services to the Company as requested. These services will be
performed on the best efforts basis and will include, without limitation,
assistance in mergers, acquisitions, and internal capital structuring and the
placement of new debt and equity issues, all with the objective of accomplishing
the business and financial goals of the Company's clients. In each instance,
Consultant shall endeavor to assist, subject to market conditions, in
identifying Corporate candidates and sources of private and institutional funds,
providing planning, structuring, strategic and other advisory services ; and
assisting in negotiations on behalf of the Company and its clients. In each
case, the Consultant will exercise his best efforts to accomplish the goals
established by the Company and shall comply with all applicable laws in
connection with the performance of the Agreement. It is understood and agreed
that the Consultant is not a finder or broker and that he is not being
compensated as such hereunder.
5. CONSULTING SERVICE COMPENSATION. See attached Schedule "A".
6. NATURE OF ENGAGEMENT. The Consultant is being engaged by the
Company as an independent contractor and shall be responsible for payment of his
own taxes. Nothing in this Agreement shall be construed so as to create an
employer-employee relationship between the parties.
7. EXPENSES. Upon receipt of requests from the Consultant for
reimbursement, the Company shall reimburse the Consultant for all reasonable and
necessary expenses the Consultant incurs, prior to and after the date of this
Agreement in performing his duties in connection with this Agreement. The
Consultant shall be required to receive authorization for expenses from the
Chief Operating Officer of the Company.
8. NOTICES. Any notice, report or demand required, permitted or
desired under this Agreement shall be sufficient if in writing and delivered by
certified mail, return receipt requested, Fedex [or such similar courier],
telegram or receipted hand delivery at the following addresses [or other
addresses designated by proper notice]:
AS TO THE COMPANY: NORTH AMERICAN RESORTS, INC.
315 East Robinson Street
Suite 190
Orlando, Florida 32801
AS TO THE CONSULTANT: MAX P. CAWAL
8731 Fernwicke Court
Orlando, Florida 32819
Any notice otherwise delivered shall be deemed given when actually received by
recipient.
9. MISCELLANEOUS PROVISIONS:
a. GOVERNING LAW: This Agreement shall be governed by,
interpreted and enforced in accordance with the Laws of the State of
Florida.
b. WAIVER: The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate as a waiver of any other
breach of any provision of this Agreement by any party.
c. ENTIRE AGREEMENT: This instrument contains the entire
Agreement of the parties concerning engagement and may not be changed
or modified except by written agreement duly executed by the parties
hereto.
d. SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors, heirs, personal representatives and assigns.
e. DAYS: Reference in this Agreement to "day" or "days"
refers to calendar days, but if a referenced date falls on a Saturday,
Sunday or Federal holiday, it will be deemed to fall on the next
calendar day that is not a Saturday, Sunday or Federal holiday.
f. CONFIDENTIALITY: Except as may otherwise be required by
Law, the provisions of this Agreement shall remain strictly
confidential. To the extent permitted by the Law, the Board of
Directors of the Company shall ensure that no person other than Members
of the Board of Directors of the Company and appropriate Officers of
the Company are made aware of the terms of this Agreement. In addition,
neither the Company nor the Consultant shall, either directly or
indirectly through their respective Officers, Directors, Employees,
Shareholders, Partners, Joint Ventures, Agents, Consultant, Contractor,
Affiliates or any other person, disclose, communicate, disseminate or
otherwise breach the confidentiality of all or any provision of this
Agreement, without the express written consent of both parties to this
Agreement.
g. SPECIFIC PERFORMANCE: Strict compliance shall be required
with each and every provision of this Agreement. The parties hereto
agree that breach of this Agreement shall result in irreparable damage,
and that specific performance of these obligations may be obtained.
h. ADDITIONAL DOCUMENTS: The Company agrees to execute such
other documents and agreements to effectuate the purposes of this
Agreement, as the Consultant may request from time to time.
i. ASSIGNMENTS: The obligation of the parties under this
Agreement shall not be assigned without the written consent of the
parties. Notwithstanding any provision of this Agreement to the
contrary, however, the Consultant shall be entitled to provide that any
funds payable or stock issueable to him pursuant to this Agreement
shall instead be paid or issued to another person.
j. COUNTERPARTS: This Agreement may be executed in
counterparts, and all counterparts will be considered as part of one
agreement binding on all parties to this Agreement.
k. FACSIMILE SIGNATURES: The parties may execute this
Agreement by facsimile, which signature[s] shall be deemed an original
and binding upon such party.
l. SEVERABILITY: If any term, condition or provision of this
Agreement or the application thereof to any party of circumstance
shall, at any time or to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, condition
or provision to parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and
each term, condition and provision of their Agreeemnt shall be valid
and enforceable to the fullest extent permitted by the Law.
m. DISPUTE PROCEDURE: Any dispute, claim or controversy
arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration in Orlando, Florida in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association. We further agree that we will abide by and perform any
award rendered by the Arbitrator[s] and that judgment upon any such
award may be in any court, State or Federal, having any arbitration
demand, service of process, notice of motion or other application the
court or any Judge thereof may be served by registered or certified
mail, or by personal service, provided a reasonable time for appearance
or answer is allowed.
n. BOARD OF DIRECTORS: Except as expressly provided otherwise
in the Agreement, reference to the actions, determinations or similar
occurrences by the Company shall mean the action, decisions or
determination of its Board of Directors.
o. AUTHORITY: The Company hereby represents and warrants that
the person executing this Agreement on its behalf is duly authorized to
do so that the execution of the Agreement has been duly approved by the
Board of Directors of the Company, and that this Agreement is binding
upon the Company. The Company hereby agrees to provide such
documentation evidencing such authorization and approval as the
Consultant may reasonably request, including, without limitation,
written consents of the Board of Directors of the Company.
p. INDEMNITY: The Company agrees to indemnify and hold
Consultant and his associates harmless from and against all losses,
claims, damages, liabilities, costs or expenses arising out of entering
into or performing services under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
NORTH AMERICAN RESORTS, INC.
BY
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Tom Arrigoni / Senior Consultant
MAX P. CAWAL
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