EXHIBIT 4.2
ICAPITAL CORPORATION
2603 Main Street, Suite 1150
Irvine, CA 92614
Ph.: (949) 260-8070 Fax: (949) 260-0116
FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the "Agreement") is entered
this 26th day of April, 2001 by and between ICAPITAL CORP. ("Consultant"), a
Nevada corporation, and AMERICAN I R TECHNOLOGIES INC. (OTC BB:ATLI) ("Client"),
a Nevada corporation, with reference to the following:
RECITALS
A. The Client desires to be assured of the association and services of the
Consultant in order to avail itself of the Consultant's experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and is
therefore willing to engage the Consultant upon the terms and conditions set
forth herein.
B. The Consultant agrees to be engaged and retained by the Client and upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ENGAGEMENT. Client hereby engages Consultant on a non-exclusive basis,
and Consultant hereby accepts the engagement to become a financial
consultant to the Client and to render such advice, consultation,
information, and services to the Directors and/or Officers of the
Client regarding general financial and business matters including, but
not limited to:
A. Reorganizations, reverse mergers, divestitures, and due diligence
studies;
B. Capital sources and the formation of financial transactions;
C. Banking methods and systems;
D. Guidance and assistance in available alternatives to maximize
shareholder value;
E. Periodic preparation and distribution of research reports and
information to the broker/dealer and investment banking community.
It shall be expressly understood that Consultant shall have no power to
bind Client to any contract or obligation or to transact any business in
Client's name or on behalf of Client in any manner and Client is not obligated
to accept any recommendations or close any transactions submitted by the
Consultant.
2. TERM. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation (see item 10 "Notices").
3. DUE DILIGENCE. The Client shall supply and deliver to the Consultant all
information relating to the Client Company's business as may be reasonably
requested by the Consultant to enable the Consultant to make an assessment of
the Company and its business prospects and provide the Consulting Services.
4. COMPENSATION AND FEES. As consideration for Consultant entering into
this Agreement, Client and Consultant shall agree to the following:
A. A cash Engagement Fee ("Engagement Fee") of seventy-five thousand
($75,000) dollars, PAYABLE TO THE CONSULTANT PER THE ATTACHED
ADDENDUM.
- AND -
B. Client shall issue certificates representing an aggregate of four
hundred thousand (400,000) shares of common stock (the "Shares").
The shares issued to the Consultant on the date hereof shall have
the status of "restricted" securities as the term is defined by
Rule 144 under the Securities Act of 1933, as amended. These
shares are non-cancelable and shall have piggyback registration
rights upon the first SEC registration filed by the Client.
The Shares, when issued to Consultant, will be duly authorized,
validly issued and outstanding, fully paid and nonassessable and
will not be subject to any liens or encumbrances.
Securities shall be issued to Consultant in accordance with a
mutually acceptable plan of issuance as to relieve securities or
Consultant from restrictions upon transferability of shares in
compliance with applicable registration provisions or exemptions.
5. REPRESENTATIONS, WARRANTS AND COVENANTS. The Client represents, warrants
and covenants to the Consultant as follows:
A. The Client has the full authority, right, power and legal capacity
to enter into this Agreement and to consummate the transactions which are
provided for herein. The execution of this Agreement by the Client and its
delivery to the Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and authorized by all
necessary action by the Client's Board of Directors and no
further authorization shall be necessary on the part of the Client for the
performance and consummation by the Client of the transactions which are
contemplated by this Agreement.
B. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable laws,
rules and regulations of all authorities which affect the Client or its
properties, assets, businesses or prospects. The performance of this
Agreement shall not result in any breach of, or constitute a default under,
or result in the imposition of any lien or encumbrance upon any property of
the Client or cause an acceleration under any arrangement, agreement or
other instrument to which the Client is a party or by which any of its
assets are bound. The Client has performed in all respects all of its
obligations which are, as of the date of this Agreement, required to be
performed by it pursuant to the terms of any such agreement, contract or
commitment.
6. EXCLUSIVITY; PERFORMANCE; CONFIDENTIALITY. The services of Consultant
hereunder shall not be exclusive, and Consultant and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultant agrees that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultant pursuant to the terms of this Agreement.
Consultant shall be required to expend only such time as is necessary to service
Client in a commercially reasonable manner. The Consultant does not guarantee
that its efforts will have any impact upon the Company's business or that there
will be any specific result or improvement from the Consultant's efforts.
Consultant acknowledges and agrees that confidential and valuable information
proprietary to Client and obtained during its engagement by the Client, shall
not be, directly or indirectly, disclosed without the prior express written
consent of the Client, unless and until such information is otherwise known to
the public generally or is not otherwise secret and confidential.
7. INDEPENDENT CONTRACTOR. In its performance hereunder, Consultant and its
agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultant to provide services to Client at any specific time, or in
any specific place or manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. ARBITRATION AND FEES. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is required for any payment
not made when due, the creditor shall collect statutory interest and the cost of
collection, including attorney's fees whether or not court action is required
for enforcement.
9. NOTICES. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail, (ii) overnight delivery
with confirmation of delivery, or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: American I R Technologies Inc.
Attention: Ron Ryan
3080 W. Post Road
Las Vegas, NV 89118
Facsimile No.: (702) 368-4573
If to Consultant: iCapital Corporation
Attention: Blaine Riley
2603 Main Street, Suite #1150
Irvine, CA 92614
Facsimile No.: (949) 260-0116
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. MISCELLANEOUS. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements or negotiations. There are no third party
beneficiaries of this Agreement.
11. COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on
the date first written above.
"Client"
Signature: /s/ Ron Ryan
--------------------------------
Print with Title: Ron Ryan, President, CEO
Company: American I R Technologies Inc.
"Consultant"
Signature: /s/ Blaine Riley
--------------------------------
Print with Title: Blaine Riley, Managing Director
Company: iCapital Corporation
DELIVERY INSTRUCTIONS
By Mail: iCapital Corporation
2603 Main St., Suite 1150
Irvine, CA 92614
By DTC: Miller, Johnson & Keuhn
DTC# 0139
FBO I Capital Corporation
Acct. # 4103-6360
BANK WIRE TRANSFER INFORMATION
FOR ICAPITAL CORPORATION
Routing Number: 122 000 496
Address of Bank: Union Bank of California
1791 MacArthur Blvd.
Irvine, CA 92614
Phone: (949) 250-0580
Account #: 1240022148
ADDENDUM
April 26, 2001
Mr. Ron Ryan
American I R Technologies Inc.
3080 W. Post Road
Las Vegas, NV 89118
Dear Mr. Ryan,
This letter is to confirm the discussion we have had via the telephone the last
several days. Enclosed, you will find iCapital Corporation's Financial
Consulting Services Agreement that will specify payment of our engagement fee on
the date of the signing of the agreement for the stock portion and the cash
portion payable at the time a "funding" for American I R Technologies Inc. takes
place. We will agree that 1/4 (25%) of any funding will be payable to iCapital
Corporation until the full amount owed to iCapital Corporation ($75,000) is
fully paid, and then any monies from funding sources provided by iCapital
Corporation will be fully payable to American I R Technologies Inc. minus any
fees and/or commissions that were already agreed upon by American I R
Technologies Inc. via "term sheet" before said funding(s) took place.
If this is satisfactory, Ron Ryan, President and CEO, of American I R
Technologies Inc., please sign the iCapital Corporation's Financial Consulting
Services Agreement and this Addendum and we will proceed forward.
Sincerely,
/s/ M. Blaine Riley
- -------------------------------
M. Blaine Riley
Managing Director
/s/ Ron Ryan
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Ron Ryan
President and CEO