EXHIBIT 4.1
CONSULTING AGREEMENT
CONSULTING AGREEMENT, made this 29th day of August, 1996, by and between
Semicon Tools Inc, located at 111 Business Park Drive Armonk N.Y. 10504 (herein
referred to as the "Company" and TOBY INVESTMENT GROUP with offices in
Wichatunk, New Jersey(herein referred to as the "Consultant")
WHEREAS, the Consultant provides professional corporate finance,
financial public relations, management consulting and advisory service;
WHEREAS, The Company is publicly held with its common stock trading on
the National Association of Securities Dealers Automated Quotation System
(Bulletin Board);
WHEREAS, Consultant desires to engage the Company as a Client and is duly
qualified to enter into this agreement;
NOW, THEREFORE, In consideration of the premises, the terms, covenants
and conditions herein and other valuable consideration, the receipt, adequacy
and sufficiency of which the parties hereto acknowledge, the parties hereto
agree as follows;
1. APPOINTMENT, The Company hereby retains the Consultant and the
Consultant hereby accepts such engagement upon the terms and conditions of this
Agreement.
2. TERM, the term of this agreement shall begin on August 27, 1996 and
shall terminate on August 27, 1997.
3. CONSULTING SERVICES.
(a) Making itself available for financial, marketing, management
and administrative consulting including, but not limited to aiding and assisting
the Company in locating and structuring business combinations, strategic
partners and/or candidates and agreements reflecting the intent of the parties
and otherwise consummating such transactions on terms favorable to the Company
and its public stockholders;
(b) Making itself available for personal consultation with the
officers, directors and employees of the Company at the office of the Company or
at such other mutually agreed upon place during the normal business hours for
reasonable
periods subject to reasonable advance notice and mutual convenient scheduling;
(c) Making itself available for consultation by telephone with
financial, sales and operating officers of the Company during normal business
hours.
(d) Perform such other lawful consulting and
advisory services relating to such aspects of the Company, its management,
operation and development as the principal executive, financial, sales, and/or
operating officers of the Company may reasonably request consistent with the
provisions of this Agreement ( hereafter collectively referred to as the
"Services") and
(e) Such other duties as requested from time to time by
executive officers of the Company.
4. DUTIES OF THE COMPANY.
(a) The Company shall supply the Consultant, on a regular and
timely basis, with all approved data and information about the Company, its
management, its products and its operations and advising the Consultant of any
facts which would affect the accuracy of any prior data and information
previously supplied to the Consultant so that the Consultant may take corrective
action.
(b) The Company shall promptly supply the Consultant with: full
and complete copies of all filings with all federal and state securities
agencies; full and complete copies of all Stockholder reports and communications
whether or not prepared with the Consultant's assistance; all data and
information supplied to any analyst, broker-dealer, market maker or other member
of the financial community; and all products/services brochures, sales
materials, etc.
(c) The Company shall contemporaneously notify Consultant if any
information or data being to Consultant has not been generally released or
promulgated.
5. DEVOTION OF TIME
The Consultant shall devote such percentage of Consultant's time
and skills in the performance of the Services as, in the Consultants sole
discretion, shall be necessary to accomplish the same. In its regard, it is
hereby specifically agreed that Consultant shall not be required to devote any
specified minimum number of hours per week for services to the Company solely in
exchange for the compensation indicated herein.
6. CONFIDENTIALITY
(a) All information furnished by the Company to Consultant
shall be treated as the property of the Company. Upon termination of this
Agreement the Consultant shall return to the Company all documents or other
materials delivered by the Company to Consultant. The Consultant shall use its
best efforts to keep confidential information and shall not directly or
indirectly use the information for any competitive or other commercial purpose
except for the performance of the Services. The obligation to keep the
information confidential shall not apply to (i) at the time of
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the disclosure, is in the public domain (ii) after disclosure enters the domain
by way of printed publication through no fault of the Consultant or those in
privity with it; (iii) Consultant can show by written documentation was in his
possession at the time of disclosure and which was not acquired directly or
indirectly from the Company or (iv) Consultant can show by written documentation
was acquired after disclosure, from a third party, did not receive from tile
Company and who had the right to disclose the information and the obligation to
hold such information confidential.
(b) Disclosure in accordance with an order of competent
jurisdiction.
7. COMPENSATION. In consideration for the Services provided by the
Consultant, the Company (i) shall issue the Consultant options to purchase up to
7,900,000 shares of Common Stock of the Company exercisable at the following
prices per share.
7.1 An option to purchase up to Four Hundred Thousand (400,000) Shares
at a price of $0.15 per share during the period commencing on the date hereof
and ending October 31, 1996, plus
7.2 An option to purchase up to One Million Five Hundred Thousand
(1,500,000) Shares at a price of $0.25 per share during the period commencing on
the date hereof and ending October 31, 1996, plus
7.3 An option to purchase up to Two Million (2,000,000) Shares at a
price of $0.50 per share during the period commencing on the date hereof and
ending October 31, 1996, plus
7.4 An option to purchase up to Two Million (2,000,000) Shares at a
price of $0.75 per share during the period commencing on the date hereof and
ending October 31, 1996, plus
7.5 An option to purchase up to Two Million (2,000,000) Shares at a
price of $1.00 per share during the period commencing on the date hereof and
ending October 31, 1996.
8. Registration. on one occasion only, but not later then 30 days
following the date hereof, at the sole cost of the Company, the Company shall
undertake to file a registration statement on behalf of the holders of a
majority of said Options to register such underlying Shares shall be registered
on Form S-8 or such other applicable registration form adapted by the Securities
and Exchange Commission for the registration of shares of stock, in order to
make the shares deliverable hereunder freely tradeable by Consultant.
9. RELATIONSHIP OF PARTIES, The Consultant is an
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independent contractor, responsible for compensation of its agents, employees
and representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workers' compensation
Insurance and all other necessary taxes and insurance. This Agreement does not
establish any partnership, joint venture, or other business entity or
association between the parties and neither party is intended to have any
interest in the business or property of the
other.
10. TERMINATION. Consultant's services may be terminated at any time
by the Company. If Consultant's services are terminated Consultant will be
entitled to receive and retail, those options accrued to Consultant pursuant to
paragraph 7
hereof. Notwithstanding the forgoing. Company may terminate this Agreement for
cause at any time during the term of this Agreement. Cause for the termination
of this Agreement shall be determined solely at the discretion of the Company.
If this
Agreement is terminated by the Company for cause, the accrued Options shall no
longer be in full force and effect and this Agreement shall immediately become
null and void with no further obligation from either party to the other.
11. DISCLAIMER BY CONSULTANT. The Consultant makes no
representation that (a) the price of the Company's publicly-traded securities
will Increase, (b) any person will purchase securities in the Company as a
result of the
contract, or (c) any Investor will lend money to or invest in or with the
Company.
12. NON-ASSIGNABILITY. The rights, obligations and benefits
established by this Agreement shall not be assignable by either party hereto
except with the consent of the other. The Options to be issued to Consultant
shall be non-assignable. This Agreement shall, however, be binding upon and
shall inure to the benefit of the parties and their successors.
13. COMPLIANCE-AND GOVERNING LAW. The Consultant, together with his
agents and associates, shall take, all necessary, appropriate and reasonable
steps to provide the services in accordance with both the securities laws of the
United States and the several states, and pursuant to rules and regulations
promulgated thereunder, as well as in accordance with the rules and regulations
of the National Association of Securities Dealers. The terms and provisions of
this Agreement shall be governed and construed under the laws of New York State.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. each of which shall be deemed original, but all of which shall
constitute but one agreement.
15. NOTICE. Notice hereunder shall be in writing and
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shall be deemed to have been given (a) at the time when deposited for mailing in
a receptacle under the control of the United States Postal Service, by
registered or certified mail, prepaid, return receipt requested, or (b) on the
business day following day deposit with a reputable overnight courier for
overnight delivery; each address to the respective party at the address of such
party first above written or at such other address as such party may fix by
notice given pursuant to this paragraph.
16. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction,
such invalidity. illegality or unenforceability will not effect any Provision or
any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein. It is acknowledged that Consultant is
not a registered broker/dealer,and the scope of the engagement hereby is not
such as would require Such registration.
17. NO OTHER AGREEMENTS. This Agreement supersedes all prior
understandings, written or orally given and constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof. No
waiver, modification or termination of this Agreement shall be valid unless In
writing signed by each of the parties hereto. It is further understood that the
intent of
this Agreement is for the Consultant to provide Services which Ate not deemed to
be In connection with an underwriting as defined by the NASD. If for reason all
or part of the compensation provided hereby is deemed in connection an
underwriting by the NASD, then Consultant shall reasonably cooperate with the
Company in modifying or restructuring its compensation.
18. INDIVIDUAL REPRESENTATION. Each party to this Agreement has had
the opportunity to be represented by independent legal counsel in connection
with the negotiation and execution of this Agreement or has had the opportunity
to obtain Independent legal counsel, has been advised that it is in the party's
best interest to do so, and by execution of this Agreement has waived this
right.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
Semicon Tools Inc TOBY INVESTMENT GROUP
By:/s/ Eugene Pian By:/s/ Barry Korbin
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Eugene Pian Barry Korbin
President General Partner
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