EXHIBIT 4.1
CONSULTING SERVICES AGREEMENT
Consulting Services Agreement
dated July 25, 1996, between
Registrant and Amber Capital Corporation
CONSULTING AGREEMENT OF October 1, 1996 by and between ADVANCED FINANCIAL,
INC., 5425 Martindale, Shawnee, KS 66218 (the "Company"), and AMBER CAPITAL
CORPORATION, 2 Spur Lane, Rolling Hills, CA 90274 or its assignees
("Consultant").
WHEREAS, Consultant is in the business of assisting public companies in
financial relations; and
WHEREAS, the Company desires to retain Consultant to provide certain
specified service for the Company.
NOW, THEREFORE, in consideration of the mutual covenants and promised
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. DUTIES AND INVOLVEMENT
1.1. The Company hereby engages the Consultant to provide public relations
services. Such services will generally include advice to and consulting with the
Company's management concerning marketing surveys, investor profile information,
methods of expanding investor support and increasing investor awareness of the
Company and its products and/or services. The Consultant will provide assistance
in preparation and format of due diligence meetings, and attendance at
conventions and trade shows.
1.2. Consultant acknowledges that neither it nor any of its employees or
affiliates is an officer, director, or agent of the Company, that in rendering
advice or recommendations to the Company it is not and will not be responsible
for any management decisions on behalf of the Company and that it is not
authorized or empowered to commit the Company to any recommendation or course of
action. The Company represents that Consultant does not have, through stock
ownership or otherwise, the power to control the Company nor to exercise any
dominating influence over its management.
2. TERMS
This Agreement shall continue until twenty four (24) months from date of
execution.
3. COMPENSATION
Upon execution of this Agreement, as total and complete consideration for
the services to be provided and expenses to be incurred (described below) by
Consultant hereunder, the Company will issue and deliver to Consultant 250,000
shares of Common Stock of the Company (the "Shares") which the Company shall
immediately register for free-trading under the Securities Act of 1933, as
amended, by filing with the Securities and Exchange Commission a registration
statement relating to such Shares on Form S-8. The Company shall pay such
complete compensation to the Consultant by no later than October 15, 1996.
4. PAYMENT OF EXPENSES
Consultant agrees to pay for all costs and expenses incurred by Consultant
and its representatives and by third parties engaged by it in connection with
the performance of the financial and public relations services provided for
herein.
5. SERVICES NOT EXCLUSIVE
Consultant shall devote such of its time and effort necessary 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.
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6. CONFIDENTIALITY
Consultant acknowledges that it may have access to confidential information
regarding the Company and its business. Consultant agrees that it will not,
during or subsequent to the term of this Agreement except as reasonably required
in the performance of its services hereunder, divulge, furnish, or make
accessible to any person (other than with the written permission of the Company)
any knowledge or information or plans of the Company with respect to the Company
or its business, including, but not limited to, the products of the Company,
whether in the concept or development state or being marketed by the Company on
the effective date of this Agreement or during the term hereof.
7. COVENANT NOT TO COMPETE
During the term of this Agreement, Consultant warrants, represents and
agrees that it will not complete directly with the Company in the Company's
primary industry or related fields.
8. REGISTRATION OF SECURITIES
As provided hereinabove, the Company will immediately file with the
Securities and Exchange Commission a registration statement on Form S-8
including the Shares. The Company will undertake to comply with the various
states securities laws and regulations with respect to the registration of the
Shares. The Company undertakes to make available for review and comment by
Consultant, on a timely basis and prior to submission with any regulatory
agency, copies of the registration statement.
8.1. At all times following registration of the Shares and continuing for
not less than twelve (12) months following such registration, the Company shall
maintain and be current on all filings with the United States Securities and
Exchange Commission, appropriate state securities departments and, as may by
required, with the National Association of Securities Dealers, Inc., the Nasdaq
SmallCap Market, and/or national or regional stock exchanges necessary to allow
the Shares to be freely tradable in the public market.
8.2. The Company agrees during the term of this Agreement it will not
without the prior written approval of the Consultant issue any common stock
pursuant to Regulation S. of the General Regulations of the Securities and
Exchange Commission or any registration of the Company's securities by means of
a Form S-8 registration statement.
9. CERTAIN REPRESENTATIONS AND WARRANTIES
In order to give comfort to the Consultant, the Company represents and
warrants the following:
9.1. The Company will furnish to Consultant, as requested, all information
concerning the Company which is relevant to its past, current and planned
operations, including, without limitation (I) financial statements, including
current cash received and disbursed (ii) issuance of stock, stock options or
warrants, including the pricing of such stock and stock rights (iii) terms or
employment agreements, including benefits of all types (iv) all Board of
Directors resolutions (v) all borrowing of any type (vi) shareholder lists (vii)
monthly reports from the Depository Trust Corporation ("DTC") or similar
organization and (viii) all transactions among affiliates or controlling persons
of the Company.
9.2. The Company is authorized and has the full power to issue such Shares
and to file a registration statement on Form S-8 for such Shares. Such issuance
or registration thereof will not violate any agreement, covenant, understanding,
arrangement or otherwise with any party, broker, agent, or entity.
10. INVESTMENT REPRESENTATION
The Company represents and warrants that it has provided Consultant access
to all information available to the Company concerning its condition, financial
and otherwise, its management, its business and its prospects. The Company
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represents that it has provided Consultant with all copies of the Company's
filings for the prior 12 months made under the Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the "Act"), or the Securities
Exchange Act of 1934, as amended the ("Exchange Act"), if any (the "Disclosure
Documents"). Consultant acknowledges that the acquisition of the securities to
be issued to Consultant involves a high degree of risk. Consultant represents
that it and its advisors have been afforded the opportunity to discuss the
Company with its management. The Company represents that it has and will
continue to provide Consultant with any information or documentation necessary
to verify the accuracy of the information contained in the Disclosure Documents
and will promptly notify Consultant upon the filing of any registration
statement or other periodic reporting documents filed pursuant to the Act or the
Exchange Act. The Company hereby represents that it does not currently have any
of its securities in registration and further agrees to refrain from offering
for sale any additional securities of the Company and from filing any additional
registration statements during the term of this Agreement other than as provided
for herein without the consent of Consultant.
11. ASSIGNMENT
This Agreement may be assigned without the written consent of the Company
but shall be binding upon the successors of the parties.
12. ARBITRATION
Any dispute, controversy or claim between the Company and Consultant
arising out of or related to this Agreement, or breach thereof, shall be settled
by arbitration, which shall be conducted in accordance with the rules of the
American Arbitration Association then in effect. Any award shall be binding and
conclusive for all purpose thereof, may include injunctive relief, as well as
orders for specific performance, and may be entered as a final judgment in any
court of competent jurisdiction. No arbitration arising out of or relating to
this Agreement shall include, by consolidation or joinder or in any other
manner, parties other than the Company or Consultant and other persons
substantially involved in common questions of fact or law whose presence is
required if complete relief is to be afforded in arbitration. The costs and
expenses of such arbitration shall be borne in accordance with the determination
of the arbitrator and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail, express delivery or personal service at the address provided for
herein.
13. INDEMNIFICATION
13.1 The Company agrees to indemnify and hold harmless Consultant and its
agents and employees against any losses, claims, damages or liabilities, joint
or several, to which Consultant or any such other person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions, suits or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, any preliminary
prospectus, the prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated herein or necessary to make the statements
therein not misleading; and will reimburse Consultant or any such other person
for any legal or other expenses reasonably incurred by Consultant or any such
other person in connection with investigating or defending any such loss, claim,
damage, liability, or action, suit or proceeding; provided, however, that the
Company will no be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission from the registration
statement, any preliminary prospectus, the prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by Consultant specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
13.2. Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, suit or proceeding, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
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under this Section. In case any such action, suit or proceeding is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
14. NOTICES
All notices required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given upon delivery personally
or by courier ( such as FedEx or similar express delivery service) to the party
to be notified. Notice to each party shall be addressed to the attention of the
officer at the address set forth beneath the signature line, or to such other
officer or addresses as either party may designate upon at least ten days'
notice to the other party.
15. GOVERNING LAW
This Agreement shall be constructed by and enforced in accordance with the
laws of the State of Florida.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement between the
parties. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard thereto. This Agreement may be amended
only in writing signed by both parties.
17. NON-WAIVER
A delay or failure by either party to exercise a right under this
Agreement, or a partial or single exercise of that right, shall not constitute a
waiver of that or any other right.
18. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed as an original, but all of which together shall constitute one and the
same agreement.
19. BINDING EFFECT
The provisions of this Agreement shall be binding upon the parties, their
successors and assigns.
20. EFFECTIVE DATE
The effective date of the Agreement is October 1, 1996.
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IN WITNESS WHEREOF, the parties here to have executed and delivered
this Agreement to be effective as of the day and year above written.
ADVANCED FINANCIAL, INC.
By: /S/ NORMAN L. PETERSON
------------------------------------
Norman L. Peterson, Chairman & CEO
5425 Martindale, Shawnee, KS 66218
AMBER CAPITAL CORPORATION
By: /S/ STEPHANIE S. ARNOLD
------------------------------------
Stephanie S. Arnold, President
2 Spur Lane, Rolling Hills, CA 90274
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