Exhibit 4.1
BUSINESS CONSULTING AGREEMENT
AGREEMENT made and entered into October 1, 2004, by and between Edward T.
Whelan, Individually of Grace Holdings, Inc. a Maryland Corporation with offices
located at 135 First Street, Keyport NJ 07735 and Whelan), and Marx Toys &
Entertainment Corp., a Nevada Corporation with offices located at 101 South 15th
Street, Sebring, OH 44672 ("MRXT").
W I T N E S S E T H:
WHEREAS, Grace and Whelan provide consultation and advisory services
relating to business management and marketing; and
WHEREAS, MRXT desires to utilize Whelan and Grace services in connection
with its operations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, Whelan/Grace and MRXT hereby agree as follows:
1. CONSULTING SERVICES. Effective as of October 1, 2004, by and subject to the
terms and conditions herein contained, Grace and Whelan shall provide business
management, marketing consultation and advisory services to MRXT. Such services
shall include (a) the preparation, implementation and monitoring of business and
marketing plans, (b) advice concerning production layout and planning and
internal controls and (c) such other managerial assistance as Whelan and Grace
shall deem necessary or appropriate for MRXT's business.
2. PAYMENT. In consideration for the services of Grace and Whelan to be provided
MRXT shall issue to 4,000,000 freely tradable MRXT shares. The shares are to be
issued in the name of Edward T. Whelan, SS# ###-##-####. MRXT shall grant to
Whelan the option to purchase an aggregate of 10,000,000 shares of common stock
of MRXT at the following prices: 5,000,000 shares at $0.005, 1,000,000 shares at
$0.01, 1,000,000 shares at $0.015, 1,000,000 shares at $0.02, 1,000,000 shares
at $0.025, and 1,000,000 shares at $0.03 for a total value of One Hundred Twenty
Five Thousand Dollars ($125,000) the shares shall be issued pursuant to a
registration statement or exemption such as S-8 and be freely tradable. Please
have all the certificates delivered to 135 First Street, Keyport NJ 07735. MRXT
shall in respect to each month during the term of this agreement issue a number
of restricted shares determined by dividing $6,000 by the product of 80% and the
average low price for MRXT common stock during such month. MRXT shall also issue
to Grace five-year options to purchase an equivalent number of shares of our
common stock at a price of 120% of the average low price per share.
3. EXPENSES. MRXT shall reimburse Whelan for all pre-approved travel and other
expenses incurred by it in rendering services hereunder, including any expenses
incurred by consultants when such consultants are temporarily located outside of
the metropolitan New York, area for the purpose of rendering services to or for
the benefit of MRXT pursuant to this Agreement. Whelan and Grace shall provide
receipts and vouchers to MRXT for all expenses for which reimbursement is
claimed.
4. INVOICES. All pre-approved invoices for services provided to MRXT and
expenses incurred by Whelan and Grace in connection therewith shall be payable
in full within ten (10) days of the date of such invoice. Payment of invoices
shall be made by check made payable to the individual rendering the pre-approved
service and mailed to 135 First Street, Keyport NJ 07735 within the allotted ten
(10) days.
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5. PERSONNEL. Whelan and Grace shall be an independent contractor and no
personnel utilized by Whelan and Grace in providing services hereunder shall be
deemed an employee of MRXT. Moreover, neither Whelan nor Grace nor any other
such person shall be empowered hereunder to act on behalf of MRXT. Whelan and
Grace shall have the sole and exclusive responsibility and liability for making
all reports and contributions, withholdings, payments and taxes to be collected,
withheld, made and paid with respect to persons providing services to be
performed hereunder on behalf of MRXT, whether pursuant to any social security,
unemployment insurance, worker's compensation law or other federal, state or
local law now in force and effect or hereafter enacted.
6. TERM AND TERMINATION. This Agreement shall be effective from October 1, 2004,
and shall continue in effect for a period of 6 months thereafter. This Agreement
may be renewed for a provisional six-month period thereafter, upon mutual
agreement of the parties.
7. NON-ASSIGNABILITY. The rights, obligations, and benefits established by this
Agreement shall not be assignable by either party hereto. This Agreement shall,
however, be binding upon and shall inure to the benefit of the parties and their
successors.
8. CONFIDENTIALITY. Neither Whelan nor Grace nor any of its consultants, other
employees, officers, or directors shall disclose knowledge or information
concerning the confidential affairs of MRXT with respect to MRXT's business or
finances that was obtained in the course of performing services provided for
herein.
9. LIMITED LIABILITY. Neither Whelan and Grace nor any of its consultants, other
employees, officers or directors shall be liable for consequential or incidental
damages of any kind to MRXT that may arise out of or in connection with any
services performed by Whelan and Grace hereunder.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without giving effect to the
conflicts of law principles thereof or actual domicile of the parties.
11. NOTICE. Notice hereunder shall be in writing and shall be deemed to have
been given at the time when deposited for mailing with the United States Postal
Service enclosed in a registered or certified postpaid envelope addressed 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.
12. NO OTHER AGREEMENTS. This Agreement supersedes all prior understandings,
written or oral, 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 the
parties hereto.
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This Agreement may be executed in counterparts, each of who shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument. IN WITNESS WHEREOF, MRXT, WHELAN AND MRXT HAVE DULLY EXECUTED
THIS AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
MARX TOYS & ENTERTAINMENT CORP.
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MR. ROBERT BAMBERY, PRESIDENT
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BY: EDWARD T. WHELAN, PERSONALLY
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