Exhibit 4.1 / Consulting Agreement
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of May 21, 2001 between Digital Commerce
International, Inc., a Delaware corporation (the "Company") having an office at
0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX, Xxxxxx, X0X 0X0 and Xxxxxxx Xxxxxx,
having an office at 000 X. 0xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000
("Xxxxxx" or the "Consultant").
WITNESSETH:
WHEREAS, the Company wishes to retain Consultant to provide
the Company with certain consulting services and Consultant is willing to
provide such consulting services, on the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the foregoing premises and
of the mutual covenants and agreements hereinafter contained, the parties hereby
agree as follows:
Section 1. Retention of Xxxxxx. The Company hereby retains and engages
Xxxxxx, and Xxxxxx hereby accepts such engagement, in each case subject to the
terms and conditions of this Agreement.
Section 2. Services.
(a) On the terms and subject to the conditions herein contained, the Company
hereby engages Consultant as a consultant, and Consultant hereby accepts
such engagement.
(b) With regard to operations, strategic planning and business development, the
Consultant shall consult with the Company regarding:
i. developing new sources of business;
ii. identifying and analyzing possible strategic alliances and
acquisitions;
iii. public relations;
iv. evaluation and analysis of the Company's marketing plans and new
pharmaceutical products and packaging;
v. review of the business plans for the Company, including the
review of budgets and projections;
vi. a detailed evaluation of the Company's competition in new and
existing markets;
vii. analysis of information on a periodic basis concerning the
financial performance of the Company and the markets in which it
operates; and
viii.such other aspects of the business of the Company as Consultant
and the Company may agree from time to time.
(c) In connection with any proposal made by Xxxxxx pursuant to this Agreement,
the Company and Xxxxxx acknowledge that the Company shall not be obligated
to accept such proposal or further obligate itself hereunder.
Section 3. Compensation. The Company shall pay to Xxxxxx $96,000 as
compensation for the services specified in Section 2 hereof. The Company
acknowledges that it does not currently have the financial ability to pay for
Xxxxxx'x services in cash. Therefore, in lieu of such cash payment and in
consideration of services heretofore rendered, and to be rendered by Xxxxxx,
pursuant to this Agreement, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged by the Company, the
Company, concurrently with the execution hereof, shall issue to Xxxxxx 1,200,00
shares (the "Shares") of the Company's common stock, par value $0.01 per share
(the "Common Stock").
Section 4. Non-Competition. Xxxxxx acknowledges that in the course of
its engagement it will become familiar with trade secrets and other confidential
information (collectively, "Confidential Information") concerning the Company
and that its services will be special, unique and extraordinary to the Company.
Subject to the limitations set forth herein, Xxxxxx agrees that during the Term
and for a period of one year thereafter it shall not directly or indirectly own,
management, control, participate in, consult with, render services for, or in
any manner engaged in any business competing with the business of the Company as
such business exists within any geographical area in which the Company conducts
its business. In addition, Xxxxxx shall not solicit, interfere with or conduct
business with any vendors, customers or employees of the Company during the term
of this Agreement or for a period of one year after the termination hereof. In
the event the Company breaches any of its duties or obligations under this
Agreement, except for the provisions of the immediately following sentence.
Xxxxxx agrees that it shall not disclose to any third party any Confidential
Information and shall not use any Confidential Information for any purpose other
than the performance of its duties under this Agreement.
Section 5. Term. This Agreement shall be for a term of ninety (90) days
commencing on the date hereof.
Section 6. Representations and Warranties of Xxxxxx.
(a) Xxxxxx represents and warrants to the Company that it is not acquiring the
Securities with a view to, or for resale in connection with, any
distribution in violation of the Securities Act of 1933, as amended.
(b) Xxxxxx represents and warrants to the Company that:
x. Xxxxxx is a natural person;
ii. Xxxxxx shall provide bonafide services to the Company
pursuant to this Agreement; and
iii. the services to be provided pursuant to this Agreement are
not in connection with the offer or sale of securities and
do not directly or indirectly promote or maintain a market
for the Company's securities.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless Xxxxxx and its directors,
officers and affiliates against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (and all actions, suits, proceedings and investigations in
respect thereof and any and all legal or other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including without limitation, the costs, expenses,
and disbursements, as and when incurred, of investigating, preparing or
defending any such action, proceeding or investigation (whether or not in
connection with litigation to which Xxxxxx is a party), directly or
indirectly, caused by, relating to, based upon, arising out of or in
connection with information provided by the Company which contains a
material misrepresentation or material omission in connection with the
provision of services by Xxxxxx under this Agreement; provided, however,
such indemnity agreement shall not apply to any portion of any such loss,
claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of Xxxxxx. The Company also agrees that Xxxxxx shall not have
any liability (whether direct or indirect in contract or tort or otherwise)
to the Company or to any person (including, without limitation, Company
shareholders) claiming through the Company for or in connection with the
engagement of Xxxxxx, except to the extent that any such liability results
from Xxxxxx'x gross negligence or willful misconduct. This indemnification
shall survive the termination of this Agreement.
(b) Each party entitled to indemnification under this agreement (the
"Indemnified Party"), shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
any litigation resulting therefrom, shall be approved by the Indemnified
Party may participate in such defense at such party's expense, and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 8. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and any litigation resulting
therefrom.
Section 8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to the conflict of law principles thereof.
Section 9. Entire Agreement; Amendments. This Agreement contains the
entire agreement and understanding between the parties and supersedes and
preempts any prior understanding or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Xxxxxx.
Section 10. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of, and shall be enforceable by Xxxxxx and the
Company and their respective successors and permitted assigns.
Section 11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented personally, one business day after the date sent if
sent by prepaid telegram, overnight courier service, telex or facsimile
transmission or five business days if sent by registered or certified mail,
return receipt requested, postage prepaid which shall be addressed to the
following addresses:
If to the Company:
Digital Commerce International, Inc.
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx X0# 0X0
Attn: Xxxxxxx Xxxx, President
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Xxxxxx:
Xxxxxxx Xxxxxx
000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Section 12. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 13. Section and Other Headings. The section headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which together shall be deemed to be one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
May 21, 2001 as of the date first written above.
DIGITAL COMMERCE INTERNATIONAL, INC.
By:/s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: President
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
