EXHIBIT 4.8
PROVIDENTIAL HOLDINGS, INC.
CONSULTING AGREEMENT
This agreement is made and entered into on the 4th day of August, 2000,
between Providential Holdings, Inc. ("Company"), a California corporation,
having offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000 and OVS,
Incorporated ("Consultant"), a California corporation, having offices at 0000
Xxxxx Xx Xxxxx, Xxx Xxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. THE SERVICES
The Consultant agrees to provide strategic and tactical direction
and guidance to the Company and assist the Company in international relations,
international product development and international market distribution.
Consultant will specifically be responsible for development of the company
product line and corporate image in Central America, South America and Europe.
Responsibilities will also include research into potential merger or acquisition
candidates from the international marketplace.
2. WORK FOR HIRE
a. It is the intention of the parties hereto that all rights,
including without limitation copyright in any reports, surveys, marketing
promotional and collateral materials prepared by the Consultant pursuant to the
terms of this Agreement, or otherwise for Company (hereinafter "the Work") vest
in Company. The parties expressly acknowledge that the Work was specially
ordered or commissioned by Company, and further agree that it shall be
considered a "Work Made for Hire" within the meaning of the copyright laws of
the United States and that Company is entitled as author to the copyright and
all other rights therein, throughout the world, including, but not limited to,
the right to make such changes therein and such uses thereof, as it may
determine in its sole and absolute discretion.
b. If, for any reason, the Work is not considered a work made
for hire under the copyright law, then the Consultant hereby grants and assigns
to Company, its successors and assigns, all of its rights, title, and interest
in and to the Work, including, but not limited to, the copyright therein
throughout the world (and any renewal, extension or reversion copyright now or
hereafter provided), and all other rights therein of any nature whatsoever,
whether now known or hereafter devised, including, but not limited to the right
to make such changes therein, and such uses thereof, as Company may determine.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information"
shall mean any information relating to the business of Company or any entity in
which Company has a controlling
interest and shall include (but shall not be limited to) information
encompassed in all drawings, designs, programs, plans, formulas, proposals,
marketing and sales plans, financial information, costs, pricing information,
customer information, and all methods, concepts or ideas in or reasonably
related to the business of Company.
b. Consultant agrees to regard and preserve as confidential,
all proprietary information, whether Consultant has such information in memory
or in writing or other physical form. Consultant shall not, without written
authority from Company to do so, directly or indirectly, use for the benefit or
purposes, nor disclose to others, either during the term of its engagement
hereunder or thereafter, except as required by the conditions of Consultant's
engagement hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations,
conclusions or other results of the Services or the existence or the subject
matter of this contract without the prior written consent of Company. In
Consultant's performance hereunder, Consultant shall comply with all legal
obligations it may now or hereafter have respecting the information or other
property of any other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set
forth in this Paragraph are being given to Company in connection with the
engagement of the Consultant by Company and that such covenants are intended
to protect Company against the competition by the Consultant, within the
terms stated, to the fullest extent deemed reasonable and permitted in law
and equity. In the event that the foregoing limitations upon the conduct of
the Consultant are beyond those permitted by law, such limitations, both as
to time and geographical area, shall be, and be deemed to be, reduced in
scope and effect in the maximum extent permitted by law.
e. The foregoing obligations of this Paragraph shall not apply
to any part of the information that (i) has been disclosed in publicly available
sources of information, (ii) is, through no fault of the Consultant, hereafter
disclosed in publicly available sources of information, (iii) is now in the
possession of Consultant without any obligation or confidentiality, or (iv) has
been or is hereafter lawfully disclosed to Consultant by any third party, but
only to the extent that the use or disclosure thereof has been or is rightfully
authorized by that third party.
4. INJUNCTIVE RELIEF
Consultant acknowledges that the injury to Company resulting from
any violation by it of any of the covenants contained in this Agreement will be
of such a character that it cannot be adequately compensated by money damages,
and, accordingly, Company may, in addition to pursuing its other remedies,
obtain an injunction from any court having jurisdiction of the matter
restraining any such violation; and no bond or other security shall be required
in connection with such injunction.
5. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant a consulting fee in the
form of restricted and unrestricted stock. The Company will therefore issue
to consultant Five Hundred Thousand (500,000) shares of stock upon the
execution of this Agreement. The Company will use its best efforts to file a
registration statement on Form S-8 covering the aforesaid stock. In
addition, the Company will therefore issue (250,000) shares of the Company's
Common Stock, exercisable in a
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period of less than 12-months with piggy-back restriction rights to be
converted into free trading shares.
b. The Consultant shall provide to the Company on the first
day of every month an outline report as to the Services that will be performed
that month. Within ten (10) days from the end of each and every month,
Consultant will provide to Company a statement as to the work that was performed
for the prior month.
c. If in reviewing the statements made by the Consultant to
the Company that are required within ten (10) days after the close of a business
month, Company determines that Consultant is not making sufficient progress in
order to complete work for which Consultant was hired within a reasonable time,
the Company will give written notice to Consultant. Consultant shall have
fifteen (15) days to complete the work required and provide further reports to
the Company.
6. BENEFITS
The Consultant, as an independent contractor, shall not be
entitled to any other benefits other than the fees and reimbursement of expenses
provided under Paragraph 5 of this Agreement.
7. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent
contractor and not an employee of the Company and that it is Consultant's sole
obligation to report as income all compensation received from Company pursuant
to this Agreement. The Consultant further agrees that the Company shall not be
obligated to pay withholding taxes, social security, unemployment taxes,
disability insurance premiums, or similar items, in connection with any payments
made to the Consultant pursuant to the terms of this Agreement.
8. TERM
This Agreement shall be effective beginning as of August 4, 2000,
and shall continue until date of delivery of completed product and Services;
provided, however, that either Company or Consultant may terminate this
Agreement in whole or in part at any time upon thirty (30) days' written notice
to the other party. In the event of termination or upon expiration of this
Agreement, Consultant shall return to Company any and all equipment, documents
or materials, and all copies made thereof, which Consultant received from
Company for the purposes of this Agreement and the Company shall pay to
Consultant the amounts provided in Paragraph 5 hereof through the date of such
termination or expiration.
9. INDEMNIFICATION
The Consultant shall indemnify and save Company harmless from and
against all claims arising in favor of any person, firm or corporation on
account of personal injury or property damage in any way resulting from the
improper or illegal acts of Consultant, its employees or agents. The foregoing
indemnity shall include all costs incurred by Company, including reasonable
attorneys' fees.
10. NOTICES
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All notices and xxxxxxxx shall be in writing and sent via first
class mail to the respective addresses of the parties set forth at the beginning
of this Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
11. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof
shall survive the termination of this Agreement or completion of the Services as
the case may be.
b. Neither the Company nor Consultant shall assign this
Agreement or delegate its duties hereunder and shall not subcontract any of the
Services to be performed hereunder without the prior written consent of the
other party hereto.
c. Consultant shall perform the Services as an independent
contractor and shall not be considered an employee of Company or Partner, joint
venturer or otherwise related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State
of Ohio.
e. This Agreement constitutes the entire understanding between
Consultant and Company respecting the Services described herein. The terms and
conditions of any purchase order shall have no effect upon this Agreement and
shall be used for accounting purposes only.
f. The failure of either party to exercise its rights under
this Agreement shall not be deemed to be a waiver of such rights or a waiver of
any subsequent breach.
g. Any delay or nonperformance of any provision of this
Agreement caused by conditions beyond the reasonable control of the
performing party shall not constitute a breach of this Agreement, provided
that the delayed party has taken reasonable measures to notify the other of
the delay in writing. The delayed party's time for performance shall be
deemed to be extended for a period equal to the duration of the conditions
beyond its control. "Conditions beyond a party's reasonable control"
include, but are not limited to, natural disasters, acts of government after
the date of the Agreement, power failure, fire, flood, acts of God, labor
disputes, riots, acts of war and epidemics. Failure of subcontractors and
inability to obtain materials shall not be considered a condition beyond a
party's reasonable control.
h. NON-SOLICITATION OF CONSULTANT'S EMPLOYEES: Company agrees
not to knowingly hire or solicit Consultant's employees during performance of
this Agreement and for a period of two years after termination of this Agreement
without Consultant's written consent.
i. MEDIATION AND ARBITRATION: If a dispute arises under this
Agreement, the parties agree to first try to resolve the dispute with the help
of a mutually agreed-upon mediator in Orange County, California. Any costs and
fees other than attorney fees associated with the mediation shall be shared
equally by the parties. If the dispute is not resolved through mediation, the
parties agree to submit the dispute to binding arbitration in Orange County,
California under the rules of the American Arbitration Association. Judgment
upon the award rendered by the arbitrator may be entered in any court with
jurisdiction to do so.
j. ATTORNEY FEES: If any legal action is necessary to enforce
this Agreement, the prevailing party shall be entitled to reasonable attorney
fees, costs and expenses.
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k. COMPLETE AGREEMENT: This Agreement together with all
exhibits, appendices or other attachments, which are incorporated herein by
reference, is the sole and entire Agreement between the parties. This Agreement
supersedes all prior understandings, agreements and documentation relating to
such subject matter. In the event of a conflict between the provisions of the
main body of the Agreement and any attached exhibits, appendices or other
materials, the Agreement shall take precedence. Modifications and amendments to
this Agreement, including any exhibit or appendix hereto, shall be enforceable
only if they are in writing and are signed by authorized representatives of both
parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
Signature: /s/ Xxxxx Xxxxxx Date: August 4, 2000
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Xxxxx Xxxxxx
Chief Executive Officer
Providential Holdings,
Inc.
Signature: /s/ Xxxx Xxxxxxx Date: August 4, 2000
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Xxxx Xxxxxxx
President
OVS, Inc.
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