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EXHIBIT 4.1
EXECUTION COPY
PROFESSIONAL CONSULTING SERVICES AGREEMENT
This PROFESSIONAL CONSULTING SERVICES AGREEMENT (this "Agreement"),
effective as of July 2001 (the "Effective Date'), is entered into by and between
BIGMAR, INC., a Delaware corporation, with offices at 00 Xxxxxxx Xxxx, Xxxxxxx,
XX 00000 (the "Company") and Xxxxxx Xxxxxx, a resident of Illinois, with an
address at 0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000 ("Consultant").
RECITALS
WHEREAS, the Company desires to engage Consultant, and Consultant
desires to be engaged by the Company, to render professional consulting services
for the Company as set forth in Section 1 below.
NOW THEREFORE, for good and valuable consideration, Consultant and the
Company hereby agree as follows.
1. Service. Consultant agrees to perform the professional consulting
services for the Company as described in the Statement of Services attached
hereto as Exhibit A (the "Services").
2. Term. The parties intend that unless this Agreement is earlier
terminated in accordance with Section 7 hereof, this Agreement shall remain in
effect for a period of six (6) months (the "Term"), commencing on the Effective
Date. The parties may renew this Agreement for one or more additional six month
term under such terms and conditions as the parties may agree.
3. Consultant's Responsibilities. During the Term, Consultant shall
perform the Services in the location as determined by Consultant. Consultant
agrees to diligently and conscientiously perform the Services in accordance with
the generally accepted standards of the profession, Additional services may be
incorporated into this Agreement by a separate writing signed by both parties.
4. Compensation. In consideration for Consultant's performance of the
Services, Consultant shall receive from the Company 150,000 shares of the
Company's newly issued common stock, par value $0.001 per share (the "Shares").
Consultant shall have no other rights to receive any compensation for the
Services other than as provided in this Section 4.
5. Registration.
(a) The Company shall use its good faith and reasonable
commercial efforts to file with the Securities and Exchange Commission
and make effective under the Securities Act of 1933, as amended (the
"Securities Act"), a registration statement on Form S 8 with respect to
the Shares. The Company shall do my and all other acts and things that
may be reasonably necessary or advisable with respect to the
registration of the Shares.
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(b) In connection with and as a condition to the registration
of the Shares in accordance with this Section 5, Consultant understands
and agrees that the Services it performs shall not be in connection
with the offer or sale of the Company's securities in a capital raising
transaction, and that in performing such Services Consultant will not
directly or indirectly promote or maintain a market for the Company' a
securities. Consultant further understand and agree that the Services
shall not include: (i) providing investor relations or shareholder
communications services; (ii) conditioning the public market for resale
of the Company's securities; (iii) arranging or effecting mergers that
take private companies public; or (iv) disseminating information that
may be expected to influence the price of the Company's securities,
such as promoting the Company's securities in an investor newsletter.
6. Representations and Warranties of Consultant. Consultant hereby
represents and warrants to the Company as follows:
(a) Accredited Investor Status. Consultant is an accredited
investor as such term is defined in Regulation D under the Securities
Act.
(b) Restricted Shares. Consultant acknowledges that the Shares
have not been registered under the Securities Act or under the
securities laws of certain states and, therefore, cannot be resold,
pledged, assigned or otherwise disposed of until such Shares are
registered under the Securities Act in accordance with Section 5(a)
hereof or an exemption from such registration is available.
7. No Reimbursement of Expenses. Consultant is responsible for all
expenses incurred by Consultant in performing the Services. The Company shall
have no obligation to cover any expenses incurred by Consultant in performing
the Services, including the compensation of any Providers (as such term. is
defined in the Statement of Services attached hereto as Exhibit A). Consultant
shall have no other rights to receive any compensation for the Services other
than as provided in Section 4 hereof.
8. Termination of Consultancy. The Consultant's obligation to provide
the Services under Section 1 hereof and the Company's obligation to effect the
registration of the Shares in accordance with Section 5 hereof (to the extent
such Shares have not been registered) shall. cease immediately upon the
occurrence of any of the following events (the date of each such occurrence
shall constitute the effective date of termination of this Agreement (the
"Termination Date"):
(a) expiration of the Term;
(b) at any time that there shall be a material breach by
Consultant of this Agreement; provided that the Company, shall give
Consultant fifteen (15) days' prior written notice and an opportunity
to cure such breach prior to the date of such termination.
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Upon termination of this Agreement pursuant to the above provisions, Consultant
shall immediately return to the Company, without charge, all Confidential
Information (as defined below). Upon receipt of such Confidential Information,
the Company shall pay Consultant any compensation to which Consultant is then
entitled for the Services, to the extent not previously paid by the Company.
9. Development and Owners of Creative Works; Copyrighted Works.
Consultant shall keep the Company or its nominee informed of, promptly disclose
and assign (at the Company's request) to the Company all works of authorship or
other creative works, ideas, knowledge and data, including but not limited to
the corporate growth plan (as described in Exhibit A), whether patentable or
not, that Consultant individually or jointly with others originated, developed,
made, conceived, acquired, first reduced to practice or suggested during the
Term. which are based in whole or in part on the Company's business or
activities. Consultant understand, and agreed that all copyrighted works created
or contributed to within the scope of, or in connection with Consultant s
retention by the Company, or at the request of the Company, shall be considered
works made for hire under the federal copyright laws of the United States and
shall be the exclusive property of the Company, which shall be considered the
author of such copyrighted works.
10. Confidential Information. Consultant shall not disclose or use at
any time, either during the Term or after the Termination Date, any nonpublic
corporate or business confidential information of the Company, whether
patentable or not, which Consultant learns as a result of performing the
Services, whether or not Consultant developed such information (the
"Confidential Information"). Confidential Information shall at all times the
property of the Company.
Consultant may use or disclose confidential information only:
(a) as authorized and necessary in performing Consultant's
responsibilities under this Agreement during the Term;
(b) with the Company's prior written consent;
(c) in a legal proceeding between Consultant and the Company
to establish the rights of either party under this Agreement; provided
that Consultant stipulates to a protective order to prevent any
unnecessary use or disclosure; or
(d) subject to a compulsory legal process that requires
disclosure of such information; provided that Consultant has notified
the Company of such compulsory legal process to ensure that the Company
has an adequate opportunity to protect its legal interests in
preventing disclosure.
Consultant hereby acknowledges that any breach of this Section
9 would cause the Company irreparable harm.
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11. Non-Solicitation and Non-Competition. During the Term and for a
period of six (6) months after the Termination Date, Consultant shall not,
except with the prior written consent of the Company:
(a) directly or indirectly, individually or as part of or on
behalf of any other person, employer or entity, hire or attempt to
solicit for hire, any persons who are employed by the Company and with
whom Consultant had contact while performing the Services, at any time
until at least three (3) months after such person's employment with the
Company ends;
(b) directly or indirectly, on behalf of Consultant or any
other person, entity or employer, sell or otherwise provide, or solicit
for the purposes of selling or otherwise providing, any device or
product that in each case is similar or related to those to be sold or
provided by the Company, in connection with Consultant's providing
Services under this Agreement, as of the Termination Date to any person
or entity; or
(c) directly or indirectly, own, manage, operate, control, be
employed by, participate in. advise. consult or contract with, or be
connected in any manner with the ownership, management, operation, or
control of any business that develops, distributes, sells, or markets
any device or product that in each case is directly competitive,
similar or related to those developed, distributed, sold or marketed by
the Company in connection with Consultant's providing Services under
this Agreement, within the geographical area in which, as of the
Termination Date, the Company is actively marketing or has made a
significant investment in time and money to prepare to market its
products within the ninety (90) day period after the Termination Date.
Unless otherwise specified in writing from the Company to
Consultant, the Company's engagement of Consultant shall be
non-exclusive.
12. Indemnification. Consultant agrees to indemnify and hold the
Company harmless from any and all claims, demands, actions and liabilities,
including costs and attorneys' fees, as the result of any action or inaction or
claim which arises as a result of Consultant's conduct or any Provider's
conduct, or the conduct of any agent of Consultant or the conduct of any agent
of any Provider whether pursuant to this Agreement, as a result of tort, or as a
result of any other relationship between Consultant and the Company.
13. No Conflict. Consultant warrants and represents to the Company that
neither the entering into this Agreement nor the performance of any of its
obligations under this Agreement will conflict with or constitute a breach of
any obligations of Consultant under any agreement, whether written or oral, to
which Consultant is a party or any other obligation by which Consultant is
bound.
14. Injunctive Relief. Consultant acknowledges that money damages alone
will not adequately compensate the Company for any breach of Sections 8, 9 and
10 of this Agreement and, therefore, Consultant agrees that in the event of the
breach or threatened breach of any such
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covenant or agreement, in addition to all other remedies available to the
company, the Company shall be entitled to injunctive relief compelling specific
performance of, or other compliance with, the terms hereof.
15. Independent Contractor Relationship. Consultant is hereby retained
and engaged by the Company only for the purposes and to the extent set forth in
this Agreement. Consultant and the Company agree that no employment relationship
is created by this Agreement. The Company is interested only in the results to
be achieved by Consultant's performance of the Services. Consultant is an
independent contractor and shall be solely responsible for securing and
maintaining worker's compensation insurance, if legally required. Consultant is
not entitled to any of the benefits that the Company provides its employees.
16. Consultant's Tax Obligations. To the extent required by law,
Consultant shall be solely responsible for and shall make proper and timely
payment of any taxes due on payments made, to persons who provide services to
Consultant in connection with this Agreement, Consultant hereby agrees to
indemnify the Company against any claims, liabilities or expenses the Company
incurs as a result of Consultant's breach of its obligations under this Section
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17. Notices. All hereunder shall be in writing and shaft be delivered
by hand, facsimile transmission, overnight delivery or by certified or
registered mail addressed as follows:
If to the Company:
BigMar, Inc.
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President
Telecopier: (000) 0000000
If to Consultant:
Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
or to such other addresses as the parties hereto may from time-to-time designate
in writing. Notice shall be deemed given on the same day if delivered by hand or
sent by facsimile transmission, on the following business day if sent by
overnight delivery or the second business day following the date of mailing.
18. Miscellaneous. Regardless of the choice of law provisions of the
State of Delaware or any other jurisdiction, the parties agree that this
Agreement shall otherwise be interpreted, enforced and governed by the laws of
the State of Delaware. Consultant may not assign this Agreement without the
prior written consent of the Company. This Agreement shall inure to the benefit
of and may be enforced by the Company and its assigns, successors and legal
representatives and shall be binding on Consultant and its assigns, successors
and legal representatives. This Agreement may be executed in two counterparts
each of which shall be an
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original, but all of which together shall constitute one instrument. This
Agreement may only be modified in writing and when signed by all parties to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written,
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title:
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BIGMAR, INC.
By: /s/ Xxxxxxx X. May
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Name: Xxxxxxx X. May
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Title: President and Secretary
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EXHIBIT A
STATEMENT OF SERVICES
A. Services. As a consultant to the Company, Consultant shall provide
the Mowing services for the Company during the Term, subject to the terms and
conditions of this Agreement:
(i) Conduct business development activities and strategic
planning, including development and implementation of
a two-year corporate growth plan, and formulate
acquisition strategies;
(ii) Perform public relations services, including
formulating press releases and providing other media
relations recommendations;
(iii) Provide advice and assistance on corporate imaging
and advertising in order to raise awareness of the
Company's product line with the public;
(iv) Undertake logistical and administrative services in
connection with organizing and conducting corporate
presentations by the Company's officers to be
delivered to industry groups and participants and the
public; and
(v) Review and provide recommendations on the Company's
(i) capital structure; (ii) stock patterns; (iii)
external community relations; and (iv) financial
proposals.
B. Providers. In connection with performing the Services described in
Section A above, Consultant is permitted to select and engage appropriate
third-party providers for public relations, strategic planning and other
corporate related consulting and professional services (the "Providers"). If
Consultant elects to select and engage any Providers, Consultant understands and
agrees that Consultant shall: (a) be responsible for evaluating, coordinating
and supervising the efforts of such Providers; and (b) provide oversight to the
extent such Providers are providing the Services set forth above. Consultant
further understands and agrees that Consultant shall ensure that such Providers:
(a) meet the expectations of the Company, and (b) agree to the same terms and
conditions of this Agreement, including without limitation Sections 8, 9 and 10
hereof.
