Exhibit 4.1
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of November 18th,
2003 ("Effective Date") by and between MILLENIUM HOLDING GROUP, INC., a Nevada
Corporation (the "Company"), and Camden Holdings Inc., a Nevada Corporation
("Consultant").
RECITALS
WHEREAS, the Company and Consultant desire to work together for the
purposes of consultant providing advice, consultant services and Company
retaining consultant for advice in the acquisitions of certain companies and
business opportunities.
WHEREAS, the Company wishes to retain Consultant, and Consultant wishes to
be retained by the Company to assist the Company in meeting the objectives
identified herein.
WHEREAS, it is agreed that consultant will be able to assign all or a
portion of the services within this agreement to third parties which are
officers, agents, or consultants of the consultant. In which case, the payment
for services may be directly to those third parties.
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
agreements, representations and warranties hereinafter contained, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Consultant agree as follows:
1. RETENTION. The Company hereby agrees to retain Consultant and
Consultant agrees to be available to serve the Company during the
Consulting Period (as hereinafter defined), as a consultant and
advisor, which shall include such reasonable consulting and advisory
services for the Company as may be requested by the Company or someone
acting pursuant to its authorization.
2. DUTIES OF CONSULTANT. The Consultant agrees to perform the consulting
services (the "Services") set forth for the purposes of mergers,
acquisitions, and locating companies, which can be purchased by the
company. Consultant shall perform the services and shall devote such
time and attention to consulting and advising as shall be reasonably
requested by the Company. Consultant may, at Consultant's own expense,
use employees or other subcontractors to assist Consultant with the
performance of the services. It is agreed that consultant shall bring
to the Company acquisitions which having the following parameters. No
negative cash flow, valuation of at least two million dollars, and no
outstanding debt, and no material litigation.
3. TERM. The consulting period shall commence as of the effective date of
this Agreement, and shall continue for a period of one year (the
"Consulting Period").
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4. STATUS OF CONSULTANT. Consultant understands and agrees that
Consultant is not an employee of the Company and that Consultant is
not entitled to receive employee benefits from the Company, including,
but not limited to, sick leave, vacation, retirement, death benefits
or automobile expense. Consultant shall be responsible for providing,
at Consultant's expense and in Consultant's name, disability, worker's
compensation or other insurance as well as licenses and permits usual
or necessary for conducting the services hereunder. Furthermore,
Consultant shall pay, when and as due, any and all taxes incurred as a
result of Consultant's compensation hereunder, including estimated
taxes, and shall provide Company with proof of said payments, upon
demand. Consultant hereby agrees to indemnify the Company for any
claims, losses, costs, fees, liabilities, damages or injuries suffered
by the Company arising out of Consultant's breach of this Section 4.
5. COMPENSATION. The Company shall compensate Consultant with the payment
of Five Hundred Thousand Dollars ($500,000) as a fee (the "Consulting
Fee"). This fee is due upon execution of this agreement, subject to
the filing of the S-8 Plan. This fee is subject to the parameters of
section 2. This fee is full payment for all services rendered by
Consultant. There shall be no additional fees due to consultant.
Pursuant to section 2 of this agreement. Payment of amounts due
pursuant to this Fee in cash compensation, in US dollars ("Cash
compensation"), provided, however, that the Company shall have the
right, in it's sole discretion, to pay said Consulting Fee in Cash
Compensation or to issue to Consultant shares of common stock of the
Company of an equivalent value in lieu of Cash Compensation, which
shares are registered on Form S-8 pursuant to the Company's 2003
Consultant Equity Plan. In the event payment is made pursuant to an
S-8 plan, the plan must be filed, and approved with the shares to be
delivered to Consultant within 5 days after execution of this
agreement. The fee shall be determined based upon the bid price of the
stock as of the Effective Date of this Agreement.
6. TERMINATION ON NOTICE. The Company may terminate this Agreement at any
time by giving fifteen (15) days written notice to Consultant.
Consultant shall have the obligation to provide services up to and
until the effective date of such termination, should the Company
request such services in writing. In the event of this termination all
fees, which are paid to consultant will be considered earned and fully
paid. Consultant shall be under no obligation to return any
compensation received.
7. AUTOMATIC TERMINATION. This Agreement terminates automatically on the
occurrence of the death or disability of Consultant, or upon mutual
termination by both parties.
8. RETURN OF COMPANY PROPERTY. Upon the termination or expiration of this
Agreement, consultant shall immediately transfer to the Company all
files (including, but not limited to, electronic files), records,
documents, drawings, specifications, equipment and similar items in
Consultant's possession relating to the business of the Company or its
Confidential Information (as defined herein) (including the work
product of Consultant created pursuant to this Agreement).
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9. PROPERTY BELONGING TO COMPANY. Consultant agrees that all
developments, ideas, devices, improvements, discoveries, apparatus,
practices, processes, methods, concepts and products (collectively the
"Inventions") developed by Consultant during the term of this
Agreement are the exclusive property of the Company and shall belong
to the Company. Consultant agrees to assign the Inventions to the
Company, provided, however, notwithstanding the foregoing, Consultant
shall not be required to assign its rights in any invention which
Consultant developed entirely on Consultant's own time without using
the Company's equipment, supplies, facilities or trade secret
information except for those inventions that either (i) relate at the
time of conception or reduction to practice of the invention to the
Company's business, or actual or demonstrably anticipated research of
development of the Company or (ii) result from any work performed by
Consultant for the Company.
10. ACCESS TO CONFIDENTIAL INFORMATION. Consultant agrees that during the
term of the business relationship between Consultant and the Company,
Consultant will have access to and become acquainted with confidential
proprietary information ("Confidential Information"), which is owned
by the Company and is regularly used in the operation of the Company`s
business. Consultant agrees that the term "Confidential Information"
as used in this Agreement is to be broadly interpreted and includes
(i) information that has, or could have, commercial value for the
business in which the Company is engaged, or in which the Company may
engage at a later time, and (ii) information that, if disclosed
without authorization, could be detrimental to the economic interests
of the Company. Consultant agrees that the term "Confidential
Information" includes, without limitation, any patent, patent
application, copyright, trademark, trade name, service xxxx, service
name, "know-how," negative "know-how", trade secrets, customer and
supplier identities, characteristics and terms of agreement, details
of customer or consultant contracts, pricing policies, operational
methods, marketing plans or strategies, product development techniques
or plans, business acquisition plans, science or technical
information, ideas, discoveries, designs, computer programs (including
source codes), financial forecasts, unpublished financial information,
budgets, processes, procedures, formulae, improvements or other
proprietary or intellectual property of the Company, whether or not
written or tangible form, and whether or not registered, and including
all memoranda, notes, summaries, plans, reports, records, documents
and other evidence thereof. Consultant acknowledges that all
Confidential Information, whether prepared by Consultant or otherwise
acquired by consultant in any way, shall remain the exclusive property
of the Company.
11. NO UNFAIR USE BY CONSULTANT. Consultant promises and agrees that
Consultant (which shall include Consultant's employees and
contractors) shall not misuse, misappropriate, or disclose in any way
to any person or entity any of the Company's Confidential Information,
either directly or indirectly, nor will Consultant use the
Confidential Information in any way or at any time except as required
in the course of Consultant's business relationship with the Company.
Consultant agrees that the sale or unauthorized use of the Company's
Confidential Information constitutes unfair competition. Consultant
promises and agrees not to engage in any unfair competition with the
Company and will take measures that are appropriate to prevent its
employees or contractors from engaging in unfair competition with the
Company.
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12. FURTHER ACTS. Consultant agrees that, at any time during the term of
this Agreement or any extension thereof, upon the request of the
Company and without further compensation, but at no expense to
Consultant, Consultant shall perform any lawful acts, including the
execution of papers and oaths and the giving of testimony, that in the
opinion of the Company, its successors or assigns, may be necessary or
desirable in order to obtain, sustain, reissue and renew, and in order
to enforce perfect, record and maintain, patent applications and
United States and foreign patents on the Company's inventions, and
copyright registrations on the Company's inventions.
13. OBLIGATIONS SURVIVE AGREEMENT. Consultant's obligations under this
agreement shall survive the expiration or termination of this
Agreement for a period of five (5) years.
14. REPRESENTATIONS BY CONSULTANT. Consultant represents that Consultant
has the qualifications and ability to perform the services in a
professional manner, without the advice, control or supervision of the
Company. Consultant shall indemnify, defend and hold harmless the
Company, and the Company's officers, directors and shareholders from
and against any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies,
including, without limitation, interest, penalties and reasonable
attorney fees and costs, that the Company may incur or suffer and that
arise, result from or are related to any breach or failure of
Consultant to perform any of the representations, warranties and
agreements contained in this Agreement. Consultant is providing these
services only for advisory work involving mergers and acquisitions and
potential business combinations.
15. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES BY CONSULTANT; COMPANY'S
RIGHT TO ASSIGN. Consultant's rights and benefits under this Agreement
are personal to Consultant and therefore no such right or benefit
shall be subject to voluntary or involuntary alienation, assignment or
transfer. However, the consultant will be allowed as part of this
agreement to assign any and all of the payment of the services to
third parties, agents, officers, employees, and other consultants in
its efforts to provide services as pursuant to this agreement.
16. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with
respect to the subject matter hereof and contains all of the covenants
and agreements between the parties with respect to the services to be
rendered by Consultant to the Company in any manner whatsoever. Each
party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been
made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding on either
party.
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17. WAIVER. No waiver of any term or provisions of this Agreement will be
valid unless such waiver is in writing signed by the party against
whom enforcement of the waiver is sought. No waiver or breach of any
agreement or provision of this Agreement shall be deemed a waiver of
any preceding or succeeding breach thereof or a waiver or
relinquishment of any other agreement or provision or right or power
contained in this Agreement.
18. NO THIRD PARTY BENEFICIARY. Nothing in this Agreement, whether
expressed or implied, is intended to create any third party
beneficiary obligations and the parties hereto specifically declare
that no person or entity, other than as set forth in this Agreement,
shall have any rights hereunder or any right of enforcement hereunder.
19. SEVERABILITY. If any term or provision of this Agreement is found to
be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event
(i) the performance of the offending term or provision (but only to
the extent its application is invalid, illegal or unenforceable) shall
be excused as if it had never been incorporated in to this Agreement,
and, in lieu of such excused provision as may be possible and be
legal, valid and enforceable, and (ii) the remaining part of this
Agreement shall not be affected thereby and shall continue in full
force and effect to the fullest extent provided by law.
20. PREPARATION OF AGREEMENT. It is acknowledged by each party that such
party either had separate and independent advice of counsel or the
opportunity to avail itself or himself of same. In light of these
facts it is acknowledged that no party shall be construed to be solely
responsible for the drafting hereof, and therefore any ambiguity shall
not be construed against any party as the alleged draftsman of this
Agreement.
21. NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given (i) on the date of service if served personally on the
party to whom notice is to be given, (ii) by private
airborne/overnight delivery service or on the fifth day after mailing
if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed
as follows:
To Consultant: Camden Holdings, Inc.
0000 Xxxxxxxx Xxxx., Xxx. 000
Xxxxxxx Xxxxx, XX 00000
000 000-0000
To Company: Millenium Holding Group, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
000 000-0000
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22. ATTORNEYS' FEES AND COSTS. In the event that any legal proceeding is
brought to enforce or interpret any of the rights or obligations under
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements in addition to any
other relief to which the prevailing party may be entitled.
23. GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Venue for a legal or equitable action between the Company and
Consultant, which relates to this Agreement shall be in the county of
Los Angeles.
24. REMEDIES. It is understood and agreed that this Agreement is intended
to confer a benefit, directly or indirectly, on the Company and that
any breach will result in termination of this agreement.
25. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first indicated above.
COMPANY
Millenium Holding Group, Inc.
By: /s/ Xxxxxxx Xxx
-----------------------------
Name: Xxxxxxx Xxx
Title: President
CONSULTANT
Camden Holdings, Inc
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
Title: President
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