1
EXHIBIT 4
CONSULTING AGREEMENT
AGREEMENT made this 1st day of March, 1999, by and between HECATE
HOLDINGS LIMITED, a corporation having its principal place of business at 000
Xxxxxx Xxxxxx, Xxxxxxx 000XX, Isle of Man, hereinafter referred to as the
"Consultant", and ENHANCED SERVICES COMPANY, INC., a corporation, having its
principal place of business at 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX
00000, hereinafter referred to as "Company".
WHEREAS, Consultant provides consulting services with respect to matters
concerning advertising and public relations to public and private corporations;
WHEREAS, the Company desires to engage the services of the Consultant for
purposes of creating and executing an advertising and public relations campaign
to enhance the exposure of the Company;
WHEREAS, Consultant wishes to accept such engagement; and
WHEREAS, the parties desire to set forth their respective rights, duties and
obligations to each other in writing;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein the parties agree as follows:
1. PERFORMANCE OF SERVICES
The services the Consultant agrees hereby to perform shall consist
generally of advertising and public relations with a goal toward enhancing
the financial community's knowledge, information and awareness of the
Company and its operations.
2. COMPENSATION AND EXPENSES
2.1 The Company shall issue to Consultant One Hundred Thousand (100,000)
shares of the common stock of the Company ("Common Shares") as
compensation during the Term.
2.2 During the Term Consultant will also be entitled to reimbursement of
previously approved expenses monthly in arrears upon submission of
receipts and expense vouchers to the Company.
3. TERM OF CONTRACT, TERMINATION
3.1 The term of this Agreement shall be for a period of One (1) year
("Term"), commencing on the day of date of execution of this
Agreement. On request, Consultant agrees to make itself available to
the company's subsidiaries and affiliated corporations.
3.2 This Agreement may not be terminated, except as provided herein.
4. REGISTRATION RIGHTS
Within five business days after the date hereof, the Company shall cause to
be prepared and filed with the Securities and Exchange Commission ("SEC") a
Registration Statement on Form S-8.
1
2
5. CONFIDENTIALITY
5.1 The parties hereto acknowledge that they may, during the course of
their performance of their obligations under this agreement, gain
access to, or knowledge of confidential or proprietary information
regarding another party, as well as trade secrets belonging to another
party, including the means and methods by which a party conducts its
business operations.
5.2 All parties therefore agree that they will at all times keep
absolutely secret and confidential and that they will not directly or
indirectly disclose to any person at any time or make any authorized
use of any parties confidential information, proprietary information,
or trade secrets, including the means and methods by which the parties
conduct their business operations.
6. DEFAULT
6.1 Upon a breach of any of the terms of this Agreement by one of the
parties hereto ("the defaulting party") the other party ("the
non-defaulting party") shall give written notice of such breach to the
defaulting party giving such party Seven (7) days to remedy such
breach.
6.2 If the breach is not remedied within the Seven (7) day period
aforesaid then the non-defaulting party shall in addition to its other
legal rights be entitled to terminate this Agreement.
7. TERMINATION
7.1 Either party shall be entitled to terminate this Agreement if one of
the parties commits or permits any one or more of the following acts
which will constitute a material breach of this Agreement:
7.1.1 The filing or failure to consent within Ten (10) days of service
any bankruptcy petition.
7.1.2 The liquidation or dissolution of any party.
7.1.3 The appointment of a voluntary administrator, receiver, for any
party.
7.1.4 Making an assignment for the benefit of creditors or making any
composition or arrangement with such creditors.
7.1.5 The violation of any law, ordinance, rule or regulation of any
government authority in connection with the services provided
herein, the operation of the Company, or the materials to be
distributed hereunder.
8. ASSIGNMENT
This Agreement shall not be assigned by either party without the prior
written consent of the other party.
9. CHOICE OF LAW
All disputes concerning the validity, interpretation, or performance of the
Agreement and any of its terms or provisions, or of any rights or
obligations of the parties hereto, shall be governed by and resolved in
accordance with the laws of the State of California.
2
3
10. ARBITRATION
10.1 Any controversy or claim arising out of or relating to this Agreement,
or any breach thereof, including without limitation, any claim that
this Agreement, or any part thereof, is invalid, illegal or otherwise
voidable or void, shall be submitted to arbitration in accordance with
the Commercial Rules of the American Arbitration Association;
provided, however that this clause shall not be construed to limit or
to preclude either party from bringing any action in any court of
competent jurisdiction for injunctive or other provisional relief as
necessary or appropriate. The arbitration shall be conducted in
California, or at the office of the American Arbitration Association,
which is closer to said location. Any award or determination of the
arbitration tribunal shall be final, non-appealable, and conclusive
upon the parties, and judgement thereon may be entered by any court of
competent jurisdiction.
10.2 ATTORNEY'S FEES, If any arbitration or other legal action is initiated
by either of the parties hereto, the prevailing party shall be
entitled to recover from the other party reasonable attorney's fees in
addition to any other relief that may be awarded.
11. NOTICES
11.1 All written notices permitted or required by the provisions of the
Agreement shall (unless otherwise provided) be deemed so delivered
when actually delivered by hand or when placed in United States Mail
by Registered Mail or Certified Mail, Return Receipt Requested,
postage prepaid and addressed to the following address.
If to Zulu: Enhanced Services Company, Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: General Counsel
Fax No. (000) 000-0000
If to Consultant: Hecate Holdings, Ltd.
c/o Trident Trust
000 Xxxxxx Xxxxxx
Xxxxxxx 000XX
Isle of Man
Attn: Xxxxxx Xxxxx
12. WAIVER AND DELAY
No waiver by either party of any breach or series of breaches or series of
breaches of defaults in performance by the other party, and no failure,
refusal or neglect of either party to exercise any right, power or option
given to it hereunder or to insist upon strict compliance with or
performance of either party's obligations under this Agreement, shall
constitute a waiver of the provisions of this Agreement with respect to any
subsequent breach thereof or a waiver by either party of its right at any
time thereafter to require exact and strict compliance with the provisions
thereof.
13. SUCCESSOR AND ASSIGNS
This Agreement shall be binding upon and incure to the benefit of the
successors and assigns of the parties hereto, subject to the restrictions
on assignment contained herein.
3
4
14. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions agreed upon by the
parties hereto with reference to the subject matter hereof. No other
Agreements, oral or otherwise, shall be deemed to exist or to bind either
of the parties hereto, and all prior agreements and understandings are
superseded hereby. This Agreement can not be modified or changed except by
written instrument signed by both of the parties hereto.
15. TITLES FOR CONVENIENCE
Titles used in this Agreement are for convenience only and shall not be
deemed to affect the meaning or construction of any of the terms,
provisions, covenants, or conditions of this Agreement.
16. SEVERABILITY
Nothing contained in this Agreement shall be construed as requiring the
commission of any act contrary to law. Whenever there is any conflict
between any provision of this Agreement and any present or future statute,
law, ordinance or regulation contrary to which the parties have no legal
right to contract, the latter shall prevail, but in such event the
provision of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the
law. In the event that any part, article, paragraph, sentence or clause of
this Agreement shall be held to be indefinite, invalid or otherwise
unenforceable, the indefinite invalid or unenforceable provisions shall be
deemed deleted, and the remains part of the Agreement shall continue in
full force and effect. If any tribunal or court of competent jurisdiction
deems any provision hereof unenforceable, such provision shall be modified
only to the extent necessary to render it enforceable and this Agreement
shall be valid and enforceable and the parties hereto agree to be bound by
and perform same as thus modified.
IN WITNESS WHEREOF, this Agreement was executed by the parties as of
the date first written above.
ENHANCED SERVICES COMPANY, INC.
By: /s/
-----------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------------
Title: Vice President & General Counsel
-----------------------------------------
HECATE HOLDINGS, LTD.
By: /s/
-----------------------------------------
Name: Xxxxxx Xxxxx
-----------------------------------------
Title: /s/
-----------------------------------------
4
