EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of this 18th day
of November, 1996, by and between Xxxxxxx Companies, Inc., Columbus, Ohio, a
Delaware corporation having an office at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx
00000 (the "Company") and Xxxxxxxxx Xxxx Consultants, Inc., a Florida
corporation having an office at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx,
Xxxxxxx 00000 (the "Consultant").
RECITALS
WHEREAS, the Company desires to engage the Consultant to provide
certain consulting services with respect to the Company's business and the
Consultant is willing to provide such services on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereby
agree as follows:
4. Consulting Engagement. On the terms and subject to the conditions
herein contained, the Company hereby engages Consultant as a consultant, and
Consultant hereby accepts such engagement. Consultant's duties shall be to
consult with the Board of Directors and management of the Company, from time to
time, as requested by the Company with regard to financial public relations,
strategic planning and business development, including targeting of acquisitions
for the Company and such other aspects of the business of the Company as
Consultant and the Company may agree from time to time. Consultant agrees to use
its best efforts to perform all services required hereunder in a competent and
timely manner. The Consultant shall be required to render on a monthly basis a
written report, within ten days of the end of each month, to the Company with
respect to the foregoing services and documenting its activities.
5. Compensation. In consideration of the consulting services to be
rendered as set forth herein, and subject to the terms and conditions set forth
herein, the Company shall issue to the Consultant 100,000 shares of the
Company's common stock, $.01 par value.
6. Term of the Agreement.
(a) The term of this Agreement shall commence as of the date first
set forth above, and, shall continue for a period of six months unless earlier
terminated pursuant hereto, such term may be extended for an additional six
months upon the mutual agreement of the Company and the Consultant.
(b) In the event that the Company is not satisfied with the
Consultant's services provided hereunder in the Company's sole discretion, then
within forty five days of the date hereof, the Company shall send written notice
to the Consultant terminating this Agreement and within five days thereafter,
the Consultant shall return all of the compensation received
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hereunder less the actual documented out-of-pocket expenses of the Consultant,
which amount of expenses shall not exceed the compensation received by the
Consultant.
(c) In addition to the rights provided in paragraph 3(b), in the
case of any material breach by Consultant of its obligations under this
Agreement, the Company may terminate this Agreement upon thirty (30) days
written notice, such notice to describe the breach in detail, unless Consultant
has cured the breach within such thirty (30) day period, or in the event that
the breach cannot be cured within such period, Consultant has commenced with due
diligence to cure such breach.
(d) The termination of this Agreement by either party hereto shall
not affect, restrict, diminish or remove any rights, obligations or remedies
held or arising by either party under the terms of this Agreement up to and
through the effective date of termination hereof.
7. Representations, Warranties and Covenants of the Consultant.
(a) The Consultant hereby represents and warrants that it has full
power and legal right and authority to execute, deliver and perform under this
Agreement, that the officers and individuals executing this Agreement on behalf
of the Consultant shall have full power and authority to do so.
(b) The Consultant hereby represents and warrants:
(i) This Agreement has been duly authorized by all
necessary corporate and individual action, executed
and delivered by the Consultant and constitutes the
legal, valid and binding obligation of the
Consultant, enforceable against the Consultant in
accordance with its terms, subject only to applicable
bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the rights of
creditors generally and to general principles of
equity.
(ii) Neither Consultant, nor its affiliates, officers or
directors, as such terms are defined under the
Securities Act, shall be engaged, directly or
indirectly, in capital-raising transactions in
connection with the services to be rendered
hereunder.
(iii) Consultant is an accredited investor as that term is
defined in the Securities Act of 1933.
(iv) Xxxxx Xxxxxxx will perform substantially all of the
consulting tasks to be performed by Consultant
hereunder.
(v) No petition under any Federal or State bankruptcy or
insolvency law has been filed by or against
Consultant.
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(vi) Neither Consultant nor any affiliate, officer or
director has been convicted in a criminal proceeding,
nor is the subject of a criminal proceeding which is
presently pending or threatened.
(vii) Neither Consultant nor any affiliate, officer or
director has been the subject of any order, judgment
or decree, not subsequently reversed, suspended or
vacated, which permanently or temporarily enjoined
them from any of the following activities:
(A) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool
operator, floor broker, leverage transaction merchant
or any other person regulated by the Commodity
Futures Trading Commission; or as an associated
person of any of the foregoing; or as an investment
advisor, underwriter, broker or dealer in securities,
or as an affiliated person, director or employee of
an investment company, bank, savings and loan
association or insurance company or any other person
regulated by the Securities and Exchange Commission;
or engaging in or continuing any conduct or practice
in connection with such activities;
(B) engaging in any type of business practice;
(C) engaging in any activity in connection with the
purchase or sale of any security or commodity in
connection with any violation of Federal or State
securities laws or Federal commodities laws.
(viii) Neither Consultant nor any affiliate, officer or
director has been the subject of any order, judgment
or decree, not subsequently reversed, suspended or
vacated, of any Federal or State authority barring,
suspending or otherwise limiting for more than thirty
(30) days their right to engage in any of the
activities described above or their right to be
associated with persons engaged in any of such
activities.
(ix) Neither Consultant nor any affiliate, officer or
director has been found by a court in a civil or
criminal action or by the Securities and Exchange
Commission or the Commodity Futures Trading
Commission to have violated any Federal or State
securities law, or any Federal commodities law, where
such judgment has not subsequently been reversed,
suspended or vacated.
(x) Neither Consultant nor any affiliate, officer or
director has been the subject of any professional
disciplinary proceeding.
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(xi) No administrative sanctions have been levied against
Consultant.
(c) The Consultant hereby covenants and agrees to indemnify and hold
harmless the Company from and against and in respect of (i) any and all losses
and damages resulting from any misrepresentation or breach of any warranty,
covenant or agreement by the Consultant made in paragraph 4(b) and (ii) any and
all actions, suits, proceedings, claims, demands, judgments, costs, and
expenses, including attorney's fees, incident to the foregoing.
8. Confidentiality. Consultant understands that, in performing its
responsibilities hereunder, it will have access to Confidential Information (as
hereinafter defined) of the Company. Consultant shall hold in strict confidence
unless compelled to disclose by judicial or administrative process, or, in the
opinion of counsel, by other requirements of law, Confidential Information (as
hereinafter defined) and shall not release or disclose such information to any
other person, except its employees, auditors, attorneys, representatives and
other advisors and agents in connection with this Agreement and the services to
be provided hereunder, provided that any such person shall have first been
advised of and agreed to the confidentiality provisions of this Section 5. For
purposes hereof, "Confidential Information" shall mean all information of any
kind which the Company deems to be confidential, except information (i)
disclosed in any filing by the Company pursuant to the Securities Exchange Act
of 1934, (ii) available to the public other than as a result of a disclosure by
Consultant in violation of the terms hereof, (iii) available to Consultant on a
non-confidential basis prior to disclosure to Consultant by the Company, or (iv)
available to Consultant on a non-confidential basis from a source other than the
Company, provided that such source is not known by Consultant to be bound by a
confidentiality agreement with the Company or otherwise is known by Consultant
to be prohibited by a contractual, legal or fiduciary obligation from
transmitting the information to Consultant.
9. Authorization. Each party hereto has taken all necessary action to
duly authorize the execution, delivery and performance of this Agreement.
10. Modification. Except as otherwise provided herein, this Agreement
may not be modified, changed, discharged, waived or terminated except by an
instrument in writing signed by the party against whom the enforcement of any
such modification, change, discharge, waiver or termination is sought.
11. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
12. Notices. All notices and other communications hereunder to any
party shall be in a written instrument delivered by hand or duly sent by first
class, registered or certified mail, return receipt requested and postage
prepaid, addressed to such party at the address set forth on the first page of
this Agreement or such other address as may hereafter by designated in
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writing by the addressee. All such notices and communications shall be deemed to
have been received (a) in the case of personal delivery, on the date of such
delivery, and (b) in the case of mailing, on the fifth day following the date of
such mailing.
13. Survival. The indemnification granted under Section 4 above shall
survive the termination or cancellation of this Agreement and shall be binding
upon and inure to the benefit of the parties hereto, their successors and
assigns.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns and representatives. This Agreement shall not be assignable in
whole or in part, in any of its terms, obligations, responsibilities or
provisions by any party hereto without the express written consent of the other
party; provided, however, that this provision shall in no way limit the right of
Consultant to enlist, hire or retain counsel, consultants, advisors, experts or
other third parties to assist it in carrying out and administering its duties
and responsibilities hereunder.
15. Relationship. The sole relationships existing between the Company
and Consultant shall be that as specifically provided under the terms of this
Agreement. This Agreement shall not be construed as creating any partnership,
joint venture or any other form of joint operation or organization wherein the
parties hereto are deemed to be partners.
16. Cooperation. The parties hereto agree to execute and deliver from
time to time such additional documents, instruments, agreements, and other
evidences of authority as may be necessary or prudent to carry out the intent of
this Agreement and the transactions contemplated hereby.
17. Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
18. Severability. The invalidity or unenforceability of any provision
hereof shall in no way effect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
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19. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
XXXXXXX COMPANIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
XXXXXXXXX XXXX CONSULTANTS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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