Exhibit 4.04
CONSULTING AGREEMENT
This agreement is made as of November 29, 1996 by and between Java Group, Inc.,
a Delaware Corporation (the "Company") and Nimbus Tres Sociedad Aninima, a Costa
Rican Corporation (the "Consultant").
RECITALS:
A. The Company is a Public company which desires to expose its business plan
to the European investment community and to build the value of the Company
for the benefit of its shareholders; and
B. The Consultant is a financial advisor involved in a variety of businesses,
with particular emphasis in Financial Public Relations and publishing for
Public companies; and
C. The Company recognizes the experience and knowledge of the Consultant in
matters relating to Financial Public Relations and publishing; and
D. The Company further recognizes that it is in the best interests of the
Company to engage the consulting services of the Consultant; and
E. The Company desires to retain the valuable services and counsel of the
Consultant, and the Consultant desires to render such services to the
Company upon the terms set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. RECITALS: The Recitals to this agreement are hereby incorporated into this
agreement as though full restated herein.
2. ENGAGEMENT: The Company hereby engages the Consultant, and the Consultant
accepts engagement by the Company, upon the terms and conditions set for
in this Agreement.
3. TERM: the term of this Agreement shall begin on the date hereof and shall
continue for one year.
4. CONSULTING SERVICES COMPENSATION: The Company shall pay to the Consultant
for services under this Agreement, One Hundred Fifty Thousand (150,000)
Common shares to Java Group, Inc., which shares shall be immediately
registered under a S-8 short form Registration Statement with the
Securities and Exchange Commission, by the Company, at the Company's
expense.
5. DUTIES: From time to time, as reasonably requested by the Company, the
Consultant shall provide financial public relations advice and services to
the Company.
6. NATURE OF ENGAGEMENT: The Consultant is being engaged by the Company as an
independent contractor. Nothing in this Agreement shall be construed so as
to create an employer-employee relationship between the parties.
7. EXPENSES: Upon receipt of requests from the Consultant for reimbursement,
the Company shall reimburse the Consultant for all reasonable and necessary
expenses the Consultant incurs, prior to and after the date of this
Agreement in performing his duties in connection with this Agreement. The
Consultant shall be required to receive authorization from the Company
prior to incurring any such expenses in excess of $1,000.
8. NOTICES: Any notice, report or demand required, permitted or desired under
this Agreement shall be sufficient if in writing and delivered by certified
mail, return receipt requested, Federal Express (or similar courier),
telegram or receipted hand delivery, at the following addresses (or such
other addresses designated by proper notice):
To the Company: Java Group Inc.
#000 - 000 Xxxxxx Xxxxx
Xxxxxxxxx, X.X. X0X 0X0
To the Consultant: Nimbus Tres Sociedad Anonima
#000 Xx Xxxxxx
Xxx. Xxx Xxxxxxx
Xxxxxxx, Xxxxx Xxxx
Any notice otherwise delivered shall be deemed given when actually received by
recipient.
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9. MISCELLANEOUS:
A) Governing Law: This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of Delaware.
B) Waiver: The waiver by any party hereto of a breach of any provision
of this agreement shall not operate as a waiver of any other breach of
any provision of this Agreement by any party.
C) Entire Agreement: This instrument contains the entire agreement of
the parties concerning engagement and may not be changed or modified
except by written agreement duly executed by the parties hereto.
D) Successors and Assigns: This Agreement shall insure to the benefit of
and be binding upon the parties hereto and their respective
successors, heirs, personal representatives and assigns.
E) Day(s): Reference in this Agreement to "day" or "days" refers to
calendar days, but if a referenced date falls on a Saturday, Sunday or
federal holiday, it will be deemed to fall on the next calendar day
that is not a Saturday, Sunday or federal holiday.
F) Confidentiality: Except as may otherwise by required by law, the
provisions of this Agreement shall remain strictly confidential. To
the extent permitted by law, the Board of Directors of the Company
shall ensure that no person other than members of the Board of
Directors of the Company and appropriate officers of the Company,
their legal counsel or accountants, are made aware of the terms of
this Agreement. In addition, neither the Company nor the Consultant
shall, either directly or indirectly through their respective
officers, directors, employees, shareholders, partners, joint
ventures, agents, consultants, contractor, affiliates or any other
person, disclose, communicate, disseminate or otherwise breach the
confidentiality of all or any provision of this Agreement, without the
expressed written consent of both parties to this Agreement.
G) Specific Performance: Strict compliance shall be required with each
and every provision of this Agreement. The parties hereto agree that
breach of this Agreement shall result in irreparable damage,
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and that specific performance of these obligations may be obtained.
H) Additional Documents: The Company agrees to execute such other
documents and agreements to effect the purpose of this Agreement, as
the Consultant may request from time to time.
I) Assignment: The obligations of the parties under this Agreement shall
not be assigned without the written consent of the parties.
Notwithstanding any provision of this Agreement to the contrary,
however, the Consultant shall be entitled to provide that any funds
payable or stock issuable to them pursuant to this Agreement shall
instead be paid or issued to another person.
J) Counterparts: This Agreement may be executed in counterparts, all the
counterparts will be considered as part of one agreement binding on
all parties to this Agreement.
K) Facsimile Signature: The parties may execute this Agreement by
facsimile, which signature(s) shall be deemed an original and binding
upon such party.
L) Severability: If any term, provision or condition of this Agreement
or the application thereof to any party or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, provision or
condition to the parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby,
and each term, condition and provision of their Agreement shall be
valid and enforceable to the fullest extent of the law.
M) Dispute Procedures: Any dispute, controversy or claims arising out
of, or in connection with this Agreement shall be settled by binding
arbitration in accordance with the rules of the American Arbitration
Association then in effect. The arbitration shall be conducted on an
expedient basis by an independent arbitrator selected by the American
Arbitration Association. The arbitration shall be subject to, and the
arbitrator shall have the powers and rights afforded by, the rules of
the American Arbitration Association. The decision of such
arbitrator, including any award of attorney's
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fees and costs, may be entered into any court with jurisdiction.
N) Board of Directors: Except as expressly provided otherwise in this
Agreement, reference to actions, determinations or similar occurrences
by the Company shall mean the action, decision or determination of its
Board of Directors.
O) Authority: The Company hereby represents and warrants that the person
executing this Agreement on its behalf is duly authorized to do so
that the execution of this Agreement has been duly approved by the
Board of Directors of the Company, and that this Agreement is binding
upon the Company. The Company hereby agrees to provide such
documentation evidencing such authorization and approval as the
Consultant may reasonably request including, without limitation,
written consents of the Board of Directors of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
JAVA GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
NIMBUS TRES SOCIEDAD ANONIMA
By: /s/ Xxxxx Xxxxxx Xxxxx
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Xxxxx Xxxxxx Xxxxx
President
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