EXHIBIT 4.3
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
April 20, 1998 (the "Effective Date"), by and between You Bet International,
Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxxxxx
("Consultant").
R E C I T A L S
A. The Company desires to retain the services of Consultant pursuant
to the terms hereof, as its Chief Financial Officer and financial advisor.
B. Consultant desires to perform, and the Company is willing to have
Consultant perform, such services as an independent contractor to the Company.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. SERVICES. Consultant agrees to serve on a part time
basis as the Company's Chief Financial Officer and financial advisor.
Consultant shall devote such time as reasonably necessary to complete such
services.
2. TERM. The term of this Agreement shall commence as of
the Effective Date and shall thereafter continue on a month to month basis, it
being understood that either party may terminate this Agreement upon no less
than thirty (30) days notice unless terminated earlier in accordance with its
terms.
3. COMPENSATION. As compensation for the performance of
the Services, the Company shall pay Consultant such amounts as Consultant and
the Company agree based upon the time spent by Consultant in performing the
Services hereunder. In addition, the Company hereby grants to Consultant
options (the "Options") to purchase 25,000 shares of the Company's Common Stock
at an exercise price of $3.00 per share. All Options will vest as of the
Effective Date of this Agreement and shall expire on the first anniversary of
the Effective Date. Company shall use its best efforts to file a registration
statement on Form S-8 covering the Shares of Common Stock issuable upon the
exercise of the Options.
4. EXPENSES. The Company shall reimburse Consultant for
any expenses incurred by Consultant in performing the Services subject to
Consultant providing receipts or other documentation that evidences such
expenses.
5. TERMINATION. Either party hereto shall have the right
to terminate this Agreement in the event of a breach by the other party if such
breach continues uncured for a period of five days after the breaching party is
given written notice thereof by the non-breaching party. Notwithstanding the
foregoing sentence, the Company may immediately terminate this Agreement upon
notice to Consultant if
Consultant breaches any provision of Section 7 below. The election by the
Company to terminate this Agreement shall not be deemed an election of
remedies, and all other remedies provided by this Agreement or available at
law or in equity shall survive any such termination.
6. RELATIONSHIP OF PARTIES.
6.1 INDEPENDENT CONTRACTOR. Consultant is an
independent contractor and is not an agent, partner or employee of the Company.
Consultant shall perform the Services under the general direction of the
Company, but Consultant shall determine, in Consultant's sole and exclusive
discretion, the manner and means by which the Services are accomplished, subject
to the requirement that Consultant shall at all times comply with applicable
law.
6.2 EMPLOYMENT TAXES AND CONTRIBUTIONS. Consultant
shall report as income all compensation received by Consultant under this
Agreement. The Company shall not withhold any federal, state or local taxes or
make any contributions on behalf of Consultant relating to the compensation
received by Consultant under this Agreement.
6.3 NO BENEFITS. Because Consultant is engaged as an
independent contractor and not as an employee of the Company, the Company shall
not provide Consultant with any form or type of benefits, including, but not
limited to, health, life or disability insurance.
7. CONFIDENTIAL INFORMATION.
7.1 "CONFIDENTIAL INFORMATION". For purposes of this
Agreement, the term "Confidential Information" shall include, but not be limited
to (i) information concerning the operation, business and finances of the
Company and the Company's affiliates, (ii) the identity of customers and
suppliers of the Company and the Company's affiliates, (iii) techniques and
processes known or used by the Company and the Company's affiliates,
(iv) pending patent applications and unpublished software owned or licensed to
the Company and the Company's affiliates, and (v) other information and trade
secrets which are of great value to the Company and the Company's affiliates,
which information and trade secrets are generally not known other than by the
Company and the Company's affiliates.
7.2 MAINTENANCE OF CONFIDENTIALITY. Consultant
acknowledges that maintaining the confidentiality of all Confidential
Information is critically important to the Company and that Consultant has a
fiduciary duty to maintain the confidentiality of the Confidential Information.
In addition, Consultant understands
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that his agreement to maintain the confidentiality of all Confidential
Information is a material inducement to the Company in executing this
Agreement.
7.3 NO USE OR DISCLOSURE. Without the Company's prior
written consent in each instance, Consultant agrees not to use or disclose,
directly or indirectly, any Confidential Information in any manner, at any time,
other than as expressly required by the Company in connection with the services
Consultant performs under this Agreement.
7.4 RESTRICTION ON REMOVAL AND DUPLICATION.
Consultant agrees not to remove, reproduce, summarize or copy any Confidential
Information except as expressly required by the Company in connection with the
performance of his Services under this Agreement. Consultant agrees to return
immediately all Confidential Information (including any copies thereof) to the
Company (i) once such Confidential Information is no longer required for
Consultant to perform its services for the Company, (ii) when this Agreement
expires or is earlier terminated under any circumstances whatsoever or
(iii) whenever the Company may otherwise require that such Confidential
Information be returned.
7.5 RETURN OF DOCUMENTS. Consultant agrees that all
manuals, documents, files, media storage devices, reports, studies and other
materials used or developed by the Company, whether are not deemed Confidential
Information, are solely the property of the Company and that Consultant has no
right, title or interest therein. Upon the expiration or earlier termination of
this Agreement or whenever requested by the Company, Consultant shall promptly
deliver such property in his possession to the Company.
7.6 SURVIVAL. The covenants and agreements of
Consultant contained in this Section 7 shall be deemed to be effective as of the
date such person first acquired knowledge of any Confidential Information and
shall survive the expiration or earlier termination of this Agreement.
7.7 INJUNCTIVE AND OTHER EQUITABLE RELIEF. Consultant
acknowledges that his breach of any provision of this Section 7 will cause the
Company great and irreparable harm, for which it will have no adequate remedy at
law, and that, in addition to all other rights and remedies the Company may
have, the Company shall be entitled to injunctive and other equitable relief to
prevent a breach or continued breach of the provisions of this Section 7.
8. ARBITRATION. Any claim or controversy arising out of
or relating to this Agreement shall be settled by arbitration in Los Angeles,
California, in
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accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction. There shall be three arbitrators,
one to be chosen directly by each party at will, and the third arbitrator to
be selected by the two arbitrators so chosen.
9. GENERAL.
9.1 ASSIGNMENT. Consultant shall not assign
Consultant's rights or delegate Consultant's duties under this Agreement either
in whole or in part without the prior written consent of the Company. The
Company shall have the right to assign its rights and delegate its duties under
this Agreement in whole or in part without the consent of Consultant.
9.2 GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of California.
9.3 ATTORNEYS' FEES. If any litigation, arbitration
or other legal proceeding relating to this Agreement occurs between the parties
hereto, the prevailing party shall be entitled to recover (in addition to any
other relief awarded or granted) its reasonable costs and expenses, including
attorneys' fees and costs incurred in such litigation, arbitration or
proceeding.
9.4 SEVERABILITY. If any provision of this Agreement
is determined to be illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, then to the extent necessary to make such provision or
this Agreement legal, valid or otherwise enforceable, such provision shall be
limited, construed or severed and deleted from this Agreement, and the remaining
portion of such provision and the remaining other provisions hereof shall
survive, remain in full force and effect and continue to be binding, and shall
be interpreted to give effect to the intention of the parties hereto insofar as
that is possible.
9.5 NOTICES. All notices, requests and other
communications hereunder shall be in writing and shall be delivered by courier
or other means of personal service (including by means of a nationally
recognized courier service or professional messenger service), or sent by telex
or telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, in all cases, addressed to:
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Company:
You Bet International, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax Number: (000) 000-0000
Consultant:
Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax Number: (000) 000-0000
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgement
or other evidence of actual receipt or delivery to the address. In case of
service by telecopy, a copy of such notice shall be personally delivered or sent
by registered or certified mail, in the manner set forth above, within three
business days thereafter. Any party hereto may from time to time by notice in
writing served as set forth above designate a different address or a different
or additional person to which all such notices or communications thereafter are
to be given.
9.6 ENTIRE AGREEMENT. This Agreement sets forth the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, written or oral,
between them concerning such subject matter.
9.7 AMENDMENT, MODIFICATION AND WAIVER. This
Agreement and its provisions may not be amended, modified or waived except in a
writing signed by Consultant and the Company.
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9.8 CONSTRUCTION. The normal rule of construction
that an agreement shall be interpreted against the drafting party shall not
apply to this Agreement. In this Agreement, whenever the context so requires,
the masculine, feminine or neuter gender, and the singular or plural number or
tense, shall include the others.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
You Bet International, Inc.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------ ---------------------------------
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxxxx
Title: President and Title: Consultant
Chief Executive Officer
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