Exhibit 99.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), is entered into as of the 24th
day of January, 2002, by and between 0xxxxx.xxx, Inc., a Nevada corporation (the
"Company") with principal offices at 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, and
Xxxxxxx Xxxxxxxx (the "Consultant"), a resident of New York, with an office
address at 000 Xxxx Xxxxxx, Xxxx Xxxxxx Xxxxxx, XX 00000.
RECITALS
A. The Company is a registered as a public reporting company under the
Securities Exchange act of 1934, and is engaged in promoting and
facilitating the import from and export to the People's Republic of China
("China") of machinery, electrical and other products through the use of a
proprietary Internet hub designed to service small and medium-sized
business enterprises;
B. The Consultant is engaged in performing corporate and strategic consulting
services and has had experience in developing business relationships
between enterprises located in the U.S. and China; and
C. The Company and the Consultant desire to confirm the terms under which the
Consultant has been engaged to perform services for, and is being
compensated by, the Company.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises set forth below, and based upon our prior discussions, and for good and
valuable consideration, Consultant is engaged as a consultant to the Company, as
follows:
1. Engagement. The Company hereby engages the Consultant to provide the
services described below, on the terms and conditions set forth in this
Agreement. The period of the engagement will be for a term of one year,
beginning at the effective date of the Registration Statement (as such term is
defined in Section 5 hereof).
2. Non-Exclusivity. The parties acknowledge that this engagement is not
exclusive to either party. The Company shall be free to engage other
consultants, and the Consultant may render services to other business, financial
and commercial clients, whether during or after the term of this Agreement.
3. Services. The Consultant shall perform the following services during the
term of this Agreement:
(a) The Consultant will evaluate the Company's current business plan and
make recommendations to the Company's management for the development and
expansion of the Company's business:
(b) The Consultant will identify and make introductions to potential
strategic partners who may be interested in providing the Company with (i)
marketing services, (ii) product transportation and distribution services and
(iii) products and components related to durable consumer goods;
(c) The Consultant will identify, assess and recommend small and medium
sized business enterprises as potential customers for the Company's goods and
services;
(d) The Consultant will furnish advice on various support and technical
services relating to the import of goods from China and the export of U.S.
products to China;
(e) At the request of the Company and with sufficient advance notice (and
subject to the payment of expenses as set forth below), the Consultant will
accompany Company officers and representatives on business trips to China; and
(f) The Consultant will make recommendations on potential mergers and
acquisitions.
4. Method of Providing Services. It is understood that the Company shall
not control the manner or prescribe the method by which the services under this
Agreement are to be performed by Consultant. The Consultant will perform
services, and may communicate with the Company and other parties, through
telephone or video conferences, personal meetings, email, correspondence and
such other methods, and at such times, as Consultant may determine, subject to
the reasonable convenience of the parties. The Consultant shall not be required
to devote a specific or minimum number of hours to the Company's business, and
shall allocate such time as is reasonably required to provide, in an effective
manner, the services contemplated by this Agreement. Unless requested otherwise
by the Company, the Consultant shall communicate with the Company's management
through Xxxxxx X. XxXxxxxxx, its President and Chief Executive Officer.
5. Compensation.
(a) In consideration of, and in full payment for, the services to be
performed under this Agreement, the Company hereby agrees to issue to the
Consultant, subject to the provisions of this Section 5, three hundred ninety
five thousand (395,000) shares of the common stock, par value $.001 per share,
of the Company (the "Shares"); provided, however, that prior to issuance of the
Shares, the Company will file with the Securities and Exchange Commission a
registration statement on Form S-8 covering the Shares (the "Registration
Statement"). Anything contained herein to the contrary notwithstanding, the
parties hereby acknowledge and agree that the
Consultant's obligation to perform hereunder is subject to, and conditioned
upon: (i) the Consultant's receipt of the Company's most recent annual report
and such other reports as filed under the Securities Exchange Act of 1934, as
amended, and otherwise required to be delivered to the Consultant by the Company
under Rule 428 promulgated by the Commission under the Securities Act of 1933,
as amended (the "428 Information"); (ii) the effectiveness of the Registration
Statement; and (iii) delivery to the Consultant of stock certificates evidencing
the Shares upon their issuance subsequent to the effectiveness of the
Registration Statement. The Consultant shall have forty-eight (48) hours
following receipt of the 428 Information during which to rescind this Agreement,
rendering it null and void and without any obligations as to the parties hereto;
provided, however, failure by the Consultant to respond within such 48 hour
period shall be deemed an acceptance by the Consultant of this Agreement.
6. Expenses. The Consultant will be reimbursed for any significant expenses
incurred by him in the performance of services under this Agreement, including
the cost of travel, food and lodging while on trips for the Company, and for
specific expenditures for long-distance telephone and fax and messenger and
courier usage. Reimbursement will be based on reports and receipts to be
submitted by the Consultant.
7. Representations and Covenants. The Company represents as follows,
knowing the Consultant is relying thereon:
(a) The Company is a fully reporting company registered as such under the
Securities Exchange Act of 1934, and the Company has filed all reports required
to be filed under such Act.
(b) The Company has taken or will immediately take all steps necessary to
cause a Registration Statement to be filed with the Securities and Exchange
Commission covering the Shares.
(c) The issuance of the Shares has been approved by the Company's Board of
Directors and all requisite corporate action.
8. Independent Contractors, etc. It is understood and agreed by the parties
that both Consultant and the Company are independent contractors with respect to
each other, and are not employees, agents, joint venturers or partners with
respect to one another, for any purposes whatsoever.
9. Confidential Information. As a consequence of the transactions
contemplated by this Agreement, each party may obtain from the Company certain
confidential and proprietary information, business plans, sales and marketing
techniques, business prospects and other non-public confidential information
(the "Confidential Information"). During the term of this Agreement, and for a
period of two years after termination, each party agrees to keep confidential,
and not disclose to any other person, all Confidential Information. The
receiving party shall not disclose confidential information to third parties
other than pursuant to a subpoena
or other process of law, or with the other party's written consent, or after
such Confidential Information is disseminated by someone other than the
receiving party. In the event either party makes disclosure of any Confidential
Information, it shall notify the other party in writing specifying in detail the
nature of the disclosure, to whom made, and the basis upon which the disclosing
party seeks to it justify said disclosure. The services and/or advice to be
provided by Consultant hereunder shall not be disclosed to third parties not
affiliated with the Company without prior written approval by the parties, which
approval shall not be unreasonably withheld, except as required by law.
10. Governing Law and Disputes. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York with respect to
contracts made and to be fully performed therein, without regard to the
conflicts of laws principles thereof. The parties hereto hereby agree that any
suit or proceeding arising under this Agreement, or in connection with the
consummation of the transactions contemplated hereby, shall be brought solely in
a federal or state court located in the City, County and State of New York. By
its execution hereof, each party hereby consents and irrevocably submits to the
in personam jurisdiction of the federal and state courts located in the City,
County and State of New York and agrees that any process in any suit or
proceeding commenced in such courts under this Agreement may be served upon it
personally or by certified or registered mail, return receipt requested, or by
Federal Express or other courier service, with the same force and effect as if
personally served upon it in New York City. The parties hereto each waive any
claim that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense of lack of in personam jurisdiction with respect
thereto.
11. Notices. The parties agree that any notice given hereunder, shall be
deemed given if mailed by registered or certified mail, return receipt requested
or sent by established overnight express delivery services to the parties hereto
at their respective addresses stated above.
12. No Assignment. This Agreement, and all rights and obligations
hereunder, shall be binding upon and inure to the benefit of each party's
successors and may not be assigned without the written consent of each party.
13. Miscellaneous. Any determination by any court of competent jurisdiction
that any provision of this Agreement is invalid shall not affect the validity of
any other provision of this Agreement, which shall remain in full force and
effect and shall be construed as to be valid under applicable law. No waiver by
any party of any provision (or breach of any provision) of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
or construed either as a further or continuing waiver of any such provision or
breach or as waiver of any other provision (or breach of any other provision) of
this Agreement.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter, supersedes all prior
agreement, if any, and may not be amended except in writing signed by both
parties.
In WITNESS WHEREOF, the parties have executed this Agreement as of January
24, 2002.
0xxxxx.xxx, Inc.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
Consultant:
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
