EXHIBIT
4.9
CONSULTING AGREEMENT
WITH
HENRI XXXXX XXXXXX
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CONSULTING AGREEMENT
This Consulting Agreement (Agreement) is made and entered into as of this
May, 15 2001, by and between J-Bird Music Group LTD, of Wilton, Connecticut (The
Principal), Henri Xxxxx Xxxxxx with reference to the following facts:
A. Consultant possesses special skills, knowledge and qualifications
beneficial to the business of the Principal.
B. The parties hereto desire to enter into an Agreement under which
Consultant will provide services to the Principal.
C. The parties intend that Consultant shall be an independent
contractor with the Principal under this Agreement and not an employee of
the Principal.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Engagement and Term. The Principal hereby engages the services of
the Consultant and the Consultant accepts such engagement on the terms and
conditions set forth herein for a term commencing as of May 1, 2001 and
terminating on August 31,2001.
2. Duties. Consultant shall be engaged to provide consulting services
for the Principal with respect to the conduct of its business described above.
Consultant shall perform such duties pertaining to the Principal's business as
the Principal and Consultant shall from time to time mutually agree in
connection with the Principals business. Primary responsibilities are cost
containment in the shipping and receiving and inventory control of the companies
goods.
3. Nature of Services. Consultant agrees to perform diligently and to
the best of his talents, skills and expertise, all services which it is required
to perform under this Agreement and to devote such productive time thereto as
Consultant reasonably determines to be necessary and appropriate to fulfill
Consultant's obligation hereunder. Consultant shall not delegate the performance
of any such services to any other person, firm or corporation without the prior
written consent of the Principal. Consultant shall have the right to engage in
any other gainful activities and businesses in its sole and absolute discretion,
provided that Consultant hereby agrees that it shall not engage in any
activities or businesses which conflict or compete with the activities and
business of the Principal. Consultant's services hereunder need not be performed
at the Principal's offices. The Consultant agrees to provide seven (7) hours of
consulting a week to the Principal and it's associates and agrees to physically
come to the Principal's office once a month or as mutually agreed.
4. Compensation. The Principal shall pay to Consultant, and Consultant
agrees to accept as payment in full for all services rendered by it to the
Principal during the term hereof as compensation, 5,000 shares of J-Bird Music
Group LTD common stock.
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5. Expenses and Taxes. The Consultant shall be solely responsible for
all out-of-pocket expenses incurred by Consultant in the performance of its
duties hereunder, except that the Consultant shall be reimbursed by the
Principal for travel expenses incurred in fulfilling his duties as herein
described. Additionally, the Consultant shall be responsible for its income tax
liability consistent with his status as an independent contractor.
6. Confidential Relationship Created by Agreement. Consultant
acknowledges and agrees that this agreement creates a relationship of confidence
and trust on the part of Consultant for the benefit of the Principal. During the
term of this Agreement, Consultant may be responsible, in whole or in part, for
the creation of, or may acquire certain "Confidential Information" (as
herein-after defined) from or regarding the Principal's employees, agents, and
representatives or documents, or otherwise as a result of performing the
services of Consultant hereunder. Consultant acknowledges and agrees that the
Principal would not have entered into this Agreement unless the Principal were
assured that all such confidential information would be held in confidence by
Consultant, in trust for the sole benefit of the Principal, and according to the
terms set forth in this paragraph 6.
During the term of this Agreement and at all times thereafter,
Consultant shall keep all of the Confidential Information in confidence and
shall not disclose any of the same to any other person, except the Principal's
personnel entitled thereto and other persons designated in writing by the
Principal. Consultant shall not cause, suffer or permit the Confidential
Information to be sued for the gain or benefit of any party outside of the
Principal or for Consultant's personal gain or benefit outside the scope of
Consultant's engagement by the Principal.
The term "Confidential Information", as used herein, means all
information or material not generally known by the general public which (a)
gives the Principal some competitive business advantage or the opportunity of
obtaining such advantage or the disclosure of which could be detrimental to the
interests of the Principal; (b) which is owned by the Principal or in which the
Principal has an interest and (c) which is either (I) marked "Confidential
Information", "Proprietary Information" or other similar marking, (ii) known by
the Consultant to be considered confidential or proprietary by the Principal or
(iii) from all the relevant circumstances should reasonably be assumed by
Consultant to be confidential and proprietary to the Principal. Confidential
Information includes, but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced to writing):
trade secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know how, processes, formulas, models, flow charts, software in
various stages of development, source codes, object codes, research and
development procedures, research or development and test results, marketing
techniques and materials, marketing and development plans, price lists, pricing
policies, business plans, information relating to customers and/or suppliers'
identities, characteristics and agreements, financial information and
projections, and employees files. Confidential Information also includes any
information described above which the Principal obtains from another third party
and which the Principal treats as proprietary or designates as Confidential
Information, whether or not owned or developed by the Principal. NOTWITHSTANDING
THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS
GENERIC INFORMATION OR GENERAL KNOWLEDGE WHICH THE CONSULTANT WOULD HAVE LEARNED
IN THE COURSE OF
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PERFORMING SIMILAR CONSULTING SERVICES ELSEWHERE IN THE TRADE OR IF IT IS
OTHERWISE PUBLICLY KNOWN AND IN THE PUBLIC DOMAIN.
Consultant agrees not to make any written use of or reference to the
Principal's name for any marketing, public relations, display or other business
purpose or make any use of the Principal's facilities for any activity unrelated
to the express business purposes and interests of the Principal under this
Agreement, without the prior consent of the Principal, which consent may be
withheld or granted in the Principal's sole and absolute discretion.
Consultant acknowledges and agrees that the remedy at law for the
breach of any provision of this Paragraph 6 may be inadequate and that the
Principal shall be entitled to injunctive relief without bond, in addition to
any other rights or remedies which the Principal may have for such breach.
Consultant agrees that the obligations, covenants and agreements of the
Consultant and the rights of the Principal as set forth in this paragraph 6
shall survive any termination expiration of this Agreement.
7. No Conflicting Agreements. Consultant warrants and represents that
there are no agreements to which it is a party which would prevent its timely
and complete performance of the terms and conditions of this Agreement, and
Consultant agrees not to enter into any such agreement during the term of this
Agreement.
8. Indemnification. Each party, (Indemnifying Party) agrees to
indemnify and hold harmless the other party (Indemnified Party) and each of the
Indemnified Party's directors, officers, agents, employees, and controlling
persons against any losses, claims, damages, or liabilities related to or
arising out of any actions or omissions committed by the Indemnifying Party
hereunder (including any violations of applicable federal and state securities
laws). The provisions of this sections shall survive any termination of this
Agreement and shall be binding upon any successors or assigns of the Principal.
9. Notice. All notices or demands of any kind which either party hereto
may be required or desires to serve upon the other party under the terms of this
Agreement shall be in writing and shall be served upon such other party by
personal delivery upon such other party or by leaving a copy of said notice or
demand, addressed to such other party at the address set forth below, whereupon
service shall be deemed completed, or by mailing a copy thereof by certified or
registered mail, postage prepaid with the return receipt requested, to the
appropriate address set forth below.
If to the Consultant:
Xxxxx Xxxxx Xxxxxx
X X xxx 000
Xxxxxxxxx, XX 00000
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If to the Principal:
J-Bird Music Group LTD
000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxx, XX 00000
In the case of service by mail, it shall be deemed complete at the
expiration of the third day after the date of mailing. The address to which
notices and demands shall be delivered or sent may be changed from time to time
by notice served as hereinabove provided.
10. Attorneys' Fees. In the event of any action or proceeding between
the parties hereto to enforce any provision or right hereunder, the unsuccessful
party to such action or proceeding agrees to pay the successful party all costs
and expenses, including but not limited to, actual attorneys' fees incurred
therein by; such successful party, which costs, expenses and attorneys' fees
shall be included in and as a part of any judgment or award rendered in such
action or proceeding.
11. Relationship and Authority. The relationship between the Principal
and Consultant intended to be created by this Agreement is that of independent
contractor and nothing herein contained shall be construed as creating a
relationship of employer and employee or principal and agent between the parties
hereto. Consultant agrees that it shall neither act nor make any representation
that is authorized to act as an agent or officer of the Principal.
12. Assignment. The services to be rendered and the duties to be
performed by Consultant hereunder are of a unique and personal nature. Nothing
contained in this Agreement shall be construed to permit assignment by
Consultant of any right or obligation under this Agreement and any such
assignment is expressly prohibited.
13. Paragraph Headings. The headings of the several paragraphs of this
Agreement are inserted solely for convenience of reference and are not part of
and are not intended to govern, limit or aid in the construction of any term or
provision hereof.
14. Entire Agreement. This Agreement is intended to constitute the
final, entire, complete and exclusive agreement between the parties hereto
pertaining to the subject matter hereof, and expressly supersedes all prior
written and oral agreements and understandings between the parties hereto with
respect to the subject matter hereof.
15. Engagement at Will. Any continuance of Consultant's engagement by
Principal and Consultant after expiration of the term of this Agreement shall be
deemed an engagement at will and shall be subject to termination with or without
cause by either Principal or Consultant upon delivery of notice thereof to the
other party. Any such continuance of engagement shall be upon the terms and
conditions as set forth herein or as otherwise mutually agreed between the
parties.
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16. Waiver; Modification. No provisions of this Agreement may be
amended or modified, or the termination or discharge thereof agreed to or
acknowledged orally, but such may be accomplished only by an agreement in
writing signed by the party against whom the enforcement of any such waiver,
amendment, modification, termination or discharge is sought.
17. Severability. The provisions of this Agreement are severable, and
in the event that any provision is declared invalid, this Agreement shall be
interpreted as if such invalid provision were not contained herein.
18. Applicable Law. This Agreement shall constitute a contract under
the laws of the State of Connecticut and shall be governed and construed in
accordance with the laws of said state.
19. Execution of Documents. The Principal and Consultant shall,
whenever and as often as reasonably requested to do so by any other party,
execute, acknowledge and deliver or cause to be executed, acknowledged or
delivered, any and all agreements and instruments as may be necessary, expedient
or proper in the opinion of the requesting party to carry out the intent and
purposes of this Agreement.
20. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all
together shall constitute one and the same agreement.
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INTENDING TO BE LEGALLY BOUND, the parties hereto have executed this
Agreement as of the day and year first set forth above.
"CONSULTANT" "PRINCIPAL"
S/Henri Xxxxx Xxxxxx /S/HOPE X. XXXXXXXXXX
Henri Xxxxx Xxxxxx Hope X. Xxxxxxxxxx
J-Bird Music Group LTD
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