Exhibit 4.2
CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is made and entered into this
12th day of November, 2002
BETWEEN:
XXXXXXX VAN MUSSCHER, a businessman residing in Gruenwald, Germany
(hereinafter referred to as the "Consultant")
AND
RAVEN MOON INTERNATIONAL, INC., a company incorporated pursuant to the laws
of the State of Florida.
(hereinafter referred to as the "Client")
WHEREAS the Consultant and Client are desirous that the Consultant provide
certain services to the Client as set out herein.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING SERVICES
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The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall:
(a) Develop a marketing plan for the expansion of the Client's business into
Europe;
(b) Introduce the business of the Client to Consultant's contacts throughout
Europe;
(c) Introduce Client to Consultant's German contacts for the purpose of
concluding a joint-venture, licensing or distributor relationship for
carrying on business in Germany and assist in such negotiations; and
(d) Identify companies and/or product lines that Client might acquire that
would be complimentary to the Client's business and assist in such
acquisitions.
II. TIME, MANNER AND PLACE PERFORMANCE
The Client agrees that the Consultant does not and shall not be required to
devote his full time and efforts to the Client. The Consultant shall devote such
time to the Client as is reasonable and necessary to provide the Consulting
Services to the Client. Consultant shall be available for advice and counsel to
the officers and directors of the Client at such reasonable and convenient times
and places as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The Term of this Agreement shall be six (6) months, commencing on the date of
this Agreement set forth above (the "Term"), subject, however, to prior
termination as provided in Section XI of this Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by the
Consultant, Client hereby agrees to compensate Consultant as follows:
a. Client shall issue 3,000,000 shares the common stock of the Client on
or before November 22nd, 2002 to the Consultant. The Shares have an
aggregate value of US $27,000 dollars based upon a price of $.009 per
share (the "Shares"). The Shares shall be issued without "restriction"
and shall be free trading.
b. Client shall issue to Consultant a callable option for 6,000,000
shares of common stock, with an exercise price equal to 50% of the
market price for the Client's common stock. Market price shall be
determined based on the average of the closing bid price for the
Client's common stock for the 10 trading days prior to the exercise
date of the option. The option shall be exercised in minimum
increments of 250,000 shares each. The shares of common stock
underlying the option shall be registered on Form S-8. The shares
shall be issued and held in escrow with counsel to the Client so that,
upon each exercise by Consultant, free trading shares shall be
delivered to Consultant.
The options will be callable by the Client. The first 2,500,000 shares may
be called for cancellation and will not be delivered until the receipt of
clear funds in the amount of $10,000 wired to the Client's bank within 14
business days after the Form S-8 is filed with the SEC. The final 3,500,000
options may be called for cancellation if they are not fully exercised
between the 20th and 30th business day after the grant date. In the event
of a call, the Client shall give Consultant written notice of cancellation,
and Consultant shall have until the end of the applicable call period
within which to exercise any outstanding options. All unexercised options
at the end of any applicable call period shall be automatically cancelled.
c. The shares issued pursuant to this paragraph shall be issued free and
clear of any liens and encumbrances. The Shares shall be deemed fully
earned upon receipt by Consultant provided that the Consultant
performs the services represented pursuant to this Agreement.
V. SALES OF SHARES RECEIVED; ESCROW
It is Consultant's intention to sell the Shares received during the term of this
Agreement or shortly thereafter to cover his costs. The Client agrees that the
Consultant may sell the Shares at such times and in such manner as may be
determined in the sole discretion of the Consultant. Client understands that any
sales of the Shares by Consultant may have the effect of decreasing the trading
price of the Client's stock, particularly if Client's stock is thinly traded.
The Consultant will use reasonable efforts to make such sales at such times and
in such a manner so as to minimize any adverse effect to the Client from sales
of the Shares. Under no circumstances will the Client place stop transfer
instructions ("Stop Transfer Instructions") with its transfer agent with respect
to the Shares. In the event Client places Stop Transfer Instructions with
respect to the Shares, Consultant may deliver this Agreement to the transfer
agent of Client, and notwithstanding the Stop Transfer Instructions, transfer
agent may then transfer the Shares at the direction of the Consultant or
Consultant's agent.
Consultant agrees to deposit the Shares into escrow with Client's counsel. The
Shares will be issued in 3 blocks of 1,000,000 shares each and registered on
Form S-8. The first certificate may be deposited by Consultant with its
brokerage account. Provided Consultant accounts to the Client on the sale and
disposition of the Shares to reimburse Consultant for documented expenses of
providing its services, Client will instruct Escrow Agent to release the
subsequent blocks of Shares to Consultant's brokerage account.
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VI. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not, during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such authorization
or consent to disclose may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protective order, provision of statute, rule,
regulation or procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be disclosed
or in compliance with the terms of a judicial order or administrative process.
Any information which has been disclosed to the public by the Client or upon the
authorization of the client shall not be considered Confidential Information.
VII. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity and
except as set forth in this Agreement; Consultant shall not enter into any
agreement or incur any obligation on behalf of the Client.
VIII. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to perform
services for other companies and persons. Consultant will use its best efforts
to avoid conflicts of interest. Client agrees that it shall not be a conflict of
interest that Consultant devotes time and resources to companies and persons
other than Client. In the event that Consultant believes a conflict of interest
arises which may affect the performance of the Consulting Services for Client,
Consultant shall promptly notify the Client of such conflict. Upon receiving
such notice, the Client may terminate this Agreement pursuant to Section XI.
Failure to terminate this Agreement within 30 days of notification of any
conflict of interest shall constitute the Client's ongoing consent to the
Consultant's continued activities, which would be in conflict with client.
IX. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS AND LIMITATION OF LIABILITY
a. The Client agrees to indemnify and hold harmless the Consultant against any
losses, claims, damages, liabilities and/or expenses (including any legal
or other expenses reasonably incurred in investigating or defending any
action or claim in respect thereof) to which the Consultant may become
subject under the Securities Act of 1933 as amended or the Securities
Exchange Act of 1934 as amended or German legislation and regulations,
because of actions of the Client or its agent(s), Client's material
publicly available to the Consultant, or materials provided to Consultant
by Client for use by Consultant in its performance under this Agreement.
b. The Consultant agrees to indemnify and hold the Client and each officer,
director and controlling person of the Client against any loses, claims,
damages, liabilities and/or expenses (including any legal or other expenses
reasonability incurred in investigating or defending any action or claim in
respect thereof) to which the Client of such officer, director or
controlling person may become subject under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended or German
legislation and regulations, solely because of actions of the Consultant or
his agent (s).
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X. TRADING IN CLIENT'S SECURITY
During the term of this Agreement, except for the sale of the Shares received by
Consultant under this Agreement, the Consultant shall not engage in the purchase
or sale of any of the Client's securities.
XI. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client for any reason upon 30 days prior written notice to
Consultant. The Client will issue a pro rata portion of the Shares
that reflects the portion of the Term completed by Consultant prior to
termination pursuant to this Section XI.
b. By Consultant upon 30 days prior written notice to the Client in the
event:
(i) Client requests Consultant to perform acts or services in
violation of any law, rule, regulation, policy or order of any federal
or state regulatory agency,
(ii) Client distributes to the public information containing material
misrepresentations or omissions, or
(iii) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state
regulatory agency.
In the event of termination by Consultant pursuant to Section XI b, the
Client will issue a pro rata portion of the Shares that reflects the
portion of the Term completed by Consultant prior to termination pursuant
to this Section XI.
XII. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered or certified mail, return receipt requested, to
the address set forth below.
a. If to Consultant:
Xxxxxx-Xxxx-Xxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
Fax: xx00 00 00 00 00 00
b. If to Client:
000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
XIII. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of Florida.
XIV. ARBITRATION
Any dispute, difference or question which may arise at any time hereinafter
between the Shareholders touching on the true construction of this Agreement and
the respective rights and obligations of each party hereto to the other shall be
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referred to and settled by binding arbitration under the American Arbitration
Association. No arbitration shall be commenced until the aggrieved party shall
send to the other party a written notice describing the problem and stating a
proposed solution ("Settlement Notice"). For Thirty (30) days after the sending
of the Settlement Notice, the parties shall try to settle the dispute in good
faith. During this Thirty (30) day settlement period, each party shall send to
the other an additional written notice with further proposal for resolving the
dispute and responding in detail to the last proposal of the other party. The
contents of the Settlement Notice and of all discussions and writings during the
Thirty (30) day settlement period shall be without prejudice and shall be
privileged as settlement discussion and may not be used in any legal proceedings
or arbitration. The place of arbitration shall be in the State of Florida.
Judgement on the Arbitral award may be entered in any court in the State of
Florida or in any court having jurisdiction. The parties hereby waive all
defences as to personal jurisdiction, venue and sovereign immunity from
attachment, exception and jurisdiction in any proceeding to confirm or enforce
the award. The laws of the State of Florida shall govern all issues during the
arbitration. The decision of the Arbitrator shall be final and finding on the
parties.
XV. SEVERABILITY
The provisions contained herein are severable and in the event any of them shall
be held invalid, the Agreement shall be interpreted as if such invalid
provisions were not contained herein.
XVI. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations of the parties. This Agreement may not be modified,
except in writing and signed by all parties hereto.
XVII. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but both of which taken together shall constitute to
one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
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Xxxxxxx van Musscher, Consultant
RAVEN MOON INTERNATIONAL, INC.
By: /s/ Xxxx XxXxxxxxxxx
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Xxxx XxXxxxxxxxx
Chairman and CEO
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