EXHIBIT 99.04
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of
this 1st day of December 2001 ("Effective Date") by and between HOLLYWOOD
XXXXXXXX.XXX, INC., a Delaware corporation ("Company") and XXXX XXXXXXX, an
individual ("Consultant").
RECITALS
WHEREAS, the Company is looking at various companies for the purpose of
exploring potential mergers and acquisitions and to develop deal flow, strategic
alliances, strategic partners and potential joint agreements with companies in
order to grow its business; and
WHEREAS, Consultant has the background and knowledge to oversee,
analyze, structure and manage a potential transaction, as well as, among other
things, to oversee and manage the legal affairs of the Company; and
WHEREAS, the Company feels having the Consultant readily available to
assist the Company in such transactions could result in great value for the
Company; and
WHEREAS, Company desires to engage Consultant to perform certain
consulting services for it, and Consultant desires to perform consulting
services for the Company, subject to the terms and conditions of this Agreement;
THEREFORE, for the mutual promises contained herein, the parties hereto
agree as follows:
AGREEMENT
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1. ENGAGEMENT BY CONSULTANT.
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Company hereby engages Consultant and Consultant hereby agrees to hold
himself available to render, and to render at the request of the Company,
independent advisory and consulting services for the Company to the best of his
ability, upon the terms and conditions hereinafter set forth. Such consulting
services shall include, but not be limited to, consulting advice and performance
of services as outlined in Exhibit A.
2. TERM.
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The term of this Agreement shall commence on December 1, 2001 through
and including November 30, 2002 unless terminated or extended in accordance with
provisions of this Agreement.
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3. COMPENSATION.
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In consideration of the services to be rendered pursuant to this
Agreement, Consultant shall be entitled to receive compensation as outlined in
Exhibit B.
4. VESTING.
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It is expressed understood and agreed that the shares granted to
Consultant as outlined in Exhibit B are vested immediately upon execution of
this Agreement.
5. INDEPENDENT CONTRACTOR.
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It is expressly agreed that Consultant is acting as an independent
contractor in performing his services hereunder, and this Agreement is not
intended to, nor does it create, an employer-employee relationship nor shall it
be construed as creating any joint venture or partnership between the Company
and Consultant. Consultant shall be responsible for all applicable federal,
state and any other taxes related to Consultant's consulting fee and Company
shall not withhold or pay any such taxes on behalf of Consultant, including
without limitation social security, federal, state and other local income taxes.
Since Consultant is acting solely as an independent contractor under this
Agreement, Consultant shall not be entitled to insurance or other benefits
normally provided by Company to its employees.
6. ASSIGNMENT.
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This Agreement is a personal one being entered into in reliance upon
and in consideration of the singular personal skill and qualifications of
Consultant. Neither Consultant nor the Company shall voluntarily, or by
operation of law assign or otherwise transfer the obligations incurred on its
part pursuant to terms of this Agreement without the prior written consent of
the other party. Any attempt at assignment or transfer by either party of its
obligations hereunder, without such consent, shall be null and void.
Notwithstanding the foregoing, Consultant may assign this Agreement to
Consultant's personal services loan-out company that will loan out the services
of Consultant to the Company.
7. CONFIDENTIALITY.
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Consultant recognizes that during the course of Consultant's activities
on behalf of the Company, he will accumulate certain proprietary and
confidential information and trade secrets used in the Company's business and
will have divulged to him certain confidential and proprietary information and
trade secrets about the business, operations and prospects of the Company, which
constitute valuable business assets of the Company. Consultant hereby
acknowledges and agrees that such information, except for information which is
in the public domain prior to Consultant's receipt thereof, or which
subsequently becomes part of the public
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domain other than by Consultant's breach of a confidentiality obligation, or
which Consultant can clearly demonstrate was in his possession prior to receipt
thereof from the Company and was developed by Consultant or received by
Consultant from a third-party without breach of such third-parties
confidentiality obligations with respect thereto ("Proprietary Information") is
confidential and proprietary and constitutes trade secret information and the
Proprietary Information belongs to the Company and not to Consultant. Consultant
agrees, to the extent not prohibited by law, that he shall not, at any time
during or after the Term of this Agreement and three years after the expiration
or termination of this Agreement, disclose, divulge or make known, directly or
indirectly, to any person, or otherwise use or exploit in any manner any
Proprietary Information obtained by Consultant under this Agreement, except in
connection with and to the extent required by his performance of his duties
hereunder for the Company. Upon termination of this Agreement, Consultant shall
deliver to Company all Proprietary Information.
8. TERMINATION.
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This Agreement may be terminated on the occurrence of any one of the
following events:
8.1 The expiration of the Term hereof;
8.2 By the Company "with cause," effective upon delivery of written
notice to Consultant given at any time (without any necessity for prior notice)
if any of the following shall occur:
(a) a material breach of this Agreement by Consultant, which
breach has not been cured within thirty (30) days after a written
demand for such performance is delivered to Consultant by the Company
that specifically identifies the manner in which the Company believes
that Consultant has breached this Agreement;
(b) any material acts or events which inhibit Consultant from
fully performing his responsibilities to the Company in good faith,
such as (i) a felony criminal conviction; or (ii) any other criminal
conviction involving Consultant's lack of honesty or Consultant's moral
turpitude.
9. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF COMPANY.
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The obligations of the Consultant described in this Agreement consist
solely of the furnishing of information and advice to the Company. In no event
shall Consultant be required by this Agreement to act as the agent of the
Company or otherwise to represent or make decisions for the Company. All final
decisions with respect to acts of the Company or its affiliates, whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of the Company or such affiliates and Consultant shall
under no circumstances be liable for any expenses incurred or loss suffered by
the Company as a consequence of such decisions.
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10. GENERAL PROVISIONS.
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10.1 Governing Law and Jurisdiction. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of California. Each
of the parties hereto consents to such jurisdiction for the enforcement of this
Agreement and matters pertaining to the transaction and activities contemplated
hereby.
10.2 Attorneys' Fees. In the event a dispute arises with respect to
this Agreement, the party prevailing in such dispute shall be entitled to
recover all expenses, including, without limitation, reasonable attorneys' fees
and expenses incurred in ascertaining such party's rights, in preparing to
enforce or in enforcing such party's rights under this Agreement, whether or not
it was necessary for such party to institute suit.
10.3 Complete Agreement. This Agreement supersedes any and all of the
other agreements, either oral or in writing, between the Parties with respect to
the subject matter hereof and contains all of the covenants and agreements
between the parties with respect to such subject matter in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, oral or otherwise, have been made by any
party, or anyone herein, and that no other agreement, statement or promise not
contained in this Agreement shall be valid or binding. This Agreement may be
changed or amended only by an amendment in writing signed by all of the Parties
or their respective successors-in-interest.
10.4 Binding. This Agreement shall be binding upon and inure to the
benefit of the successors-in-interest, assigns and personal representatives of
the respective Parties.
10.5 Notices. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery or first class mail,
addressed as follows:
Party: Company: Hollywood Xxxxxxxx.xxx, Inc.
------ 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxxxx, President
Phone: 000-000-0000
Consultant: Xxxx Xxxxxxx
P. O. Xxx 00000
Xxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) business days
after deposit in any United States Post Office in the continental United States,
postage prepaid, if mailed. No notices may be sent via computer generated
electronic mail (so-called "email").
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10.6 Unenforceable Terms. Any provision hereof prohibited by law or
unenforceable under the law of any jurisdiction in which such provision is
applicable shall as to such jurisdiction only be ineffective without affecting
any other provision of this Agreement. To the full extent, however, that such
applicable law may be waived to the end that this Agreement be deemed to be a
valid and binding agreement enforceable in accordance with its terms, the
Parties hereto hereby waive such applicable law knowingly and understanding the
effect of such waiver.
10.7 Execution in Counterparts. This Agreement may be executed in
several counterparts and when so executed shall constitute one agreement binding
on all the Parties, notwithstanding that all the Parties are not signatory to
the original and same counterpart.
10.8 Further Assurance. From time to time each Party will execute and
deliver such further instruments and will take such other action as any other
Party may reasonably request in order to discharge and perform their obligations
and agreements hereunder and to give effect to the intentions expressed in this
Agreement.
10.9 Incorporation by Reference. All exhibits referred to in this
Agreement are incorporated herein in their entirety by such reference.
10.10 Miscellaneous Provisions. The various headings and numbers herein
and the grouping of provisions of this Agreement into separate articles and
paragraphs are for the purpose of convenience only and shall not be considered a
party hereof. The language in all parts of this Agreement shall in all cases be
construed in accordance with its fair meaning as if repared by all Parties to
the Agreement and not strictly for or against any of the Parties.
11. INDEMNIFICATION.
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Both Parties shall indemnify, defend and hold the other party harmless
against any and all claims, loss, cost, liability, or expense (including,
without limitation, reasonable attorneys' fees and costs) incurred, sustained
and/or paid by either party arising out of (i) any breach by either party of any
of its representations, warranties or covenants made under or in connection with
this Agreement, or (ii) the gross negligence or willful misconduct of either
party in its performance under this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
"COMPANY" "CONSULTANT"
HOLLYWOOD XXXXXXXX.XXX, INC., XXXX XXXXXXX,
a Delaware Corporation an individual
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxx
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Xxxxxxx Xxxxxxxx Fed. Tax ID ____________________
Chief Executive Officer
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EXHIBIT A
ENGAGEMENT BY CONSULTANT:
During the term of this Agreement, Consultant will provide
consultation, advice, analysis, structure and manage the Company's efforts to
expand its business and to develop deal flow, strategic alliances, strategic
partners and potential joint venture agreements, including, but not limited to,
the following areas:
1. Strategic partners
2. Strategic alliances
3. Joint venture agreements
In addition to the above, Consultant will directly supervise and manage
the legal affairs of the Company and such other projects as may be assigned from
time to time throughout the term of this Agreement.
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EXHIBIT B
COMPENSATION:
As compensation for providing the services as outlined in Exhibit A,
Consultant will receive the following:
Ten Million Two Hundred Thousand (10,200,000) shares of Hollywood
Xxxxxxxx.xxx, Inc. common stock at a value of One Cent ($.01) per share, vested
immediately upon execution of this Agreement.
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