Exhibit 4a
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement"),
dated as of August 1, 2002, between XxxxXxxx.xxx, Inc.,
a Nevada corporation (the "Company"), and Xxxxx
Xxxxxxxx ("Consultant"), an individual.
WITNESSETH:
WHEREAS, Company desires to retain Consultant to consult
and advise the Company, and Consultant is willing to
provide such services:
NOW, THEREFORE, in consideration of the mutual
undertakings contained herein, the parties agree as
follows:
Consulting Arrangement. The Company hereby engages
Consultant as an independent contractor and not as an
employee, to render consulting services to
Xxxxxxxx.xxx, Inc. only and to no other company as
hereinafter provided; this agreement is based on clear
acknowledgement that ALL services are solely for
XxxxXxxx.xxx, Inc. and the implementation of its
corporate and business plans alone. Services therefore
remain very focused and DO NOT need to address the many
Corporate Consolidation Issues under prior proposals. In
addition, Consultant hereby accepts such engagement
for a period commencing on August 1, 2002, and ending
on the August 1, 2003. Consultant agrees that
Consultant will not have any authority to bind or act on
behalf of the Company. Consultant shall at all
times be an independent contractor hereunder, rather
than an agent, coventurer, employee or representative of
the Company. The Company hereby acknowledges and agrees
that Consultant may engage directly or indirectly in
other businesses and ventures and shall not be required
to perform any services under this Agreement when, or
for such periods in which, the rendering of such
services shall unduly interfere with such other
businesses and ventures, providing that such
undertakings do not completely preempt Consultant's
availability during the term of this Agreement.
Neither Consultant nor his employees will be
considered by reason of the provisions of this
Agreement or otherwise as being an employee of the
Company or as being entitled to participate in any
health insurance, medical, pension, bonus or similar
employee benefit plans sponsored by the Company for
its employees. Consultant shall report all
earnings under this Agreement in the manner
appropriate to its status as an independent contractor
and shall file all necessary reports and pay all taxes
with respect to such payments.
Services
1. Subject to the terms and conditions of this
Agreement, the Company hereby engages the
Consultant, and Consultant hereby accepts the
engagement, to provide advice, analysis and
recommendations (the "Services") to the Company, and not
to any other companies except for the client company,
XxxxXxxx.xxx, Inc. with respect to the following:
A. Online content development and coordination for the
Company's web presence including concept, performance,
website, products, alliances, corporate launch,
ecommerce.
B. Coordinating corporate administrative activities
including compliance and filing issues; the following
is a summary of some of the administrative activities
MCS will coordinate. ALL FEES WILL BE PAID BY
XXXXXXXX.XXX, INC. (for the year)
* 10KSB
* Schedule 13D
* Schedule 13G
* Form 5
* 10QSBs
* Form 3
* Form 4
* Form 8-Ks
* Schedule 14A
* Schedule 14C
* Form S-8
C. BBX entry services including:
1. Managing the recruiting process for an outside
director.
2. Facilitating the engagement of a new Accounting
firm which complies with the peer review requirement for
Audit and related SEC work.
3. Assist with the establishment of an audit
committee.
4. Administer the scheduling and holding of an Annual
Shareholders Meeting with a quorum (1/3) of shareholders
in attendance.
5. Conduct an "audit" the Company's shareholder base
with the transfer agent to determine the number of round
lot holders.
6. Initiate the subscription to Oracle Small Business
Service to facilitate seamless filing of SEC required
XXXXX documents.
D. Services expressly prohibited by the Client under the
terms of this Agreement include:
. Reorganizations, mergers, divestitures, and
due diligence studies;
. Capital sources and the formation of
financial transactions;
. Banking methods and systems;
. Guidance and assistance in available
alternatives to maximize shareholder value;
. Periodic preparation and distribution of
research reports and information to the
broker/dealer and investment banking
community;
. Press Release preparation and distribution.
E. Contractor will work on no other projects/activities
except those expressly mentioned in this agreement. In
addition, Contractor will not work on or for any other
companies except for the client company, XxxxXxxx.xxx,
Inc. Work performed for any other company will be at an
additional fee.
During the term of this Agreement, Consultant shall
render such consulting services as the Company from
time to time reasonably requests, which services
shall include but not be limited to those rendered by
Consultant to Company prior to the date hereof;
provided that:
(a) To the extent practicable such services shall be
furnished only at such time and places as are mutually
satisfactory to the Company and Consultant; and
(b) Consultant shall not be called upon to devote
more than 10 hours in any week in performing such
services and shall not be required to perform any
services hereunder while Consultant is on vacation or
suffering from an illness.
Duties of Company
1. Subject to the terms and conditions of this
Agreement, Company shall take all actions necessary to
obtain and maintain a qualification for quotation or
listing on the over the counter bulletin board,
including:
* Timely filing of all required SEC reports,
including all required financial information
* Compliance with all existing and any
proposed or new qualification or listing requirements on
the over the counter bulletin board, including but not
limited to those proposed requirements as set forth on
Schedule A.
2. Company shall not enter into any binding
commitments, obligations or agreements without prior
notice and opportunity to review given to Consultant.
3. Company shall promptly furnish to Consultant upon
request any requested information, written or oral,
concerning the business and affairs of the Company.
4. Company shall not issue any additional shares of
common stock or options for or securities convertible
into common stock, or undertake any forward or reverse
split of its common stock, or undertake any other action
requiring stockholder approval as set
forth in Schedule A, without the prior written approval
of Consultant, which shall not be unreasonably withheld
upon Company furnishing adequate and sufficient
justification for such proposed action.
5. Company shall promptly comply with all reasonable
requests of Consultant under this Agreement.
6. Notwithstanding the provisions of this agreement,
any failure of Company to fully and completely comply
with all Company's duties hereunder shall give
Consultant the right to immediately and without notice
terminate this Agreement and retain all shares
issued to Consultant hereunder, which shall be deemed
fully earned by Consultant in the event of such
termination. All of Company's agreements,
representations, warranties, duties and obligations
under this Agreement shall survive any such termination.
7. Time is of the essence for Company in this
provision concerning Company's Duties.
Compensation and Expenses
For the Services provided by the Consultant, the
Company (i) shall compensate the Consultant by
delivering to the Consultant, 275,000 total shares,
deliverable according to the following schedule:
Shares Time of Delivery
------------ ------------------------
112,500 August 1, 2002
150,000 October 1, 2002
12,500 January 1, 2003
All shares shall be of the common stock of the
Company ("Common Stock") and are to be Freely
Tradable (as hereinafter defined). "Freely Tradable"
means shares that may be sold at any time by the
Consultant free of any contractual or other restriction
on transfer and which have been appropriately listed or
registered for such sale on all securities markets on
any shares of the Common Stock are currently so listed
or registered; and (ii) the Company shall be
responsible for the payment of the reasonable
out-of-pocket costs and expenses of Consultant incurred
prior to, or on or after the date of this Agreement,
in connection with its engagement under this
Agreement, including, but not limited to, reasonable
fees and disbursements of counsel for Consultant, travel
and related expenses, document production and
computer database charges. The Company shall reimburse
Consultant for such costs and expenses as they are
incurred, promptly after receipt of a request for
reimbursement from Consultant.
Successors and Assigns
This Agreement is binding upon and inures to the
benefit of the Company and its affiliates, successors
and assigns and is binding upon and inures to the
benefit of Consultant and his successors and assigns;
provided that in no
event shall Consultant's obligations to perform the
Services be delegated or transferred by Consultant
without the prior written consent of the Company.
Term
This Agreement shall commence on the date hereof and,
unless sooner terminated in accordance with the
provisions of Section 6 hereof, shall expire on
August 1, 2003. However, the Agreement may be
extended by mutual written consent.
Termination
Either the Company or Consultant may terminate this
Agreement for material breach upon at least thirty (30)
days prior written notice specifying the nature of the
breach, if such breach has not been substantially cured
within the thirty (30) day period.
Independent Contractor Relationship
Consultant and the Company are independent contractors
and nothing contained in this Agreement shall be
construed to place them in the relationship of partners,
principal and agent, employer/employee or joint
ventures. Neither party shall have the power or right
to bind or obligate the other party, nor shall it hold
itself out as having such authority.
Indemnification
Company shall indemnify and hold harmless the
Consultant from and against any and all losses,
damages, liabilities, reasonable attorney's fees, court
costs and expenses resulting or arising from any
third-party claims, actions,
proceedings, investigations, or litigation relating to
or arising from or in connection with this Agreement,
or any act or omission by Company.
Notice
For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing
and shall be deemed to have been duly given (i) when
delivered, if personally delivered, (ii) when sent by
facsimile transmission, when receipt therefore has
been duly received, or (iii) when mailed by United
States registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier,
addressed set forth in the preamble to this
Agreement or to such other address as any party may
have furnished to the other in any writing in
accordance herewith, except that notices of change
of address shall be effective only upon receipt.
Miscellaneous
No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or
discharge is agreed to in writing signed by
authorized officers of each party. No waiver by either
party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been
made by either party which are not set forth
expressly in this Agreement. The validity,
interpretation, construction and performance of this
Agreement shall be governed by the internal laws of
the State of Nevada. Any controversy arising under or
in relation to this Agreement shall be settled by
binding arbitration in Las Vegas, Nevada in accordance
with the laws of the State of Nevada and the rules of
the American Arbitration Association.
Counterparts
This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an
original but all of which together will constitute one
and the same instrument.
Severability
If in any jurisdiction, any provision of this
Agreement or its application to any party or
circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such
jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability,
without invalidating the remaining provisions hereof
and without affecting the validity or enforceability of
such provision in any other jurisdiction or its
application to other parties or circumstances. In
addition, if any one or more of the provisions contained in
this Agreement shall for any reason in any jurisdiction be
held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be
construed, by limiting and reduction it, so as to be
enforceable to the extent compatible with the
applicable law of such jurisdiction as it shall then
appear.
By executing this Agreement, Company acknowledges that
the services to be rendered are not in connection
with a capital raising transaction and do not
directly or indirectly promote or maintain a market for
the securities of Company. IN WITNESS HEREOF, this
Consulting Agreement has been executed by the
Company and Consultant as of the date first written
above.
Signature of Contractor
Name: Xxxxx Xxxxxxxx
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, 00000
Signature: _______________________________
Signature of Company
Name: XxxxXxxx.xxx, Inc.
Address: 0000 X. Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxx, XX 00000
Signature: _______________________________
