EXHIBIT
4.5
CONSULTING AGREEMENT
WITH
XXXXX X. XXXXXX
CONSULTING AGREEMENT
This Consulting Agreement (Agreement) is made and entered into as of this
15th day of February, 2001, by and between J-Bird Music Group LTD, of Wilton,
Connecticut (The Principal), and Xxxxx X. Xxxxxx of Fairfield, Connecticut
(Consultant), 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 March 1, 2001 and
terminating on May 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. Duties will
include but not be limited to the following: video productions, creating and
soliciting J-Bird programming opportunities to television, cable and pay-
per-operators, developing corporate sponsorship opportunities for J-Bird & its
artists, develop festivals and live events. Additionally Consultant will be
working with J-Bird to A&R utilize past and current industry contacts for
securing new talent for the company.
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, if needed,
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, 200,000 restricted and
unregistered common shares (the " Shares") of J-Bird Music Group LTD common
stock per the term of the agreement.
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 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.
6. 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.
7. 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.
8. 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 X. Xxxxxx
00 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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.
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.
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/XXXXX X. XXXXXX /S/HOPE X. XXXXXXXXXX
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Xxxxx X. Xxxxxx Hope X. Xxxxxxxxxx
J-Bird Music Group LTD
