Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into as of the 1st day
of June, 1999, by and between J.A.B. INTERNATIONAL, INC., a Nevada corporation
(the "Company"), and Xxxxxx Xxxxxxxx, an individual, ("Consultant").
1. ENGAGEMENT OF CONSULTANT. The Company hereby engages Consultant to
assist the Company.
2. COMPENSATION. As total and complete compensation for his services
provided herein, the Company shall issue to Consultant 225,000 shares ("Shares")
of the Company's restricted common stock ("Stock"), par value $.001 per share.
2.1 EXPENSES. Consultant shall assume and shall be responsible for all
expenses incurred by Consultant and Consultant shall be responsible for all
disbursements made in Consultant's activities. Except as otherwise specifically
authorized by the President of the Company in advance, in writing, Consultant
shall not incur on behalf of Company, and Company shall not have, any liability
for any expenses, costs, and disbursements of Consultant. Consultant shall
indemnify and hold Company harmless from and against any and all claims,
actions, or liability for any expenses, costs, and disbursements, including
attorneys' fees, of Consultant or its agents, servants, contractors, or
employees.
3. TERM OF AGREEMENT. This Agreement shall commence on the date first set
forth above and shall continue in full force and effect for a period of one (1)
year. Either party, at its option, may terminate this Agreement prior to the
expiration of such one (1)-year period by providing the other party written
notice of intent to terminate not less than thirty (30) days prior to the
effective date of termination. Notwithstanding the foregoing, the Company may
immediately terminate this Agreement if Consultant materially breaches an
obligation hereunder.
3.1 POST-TERMINATION OBLIGATIONS OF CONSULTANT. Upon any termination of
this Agreement:
(a) Consultant shall immediately cease any activities for the
Company.
(b) Consultant shall turn over to the Company on or before the
effective date of termination any property of the Company in his possession, in
the same condition as when it was received by Consultant, ordinary wear and tear
excepted. All records or papers of any kind relating to the Company's business
in the possession of Consultant or within Consultant's scope of services shall
be and shall remain the property of the Company and shall be surrendered to the
Company immediately on demand.
(c) All Confidential Information (as defined in Article 7 below)
shall remain the sole property of the Company, shall be left in its entirety in
the undisputed possession and control of the Company, and any Confidential
Information in the custody or control of the Consultant shall be remain the
property of the Company.
(d) Consultant shall comply with all obligations meant to survive
termination.
4. RELATIONSHIP OF THE PARTIES; CONSULTANT'S LIMITATIONS OF AUTHORITY.
Except as otherwise specifically set forth in this Agreement, Consultant shall
have no authority to represent Company as an agent of Company. Consultant shall
have no authority to bind Company by any contract, representation,
understanding, act, or deed concerning Company. Except as otherwise specifically
set forth herein, neither the making of this Agreement nor the performance of
any part of the provisions hereof shall be construed to constitute Consultant as
an employee, agent or representative of Company for any purpose,
nor shall this Agreement be deemed to establish a joint venture or partnership.
Consultant, in all respects, shall be deemed an independent contractor with
respect to the performance by Consultant of its obligations hereunder.
5. ASSIGNMENT. Neither this Agreement nor any of the duties or obligations
of Consultant herein may be voluntarily, involuntarily, directly, or indirectly
assigned, delegated, or otherwise transferred or encumbered by Consultant
without the prior, written approval of the Company. Any such assignment,
delegation, transfer, or encumbrance without such approval will be void and will
constitute a "material breach" of this Agreement entitling the Company to
terminate this Agreement immediately. A change in voting control of Consultant
shall be deemed an assignment of this Agreement. This Agreement is fully
assignable by the Company and shall inure to the benefit of any assignee or
other successor.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION. Consultant acknowledges and agrees that
in the course of performing the services for and on behalf of the Company, it
will come into possession of confidential and proprietary information of the
Company ("Confidential Information"): including information (i) of a technical
nature such as, but not limited to, methods, know-how, formulae, processes,
discoveries, machines, inventions, intellectual property, computer programs and
similar items or research projects; (ii) of a business nature such as, but not
limited to, business plans, information about customers and customer accounts,
purchasing, profits, sales of products, and sources of supplies, and (iii)
pertaining to future developments such as, but not limited to, research and
development, future marketing or plans and future expansion plans. The term
"Confidential Information" shall not be deemed to include information that is
published, information that is generally known throughout the industry or which
generally is available to the industry without restriction through no fault of
Consultant.
6.2 OWNERSHIP BY THE COMPANY. Consultant acknowledges and agrees that:
(a) all Confidential Information is and shall remain, at all times, the sole
property of the Company and that Consultant has not and will not obtain any
proprietary interest in any Confidential Information regardless of how it was
developed or acquired (it shall be no defense to any action brought to enforce
this Agreement that Consultant developed or acquired, in whole or in part, the
Confidential Information); (b) the Confidential Information is a valuable,
special and unique asset of the Company which gives the Company certain
advantages over its actual and potential competitors, and (c) the Confidential
Information constitutes "trade secrets."
6.3 PROTECTION OF CONFIDENTIAL INFORMATION. Consultant, for itself and
its officers, directors, employees, affiliates, and agents, shall preserve and
hold in a fiduciary capacity for the benefit of the Company, all Confidential
Information which may be communicated to, acquired by, or learned of by
Consultant during the course or as a result of its relationship or dealings with
the Company. Consultant shall use the Confidential Information only for the
performance of the services. Consultant shall not reduce to writing or otherwise
record or copy any Confidential Information, unless required to do so in order
to fulfill its obligations to the Company or as otherwise authorized by the
President of the Company.
6.4 DISCLOSURE TO OTHERS. Consultant understands and agrees that no
Confidential Information shall be revealed, disclosed, divulged, sold, licensed,
exchange, or released, or otherwise made available, directly or indirectly
(either in writing, verbally, by electronic transmission, or by any other form
or manner of communication), to third persons or entitles for purposes unrelated
to the business objectives of the Company without prior written authorization of
an executive officer of the Company. If Consultant must consult with any third
party and disclose to such third party any of the Confidential Information, then
Consultant must obtain the prior written consent and authorization of an
executive officer of the Company prior to such disclosure. Confidential
Information shall be disclosed to employees or agents of Consultant only on an
"as needed" basis. Consultant shall comply with all requirements reasonably
imposed by the Company regarding disclosure of the Confidential Information to
third parties.
6.5 LEGALLY COMPELLED DISCLOSURE. If Consultant becomes legally
compelled to disclose any of the Confidential Information or any part thereof,
then it will provide the Company with prompt, written notice thereof, unless it
is legally prohibited from so doing, so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Agreement. If any such protective order or other remedy is not obtained or
the Company waives compliance with the provisions of this Agreement, then the
Consultant will furnish only that information relating to the Confidential
Information which is legally required and will exercise its best efforts so that
confidential treatment will be accorded to any Confidential Information so
disclosed.
6.6 CONTINUING OBLIGATIONS. Consultant understands and agrees that its
obligations under this Article 7 (specifically including the obligations to
preserve, protect and not disclose, make available for use, or use for unrelated
business purposes, the Confidential Information), continue indefinitely and do
not, under any circumstances or for any reason (specifically including wrongful
termination of Consultant's services for the Company), cease upon any
termination of Consultant's relationship with or services to the Company.
6.8 INJUNCTIVE RELIEF. Consultant acknowledges that the Company will be
irreparably damaged if Consultant fails to protect the Confidential Information
by failing to comply with its obligations under this Article 7. Consultant
agrees to pay all court costs and reasonable attorney's fees and expenses
incurred by the Company in enforcing the provisions of this Article 7. Further,
the Company may obtain, and Consultant hereby consents to, an EX PARTE
injunction, restraining order, temporary restraining order, or the like if a
violation of this Article 7, in the Company's sole discretion, occurs, appears
imminent, or is threatened, without the requirement of having to post a bond or
other form of security.
7. INDEMNIFICATION. Consultant indemnifies and holds the Company and its
officers, directors, employees, and agents harmless from and against any and all
claims, liabilities, expenses, costs and damages (including reasonable
attorneys' fees from defending the same) alleged against or incurred by the
Company in connection with or arising out of Consultant's services under this
Agreement.
8. MISCELLANEOUS PROVISIONS.
8.1 ENTIRE AGREEMENT; BINDING EFFECT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes any prior agreements or understandings between the
parties. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and authorized assigns.
8.2. MODIFICATION. This Agreement may be modified only upon the
execution of a written agreement signed by both of the parties.
8.3 WAIVERS. No failure on the part of either party hereto to exercise,
and no delay in exercising, any right, power, or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any right,
power, or remedy hereunder preclude any other or further exercises thereof or
the exercise of any other right, power, or remedy.
8.4 GOVERNING LAW; VENUE AND JURISDICTION. This Agreement shall be
deemed to have been entered into in, and for all purposes shall be governed by,
the laws of the State of Florida, without regard to Florida's choice of law
decisions. The parties agree that any action brought by either party against the
other in any court, whether federal or state, shall be brought within Orange
County, Florida, in the applicable state and federal judicial districts and do
hereby waive all questions of personal jurisdiction or venue for the purpose or
carrying out this provision.
8.5 ATTORNEYS' FEES. In the event of a dispute under this Agreement,
the non-prevailing party shall pay all of the prevailing party's reasonable
attorneys' fees and costs incurred in connection with any such action, including
post-judgment collection proceedings.
8.6 SEVERABILITY. In the event that any provision of this Agreement, in
whole or in part (or the application of any provision to a specific situation),
is held to be invalid or unenforceable by the final judgment of a court of
competent jurisdiction after appeal or the time for appeal has expired, such
invalidity shall be limited to such specific provision or portion thereof (or to
such situation), and this Agreement shall be construed and applied in such
manner as to minimize such unenforceability. This Agreement shall otherwise
remain in full force and effect.
8.7 NOTICES. Whenever any demand, request, approval, consent or notice
(singularly and collectively, "Notice") shall or may be given by one party to
the other, such Notice shall be addressed to the parties at their respective
addresses as set forth below and served by (i) hand, (ii) a nationally
recognized overnight express courier, or (iii) registered or certified mail
return receipt requested. The date the Notice is received shall be the date of
service of Notice. In the event an addressee refuses to accept delivery,
however, then Notice shall be deemed to have been served on either (i) the date
hand delivery is refused, (ii) the next business day after the Notice was sent
in the case of attempted delivery by overnight courier, or (iii) five (5)
business days after mailing the Notice in the case of registered or certificate
mail. Either party may, at any time, change its Notice address by giving the
other party Notice, in accordance with the above, stating the change and setting
forth the new address. Notices shall be addressed as follows:
If to Company: J.A.B. International, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: President
Facsimile No.: ______________________
If to Consultant: Xxxxxx Xxxxxxxx
0000 Xxxxx 000 Xxxx #X
Xxxxxxxxx, XX 00000
Facsimile No.: ______________________
Any party may change its address or telecopier number for purposes of this
paragraph by giving notice as provided herein.
8.8 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
In witness whereof, the parties hereto have executed this Agreement as of
the date and year first above written.
"COMPANY"
J.A.B. INTERNATIONAL, INC.
By: /s/ XXXXXXXXX X. XXXXXX
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Xxxxxxxxx X. Xxxxxx, President
"CONSULTANT"
/s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxxx
