EXHIBIT 4.1
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT ("AGREEMENT") IS TO BE EFFECTIVE AS OF THE 27TH DAY OF
SEPTEMBER, 2002, BY AND BETWEEN DIATECT INTERNATIONAL CORPORATION, WITH OFFICES
LOCATED AT 000 X. XXXXXXXXXX XXXXXXX, XXXXX XXXX, XX. 00000, AND XXXXX X. XXXXX
("CONSULTANT"), AN INDIVIDUAL, HAVING HIS PRINCIPAL ADDRESS AT 000 XXXXXX
XXXXXX, XXXXX X, XXXXXXXX, XX 00000.
FOR THE PURPOSES OF THIS AGREEMENT, EITHER OF THE ABOVE SHALL BE REFERRED TO AS
A "PARTY" AND COLLECTIVELY AS THE "PARTIES".
THE PARTIES HEREBY AGREE AS FOLLOWS:
APPOINTMENT OF XXXXX X. XXXXX. COMPANY HEREBY APPOINTS CONSULTANT AND CONSULTANT
HEREBY AGREES TO RENDER SERVICES TO COMPANY AS A MARKETING AND SALES
REPRESENTATIVE.
SERVICES. DURING THE TERM OF THIS AGREEMENT, CONSULTANT SHALL PROVIDE ADVICE TO
UNDERTAKE FOR AND CONSULT WITH THE COMPANY CONCERNING MANAGEMENT OF SALES AND
MARKETING RESOURCES, CONSULTING, STRATEGIC PLANNING, CORPORATE ORGANIZATION AND
STRUCTURE, FINANCIAL MATTERS IN CONNECTION WITH THE OPERATION OF THE BUSINESSES
OF THE COMPANY, EXPANSION OF SERVICES, ACQUISITIONS AND BUSINESS OPPORTUNITIES,
AND SHALL REVIEW AND ADVISE THE COMPANY REGARDING ITS AND HIS OVERALL PROGRESS,
NEEDS, AND CONDITION. CONSULTANT AGREES TO PROVIDE ON A TIMELY BASIS THE
FOLLOWING ENUMERATED SERVICES PLUS ANY ADDITIONAL SERVICES CONTEMPLATED THEREBY:
THE IMPLEMENTATION OF SHORT-RANGE AND LONG-TERM STRATEGIC PLANNING TO FULLY
DEVELOP AND ENHANCE THE COMPANY'S ASSETS, RESOURCES, PRODUCTS, AND SERVICES;
THE IMPLEMENTATION OF A MARKETING PROGRAM TO ENABLE THE COMPANY TO BROADEN THE
MARKETS FOR ITS SERVICES AND PROMOTE THE IMAGE OF THE COMPANY AND ITS PRODUCTS
AND SERVICES;
ADVISE THE COMPANY RELATIVE TO THE RECRUITMENT AND EMPLOYMENT OF KEY EXECUTIVES
CONSISTENT WITH THE EXPANSION OF OPERATIONS OF THE COMPANY.
THE IDENTIFICATION, EVALUATION, STRUCTURING, NEGOTIATING, AND CLOSING OF JOINT
VENTURES, STRATEGIC ALLIANCES, BUSINESS ACQUISITIONS, AND ADVISE WITH REGARD TO
THE ONGOING MANAGING AND OPERATING OF SUCH ACQUISITIONS UPON CONSUMMATION
THEREOF; AND
ADVISE AND RECOMMENDATIONS REGARDING CORPORATE FINANCING INCLUDING THE
STRUCTURES, TERMS, AND CONTENT OF BANK LOANS, INSTITUTIONAL LOANS, PRIVATE DEBT
FUNDING, MEZZANINE FINANCING, BLIND POOL FINANCING, AND OTHER PREFERRED AND
COMMON STOCK EQUITY PRIVATE OR PUBLIC FINANCING.
TERM. THE TERM ("TERM") OF THIS CONSULTING AGREEMENT SHALL BE FOR A PERIOD OF
SIX (6) MONTHS COMMENCING ON THE DATE HEREOF. THE CONTRACT WILL AUTOMATICALLY BE
EXTENDED FOR AN ADDITIONAL THREE (3) MONTHS. EITHER PARTY HERETO SHALL HAVE THE
RIGHT TO TERMINATE THIS AGREEMENT UPON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO
THE OTHER PARTY AFTER THE FIRST THREE (3) MONTHS.
COMPENSATION. SEE ATTACHMENT "A".
CONFIDENTIALITY. CONSULTANT WILL NOT DISCLOSE TO ANY OTHER PERSON, FIRM OR
CORPORATION, NOR USE FOR ITS OWN BENEFIT, DURING OR AFTER THE TERM OF THIS
CONSULTING AGREEMENT, ANY TRADE SECRETS OR OTHER INFORMATION DESIGNATED AS
CONFIDENTIAL BY COMPANY WHICH IS ACQUIRED BY CONSULTANT IN THE COURSE OF
PERFORMING SERVICES HEREUNDER. ANY FINANCIAL ADVICE RENDERED BY CONSULTANT
PURSUANT TO THIS CONSULTING AGREEMENT MAY NOT BE DISCLOSED IN ANY MANNER WITHOUT
THE PRIOR WRITTEN APPROVAL OF COMPANY.
INDEMNIFCATION. COMPANY, ITS AGENTS OR ASSIGNS HEREBY AGREE TO INDEMNIFY AND
HOLD CONSULTANT HARMLESS FROM AND AGAINST ALL LOSSES, CLAIMS, DAMAGES,
LIABILITIES, COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES,
COLLECTIVELY THE "LIABILITIES"), JOINT AND SEVERAL, ARISING FROM THE PERFORMANCE
OF THIS CONSULTING AGREEMENT, WHETHER OR NOT CONSULTANT IS PARTY TO SUCH
DISPUTE. THIS INDEMNITY SHALL NOT APPLY, HOWEVER, AND CONSULTANT SHALL INDEMNIFY
AND HOLD COMPANY, ITS AFFILIATES, CONTROL PERSONS, OFFICERS, EMPLOYEES AND
AGENTS HARMLESS FROM AND AGAINST ALL LIABILITIES, WHERE A COURT OF COMPETENT
JURISDICTION HAS MADE A FINAL DETERMINATION THAT CONSULTANT ENGAGED IN GROSS
RECKLESSNESS AND WILLFUL MISCONDUCT IN THE PERFORMANCE OF ITS SERVICES
HEREUNDER.
INDEPENDENT CONTRACTOR. CONSULTANT AND COMPANY HEREBY ACKNOWLEDGE THAT
CONSULTANT IS AN INDEPENDENT CONTRACTOR. CONSULTANT SHALL NOT HOLD ITSELF OUT
AS, NOR SHALL IT TAKE ANY ACTION FROM WHICH OTHERS MIGHT INFER THAT IT IS AN
AGENT OF OR A JOINT VENTURE OF COMPANY.
MISCELLANEOUS. THIS CONSULTING AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING OF
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES AND CANCELS
ANY PRIOR COMMUNICATIONS, UNDERSTANDINGS AND AGREEMENTS BETWEEN THE PARTIES.
THIS CONSULTING AGREEMENT IS NON-EXCLUSIVE AND CANNOT BE MODIFIED OR CHANGED,
NOR CAN ANY OF ITS PROVISIONS BE WAIVED, EXCEPT BY WRITTEN AGREEMENT SIGNED BY
ALL PARTIES. THIS CONSULTING AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
IN THE EVENT OF ANY DISPUTE AS TO THE TERMS OF THIS CONSULTING AGREEMENT, THE
PREVAILING PARTY IN ANY LITIGATION SHALL BE ENTITLED TO REASONABLE ATTORNEY'S
FEES.
NOTICES. ANY NOTICE REQUIRED OR PERMITTED HEREUNDER SHALL BE GIVEN IN WRITING
(UNLESS OTHERWISE SPECIFIED HEREIN) AND SHALL BE DEEMED EFFECTIVELY GIVEN UPON
PERSONAL DELIVERY OR SEVEN BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES
POSTAL SERVICE, BY (A) ADVANCE COPY BY FAX, (B) MAILING BY EXPRESS COURIER OR
REGISTERED OR CERTIFIED MAIL WITH POSTAGE AND FEES PREPAID, ADDRESSED TO EACH OF
THE OTHER PARTIES THEREUNTO ENTITLED AT THE FOLLOWING ADDRESSES, OR AT SUCH
OTHER ADDRESSES AS A PARTY MAY DESIGNATE BY TEN DAYS ADVANCE WRITTEN NOTICE TO
EACH OF THE OTHER PARTIES AT THE ADDRESSES ABOVE AND TO THE ATTENTION OF THE
PERSONS THAT HAVE SIGNED BELOW.
PLEASE CONFIRM THAT THE FOREGOING SETS FORTH OUR UNDERSTANDING BY SIGNING THE
ENCLOSED COPY OF THIS CONSULTING AGREEMENT WHERE PROVIDED AND RETURNING IT TO ME
AT YOUR EARLIEST CONVENIENCE.
ALL PARTIES SIGNING BELOW DO SO WITH FULL AUTHORITY:
PARTY RECEIVING SERVICES: PARTY PROVIDING SERVICES:
DIATECT INTERNATIONAL CORPORATION XXXXX XXXXX, AN INDIVIDUAL
BY: _____________________________ BY:_____________________________
XXX X. XXXXX, PRESIDENT XXXXX XXXXX, AN INDIVIDUAL
ATTACHMENT "A"
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PAYMENT FOR SERVICES:
A. FOR THE SERVICES RENDERED AND PERFORMED BY XXXXX X. XXXXX DURING THE TERM OF
THIS AGREEMENT, COMPANY SHALL, UPON ACCEPTANCE OF THIS AGREEMENT: PAY TO XXXXX
X. XXXXX FIVE HUNDRED THOUSAND (500,000) FREE-TRADING SHARES OF DTCT.OB STOCK
FOR SIX (6) MONTHS OF SERVICE.
ACCEPTED WITH FULL AUTHORITY:
DIATECT INTERNATIONAL CORPORATIONS
BY: _____________________________
XXX X. XXXXX, PRESIDENT
