EXHIBIT 4.3
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT (this "Agreement") is entered into as of February
12, 2004 by and between XxxxXxxx.xxx, Inc., a Nevada corporation (the
"Company"), and Xxxxxxxxxxx International Investments Ltd., Inc. (the
"Consultant").
RECITALS
A. The Company desires to be assured of the association and services of
Consultant and to avail itself of Consultant's experience, skills, abilities,
knowledge and background and is therefore willing to engage Consultant upon the
terms and conditions set forth herein; and
B. Consultant agrees to be engaged and retained by the Company upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. CONSULTING SERVICES. Consultant shall, on a part-time basis, provide
product marketing and advertising services to the Company (the "Consulting
Services").
2. TERM. The term of this Agreement shall commence as of the date
hereof and shall be effective a period of one year (the "Term"). This agreement
may be extended under the same terms by mutual agreement between Consultant and
the Company.
3. DIRECTION, CONTROL AND COORDINATION. Consultant shall perform the
Consulting Services under the sole direction and with the approval of the
Company's Board of Directors or an officer of the Company to whom such direction
is delegated by resolution of the Board of Directors.
4. DEDICATION OF RESOURCES. Consultant shall devote such time,
attention and energy as is necessary to perform and discharge the duties and
responsibilities under this Agreement in an efficient, trustworthy and
professional manner.
5. STANDARD OF PERFORMANCE. Consultant shall use its best reasonable
efforts to perform its consulting services as an advisor to the Company in an
efficient, trustworthy and professional manner. Consultant shall perform its
consulting services to the sole satisfaction of, and in conjunction and
cooperation with, the Company.
6. COMPENSATION. The Company shall pay to Consultant a total of ten
million (10,000,000) shares of common stock of the Company (the "Common Stock")
in exchange for the Consulting Services. The Company shall issue 6,500,000
shares of the Common Stock to the Consultant upon the execution of this
Agreement by both parties to this Agreement. The
Company hereby covenants that it shall issue 3,500,000 shares of the Common
Stock to the Consultant promptly upon the effectiveness of the Company amending
its Articles of Incorporation to authorize the Company to issue a sufficient
number of shares of Common Stock so that it may issue such 3,500,000 shares of
the Common Stock to the Consultant. The Company shall issue certificates
representing the Common Stock only to the natural persons employed by, or
otherwise working for, the Consultant who provide the Consulting Services.
7. REGISTRATION OF THE COMMON STOCK. Commencing on the date hereof, the
Company shall use its best efforts to promptly register the Common Stock
pursuant to the Securities Act of 1933, as amended, on Securities and Exchange
Commission ("SEC") Form S-8. Consultant hereby covenants that if he or she is or
becomes a director, officer, holder of ten percent (10%) of the equity and/or
voting securities of the Company, or is, or becomes an "affiliate" of the
Company (for the purposes of this Agreement, "affiliate" shall mean an affiliate
of, or person affiliated with, a specified person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the person specified), he or she will not offer to sell or
resell the Common Shares registered on Form S-8, except pursuant to the
provisions of SEC Rule 144, pursuant to a reoffer prospectus in compliance with
Form S-8 or pursuant to such other registration statement acceptable to the
Company in its sole discretion.
8. KNOWLEDGE OF INVESTMENT AND ITS RISKS. Consultant has knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Consultant's investment in the Common Stock. Consultant
understands that an investment in the Company represents a high degree of risk
and there is no assurance that the Company's business or operations will be
successful. Consultant has considered carefully the risks attendant to an
investment in the Company, and that, as a consequence of such risks, Consultant
could lose Consultant's entire investment in the Company.
9. INVESTMENT INTENT. Consultant hereby represents and warrants that
(i) it is acquiring the Common Stock for investment for the Consultant's own
account, not as a nominee or agent and not with a view to the resale or
distribution of all or any part of the Common Stock, and Consultant has no
present intention of selling, granting any participation in or otherwise
distributing any of the Common Stock within the meaning of the Securities Act of
1933, as amended (the "Securities Act") and (ii) Consultant does not have any
contracts, understandings, agreements or arrangements with any person and/or
entity to sell, transfer or grant participations to such person and/or entity,
with respect to any of the Common Stock.
10. ACCREDITED INVESTOR. The Consultant is an "Accredited Investor," as
that term is defined by Rule 501 of Regulation D promulgated under the
Securities Act.
11. DISCLOSURE. Consultant has reviewed information provided by the
Company in connection with the decision to purchase the Stock, including
Consultant's publicly-available filings with the SEC. The Company has provided
Consultant with all the information that Consultant has requested in connection
with the decision to purchase the Common Stock. Consultant further represents
that Consultant has had an opportunity to ask questions and receive answers from
the Company regarding the business, properties, prospects and financial
condition of the Company. All such questions have been answered to the full
satisfaction of Consultant.
12. NO REGISTRATION. Consultant understands that it must bear the
economic risk of its investment in the Company for an indefinite period of time.
Consultant further understands that (i) neither the offering nor the sale of the
Common Stock has been registered under the Securities Act or any applicable
state securities laws or securities laws of other applicable jurisdictions in
reliance upon exemptions from the registration requirements of such laws, (ii)
the Common Stock must be held by Consultant indefinitely unless the sale or
transfer thereof is subsequently registered under the Securities Act and any
applicable state securities laws, or an exemption from such registration
requirements is available, (iii) Section 7 notwithstanding, the Company is not
hereby under an obligation to register any of the Common Stock on Consultant's
behalf or to assist Consultant in complying with any exemption from
registration, and (iv) Consultant will rely upon the representations and
warranties made by the Company in this Agreement in order to establish such
exemptions from the registration requirements of the Securities Act and
applicable state securities laws or securities laws of other applicable
jurisdictions.
13. TRANSFER RESTRICTIONS. Consultant will not transfer any of the
Common Stock unless such transfer is exempt from registration under the
Securities Act and applicable state securities laws or securities laws of other
applicable jurisdictions, and, if requested by the Company, Consultant has
furnished an opinion of counsel satisfactory to the Company that such transfer
is so exempt. Consultant understands and agrees that (i) the certificate or
certificates evidencing the Common Stock will bear appropriate legends
indicating such transfer restrictions placed upon the Common Stock, (ii) the
Company shall have no obligation to honor transfers of any of the Common Stock
in violation of such transfer restrictions, and (iii) the Company shall be
entitled to instruct any transfer agent or agents for the securities of the
Company to refuse to honor such transfers.
14. LEGENDS. Consultant understands that certificates or other evidence
of the Common Stock may bear a legend substantially similar to the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT THAT IS THEN APPLICABLE TO THE SHARES,
AS TO WHICH THE PRIOR OPINION OF COUNSEL MAY BE REQUIRED BY THE ISSUER OR
ISSUER'S TRANSFER AGENT.
15. ADDITIONAL COVENANTS. Consultant covenants that it shall not engage
in any activities which are in connection with the offer or sale of securities
of the Company in a capital-raising transaction or directly or indirectly
promote or maintain a market for the Company's securities.
16. CONFIDENTIAL INFORMATION. Consultant recognizes and acknowledges
that by reason of performance of Consultant's services and duties to the Company
(both during the Term and before or after it) Consultant has had and will
continue to have access to confidential information of the Company and its
affiliates, including, without limitation, information and knowledge pertaining
to products and services offered, inventions, innovations, designs, ideas,
plans, trade
secrets, proprietary information, advertising, distribution and sales methods
and systems, and relationships between the Company and its affiliates and
customers, clients, suppliers and others who have business dealings with the
Company and its affiliates ("Confidential Information"). Consultant acknowledges
that such Confidential Information is a valuable and unique asset and covenants
that it will not, either during or for three (3) years after the term of this
Agreement, disclose any such Confidential Information to any person for any
reason whatsoever or use such Confidential Information (except as its duties
hereunder may require) without the prior written authorization of the Company,
unless such information is in the public domain through no fault of the
Consultant or except as may be required by law. Upon the Company's request, the
Consultant will return all tangible materials containing Confidential
Information to the Company.
17. RELATIONSHIP. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the parties, and
may not be construed as an employment agreement. No officer, employee, agent,
servant, or independent contractor of Consultant nor its affiliates shall at any
time be deemed to be an employee, agent, servant, or broker of the Company for
any purpose whatsoever solely as a result of this Agreement, and Consultant
shall have no right or authority to assume or create any obligation or
liability, express or implied, on the Company's behalf, or to bind the Company
in any manner or thing whatsoever.
18. NOTICES. Any notice required or desired to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered, sent by an overnight courier service, or sent by certified or
registered mail to the following addresses, or such other address as to which
one party may have notified the other in such manner:
If to the Company: XxxxXxxx.xxx, Inc.
0000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
If to the Consultant: Xxxxxxxxxxx International Investments Ltd., Inc.
-------------------------
-------------------------
19. APPLICABLE LAW. The validity, interpretation and performance of
this Agreement shall be controlled by and construed under the laws of the State
of Washington.
20. SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions of this Agreement.
21. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by such party. No waiver shall be valid unless
in writing and signed by an authorized officer of the Company or Consultant.
22. ASSIGNS AND ASSIGNMENT. This Agreement shall extend to, inure to
the benefit of and be binding upon the parties hereto and their respective
permitted successors and assigns; provided, however, that this Agreement may
not be assigned or transferred, in whole or in part, by the Consultant except
with the prior written consent of the Company.
23. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties with respect to its subject matter. It may not be changed orally
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is sought.
24. COUNTERPARTS. This Agreement may be executed by facsimile and in
counterparts each of which shall constitute an original document, and both of
which together shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
The Company: XXXXXXXX.XXX, INC.
By:
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Attorney-in-Fact
The Consultant: XXXXXXXXXXX INTERNATIONAL
INVESTMENTS LTD., INC.
By:
-------------------------------
Name: Xxxxx Xxxxxx
Title:
------------------------
