Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into this 1st day of
November, 2000, by and between EREX, INC., a Nevada corporation (the "Company"),
and Xxxx X. Xxxxxx ("Consultant").
1. Engagement of Consultant. The Company hereby engages
Consultant to assist the Company in management services.
2. Compensation. As total and complete compensation for his
services provided herein, the Company shall issue to
Consultant 76,786 shares ("Shares") of the Company's
restricted common stock ("Stock"), par value $.001 per share.
3. Expenses. Company shall assume and shall be responsible for
all expenses incurred by Consultant and 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.
4. 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.
5. 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.
6. 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.
7. Miscellaneous Provisions.
7.1 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.
7.2 Modification. This Agreement may be modified only upon
the execution of a written agreement signed by both of the
parties.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7.7 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"
EREX, INC.
By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, Chairman
"CONSULTANT"
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
