Exhibit 10.4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into on January 4, 2000, by and between
REVENGE MARINE, INC., a Nevada corporation (the "Company") and XXXXXX XXXXXXXX
("Consultant").
The Company is in the business of developing certain travel services, the
marketing of which, among other things, requires product location in multiple
retail locations. Consultant has represented to the Company that he has
expertise and experience in locating suitable retail locations and obtaining the
placement of product materials at those locations.
Therefore, in consideration of the mutual promises, covenants and conditions set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Consulting Services. During the term of this Agreement, Consultant will
provide the Company with consulting services in connection with the fulfillment
of the Company's needs for product location in multiple retail locations. The
consulting services shall include assistance in the location of potential retail
locations; assisting as requested in negotiations for placement of the Company's
products in those locations; and general consulting services regarding the
marketing of the Company's products. Notwithstanding anything herein to the
contrary, Consultant shall not be required to perform any minimum number of
hours of services under this Agreement. Furthermore, the Company recognizes and
agrees that Consultant is engaged in several business activities independent of
the services described herein and that, as a result of such other activities,
the services requested hereunder may be provided on an "as available" basis.
2. Consulting Fee. The Company shall pay to Consultant or his designee the
following consulting fees for the above services:
(a) The Consultant shall be named to and shall serve on the Company's
Advisory Board.
(b) Upon execution of this Agreement by both parties, the Company will
issue to Consultant options to acquire 1,000,000 shares of common stock of the
Company at an exercise price of $.01 per share. One twelfth of the options will
become exercisable every three months from the date of this Agreement, such that
all options will be exercisable after three years from the date of this
Agreement. Thereafter, the options will be exercisable at any time and from time
to time upon written notification to the Company accompanied by payment in full
of the appropriate option price. Upon exercise of the options, the stock issued
to Consultant will be issued by the Company without registration and, as a
result, will be restricted stock under Rule 144, promulgated by the Securities
and Exchange
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Commission. If this Agreement is terminated by the Company prior to the
expiration of the initial three year term, all options will become immediately
exercisable.
(c) Upon execution of this Agreement by both parties, the Company will
cause to be granted to Consultant options to acquire 150,000 shares of
unrestricted common stock of the Company at an exercise price of $.01 per share,
exercisable at any time.
3. Securities Representations. Consultant hereby represents that:
(a) He is an Accredited Investor, as that term is defined in Regulation
D as issued by the Securities and Exchange Commission, he has reviewed a copy of
the Company's Annual Report on Form 10-K, has discussed with the Company's
management the business plans for the Company.
(b) He has had the opportunity to question the principals of the
Company as to all matters which he deems material and relevant to his decision
to purchase the Company's common stock and has had the opportunity to obtain any
and all additional information necessary to verify the accuracy of the
information received or any other supplemental information which he deems
relevant to make an informed investment decision.
(c) He understands the risks of an investment in the Company's common
stock and has consulted with an attorney or accountant to the extent he deemed
it necessary in reviewing his acquisition of the Company's common stock.
(d) He is aware that the issuance of the restricted shares of the
Company's common stock has not been registered under the Securities Act of 1933,
or any state securities laws, and that, therefore, he must continue to bear the
economic risks of ownership of those shares for an indefinite period of time,
because they cannot be sold unless the sale is so registered or an exemption
from registration is available.
(e) He is acquiring the Company's common stock for is own account, for
investment, and not with the intent of distributing the stock or as a nominee
for others.
4. Term. The initial term of this Agreement shall be three years from the
date hereof. The term of this Agreement may be extended for an additional three
year period at the option of the Company.
5. Certain Restrictive Covenants.
(a) Consultant recognizes and acknowledges that confidential
information may exist, from time to time, with respect to the business of the
Company. Accordingly, Consultant agrees that he will not disclose any
confidential information relating to the business of the Company to any
individual or entity during the term of this Agreement or thereafter except on a
confidential basis and in connection with the fulfillment of his duties
hereunder. The provisions of this paragraph shall not apply to information which
is or shall
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become generally known to the public or the trade (except by reason of
Consultant's breach of its obligations hereunder), information which is or shall
become available in trade or other publications (except by reason of
Consultant's breach of its obligations hereunder), and information which
Consultant is required to disclose by order of a court of competent jurisdiction
(but only to the extent specifically ordered by such court and, when reasonably
possible, if the Consultant shall give the Company prior notice of such intended
disclosure so that it has the opportunity to seek a protective order if it deems
appropriate).
(b) As used in this Agreement, "confidential information" shall mean
studies, plans, reports, surveys, analyses, notes, records, unpublished
memoranda or documents, and all other nonpublic information relating to the
Company's business activities, including, without limitation, all methods,
processes, techniques, equipment, research data, marketing and sales
information, personnel data, customer lists, employee lists, financial data,
plans and all other techniques, know-how and trade secrets which presently or in
the future are in the possession of the Company.
(c) All memoranda, notes, records, reports, plans, papers or other
documents made or compiled by or made available to Consultant in the course of
its duties hereunder are and shall be the sole and exclusive property of the
Company and shall be promptly delivered and returned to the Company by
Consultant immediately upon termination of this Agreement.
6. Injunction. The Consultant acknowledges that the services to be
rendered by it are of a special, unique and extraordinary character, and, in
connection with such services, it will have access to confidential information
vital to the Company's business. Accordingly, the Consultant consents and agrees
that if it violates any of the provisions of paragraph 5 hereof, the Company
would sustain irreparable harm and, therefore, in addition to any other remedies
which may be available to it, the Company shall be entitled to apply to any
court of competent jurisdiction for an injunction restraining Consultant from
committing or continuing any such violation of this Agreement. Nothing in this
Agreement shall be construed as prohibiting the Company from pursuing any other
remedy or remedies including, without limitation, recovery of damages.
7. Independent Contractor. Neither party is hereby constituted an
employee, agent or legal representative of the other party, except as expressly
set forth in this Agreement, and neither is granted any right or authority
hereunder to assume or create any obligation, expressed or implied, or to make
any representation, covenant, warranty or guaranty, except as expressly granted
or made in this Agreement. Nothing contained in this Agreement shall be
construed as to constitute Consultant or any of its officers, directors or
employees as employees, agents or legal representatives of the Company, it being
intended that the Consultant is an independent contractor of the Company.
8. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by binding arbitration
in Broward County, Florida, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbitrator may be entered in any court
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having jurisdiction thereof. The arbitration shall be conducted before and by a
single arbitrator selected by the parties. If the parties have not selected an
arbitrator within ten (10) days of written demand for arbitration, the
arbitrator shall be selected by the American Arbitration Association pursuant to
the then current rules of that Association. The expenses of arbitration shall be
divided equally between the parties. The duty to arbitrate shall survive the
cancellation or termination of this Agreement.
9. Miscellaneous Provisions.
(a) This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Florida.
(b) This Agreement will be binding upon and will operate solely for the
benefit of the parties to this Agreement. This Agreement may not be assigned by
any party without the prior written consent of all of the parties hereto.
(c) This Agreement contains the entire agreement of the parties as to
the matters set forth herein. This Agreement cannot be altered, amended,
supplemented or modified except by an instrument in writing signed by all of the
parties to this Agreement.
(d) The invalidity or unenforceability of any particular provision of
this Agreement will not affect the other provisions of this Agreement, and the
Agreement will be construed in all respects as if such invalid or unenforceable
provisions were omitted.
(e) If any party fails to perform its obligations under this Agreement,
the non- performing party shall be liable for all claims, liabilities, losses,
damages, costs and expenses, including, without limitation, reasonable
attorneys' fees (through all arbitration proceedings, trial proceedings or
appellate proceedings) that are incurred by any other party hereto in connection
with such party's enforcing the provisions of this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of
which will be deemed an original and all of which together shall constitute one
agreement.
(g) This Agreement may be executed by facsimile signature and any such
signature shall be of the same force and effect as an original signature.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
/s/ Xxxxxx Xxxxxxxx
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XXXXXX XXXXXXXX
REVENGE MARINE, INC.
By: /s/
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