EXHIBIT 4.2
CONSULTING AND SERVICES AGREEMENT
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THIS AGREEMENT is dated February 5, 2003, by and between Xxxxxx
Xxxxxxxx of 000 Xxxxxxxxx Xxx, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Consultant"), and
Torbay Holdings, Inc., a Delaware corporation, having places of business at 0
Xxxxxx Xxxxx, Xxxxx 0X, Xxxxxxxxx, XX, 00000 ("Company").
WITNESSETH:
Consultant is engaged in the business of, among other things, providing
consulting and business advisory services, and the Company seeks these services
for the Company; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Services. Consultant shall, during the term of this Agreement,
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provide the following services to the Company:
a) Consultant shall analyze and provide advice as to both short and
long-term strategic business plans, business development, mergers and
acquisitions; as well as make recommendations for strategic partners.
b) Consultant shall provide all the consulting services described herein
directly to management of the Company. While the Consultant is authorized to
speak to and consult with others, the Consultant does not have any right or
power to bind the Company to any matter whatsoever or to make any representation
pertaining to the Company whatsoever. Further, the Consultant is not authorized
or empowered to commit the Company to any recommendations or course of action,
or any agreement, promise, or representation; and
c) Consultant shall provide such other general consulting services as may
be reasonably requested by the Company, from time to time, during the term;
subject to mutual understanding and written agreement between the Company and
Consultant.
d) Consultant shall be available, including by receiving telephone calls to
the Consultant's business, receiving calls while traveling at hotels, and
otherwise. Consultants shall also be available to review and receive information
concerning the Company 8 hours a day, including while at home and while
traveling, provided that the parties agree that reasonable efforts will be made
to provide such information by fax or during normal business hours. (Consultant
agrees that holidays will not be excluded from the foregoing, so that Consultant
shall be available to consult even on holidays as are necessary in exigent
circumstances.)
e) Consultant shall be fully responsible for complying with all applicable
state and federal laws and regulations concerning the activities of the
Consultant, including the business and operations of the Consultant.
2. Consulting Compensation. In consideration for the services to be
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provided by the Consultant pursuant to Section 1 above, the Consultant shall be
compensated as follows:
a) Consultant shall be issued up to 2,000,000 shares of restricted common
stock registered as S8 free trading stock the effective date of issue of which
will be deemed as the commencement date of this agreement. 1,251,000 shares of
S8 registered stock will be issued upon commencement up on the effective date in
lieu of payment for the Initial Period. Further issuance from the balance
remaining will be for payment, as agreed, for subsequent periods. Shares shall
be issued on February 5, 2003 or as soon after as practical and within 2 days
thereof.
b) Consultant shall be reimbursed for any pre-approved travel and related
expenses when providing services to the Company; subject to a written estimate
or statement which is provided by the Consultant to the Company and approved by
its President.
3. Indemnification. Both the Company and Consultant shall indemnify and
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hold harmless one another as to and against all losses, claims, damages,
liabilities, and expenses (including reasonable attorney's fees) caused by the
actions of the other and for which any subsequent action is brought by any third
party. Both parties shall indemnify and hold harmless one another as to all
losses, claims, damages, liabilities, and expenses caused by any prior acts of
the other. The Company shall also indemnify and hold harmless the Consultant as
to and against all losses, claims, damages, liabilities, and expenses caused by
any untrue or alleged fact required to be stated therein or necessary to make
the statements therein not misleading as to the public filings of the Company;
provided, however, that the Company will not be liable in any such case to the
extent that such item arises out of or is based upon an untrue statement or
alleged untrue statement, prospectus or preliminary prospectus or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in reliance
upon, and in conformity with, information furnished to the Company by
Consultant, and/or in any case the Consultant is aware of the problem.
4. Term. The term of this Agreement shall be for an initial term (the "Initial
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Term") of Two (2) months commencing on the date first set forth above. This
Agreement may be extended beyond the Initial Term and the rate of compensation
may be adjusted as long as it is agreeable to both parties.
5. Non-Exclusive. Consultant shall devote such of its time and effort, as
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Consultant deems necessary or desirable to the discharge of its duties
hereunder. The Company acknowledges that Consultant is engaged in other business
activities and that it will continue such activities during the term of this
Agreement. Consultant shall not be restricted from engaging in other business
activities during the term of this Agreement.
6. Confidentiality. Consultant shall, and shall cause officers, directors,
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employees and agents of Consultant to, hold confidential and not publish,
disclose or make accessible to any other person not bound by an obligation of
confidentially, all confidential information, if any, which Consultant or any of
its officers, directors, employees, or agents may, from time-to-time, possess
relating to financial condition, results of operation, business, property,
assets or liabilities of the Company; provided, however, the restrictions of
this sentence shall not apply to information that (I) is publicly available,
(II) already is known to Consultant at the time of disclosure, or (III) is
received from a third party not under any obligation of confidentiality to the
Company.
7. Benefit, Burden, and Assignment. The provisions herein shall ensure to the
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benefit of, and be binding upon, the parties hereto and their permitted assigns
and successors. This Agreement may be assigned without the prior written consent
of all parties hereto.
8. Severability. If any provision of this Agreement shall be deemed by any
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court of competent jurisdiction invalid or unenforceable to any extent, the
remainder of this Agreement, or the application of such provision in any other
circumstance shall not be affected thereby and each provision shall otherwise be
valid and shall be enforced to the fullest extent permitted by applicable law.
9. Governing Law. The laws of the State of Florida, U.S.A. shall govern this
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Agreement, and the venue for any action, claim or proceeding in connection with
this Agreement shall be a court of competent jurisdiction in Dade County,
Florida.
10. Entire Agreement. This Agreement sets forth all of the promises,
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agreements, conditions, understandings, warranties and representations among the
parties with respect to the subject matter hereof. This Agreement is, and is
intended by the parties to be, an integration of any and all prior agreements
and understandings, oral, written, express or implied with respect to the
subject matter hereof.
11. Captions. Captions in this Agreement are for convenience of reference
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only and shall not be used in the interpretation.
12. Independent Legal Counsel. The parties agree and acknowledge that they
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have been represented by independent legal counsel, or have had the opportunity
to obtain independent legal counsel, have been advised that it is in their best
interests to do so, and by execution of this Agreement have waived the right.
13. Amendments and Modification. No amendment or modification to this
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Agreement shall be valid unless in writing and signed by the parties hereto.
14. Ambiguities. The parties hereby acknowledge that the normal rule of
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construction to the effect that ambiguities in an agreement are constructed
against the drafting party shall not apply to this Agreement.
15. Cooperation. Each party hereby agrees to provide such reasonable
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cooperation and execute such reasonable documents as shall be reasonably
required or requested by the other party hereto to perform the Agreement.
16. Written Provisions. Hand-written provisions hereto initiated by the
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parties hereto shall control to the extent of any conflict with the typed
provisions herein.
17. Execution. This Agreement may be executed via facsimile and in
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE
DAY AND YEAR FIRST ABOVE WRITTEN.
Xxxxxx Xxxxxxxx Torbay Holdings, Inc. (DE)
______________________ ______________________
Consultant President and CEO
