BUSINESS CONSULTING AGREEMENT (`this Agreement")
dated as of December 1, 1999, is made by and
between xXxxxXxXxxxxx.xxx, Inc., a corporation
organized under the laws of Nevada, whose
principal offices are located at 000 Xxxx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Company"), and
Xxxxxx Xxxxxxxx International Business Corp, a
corporation organized under the laws of New York,
whose principal offices are located at 000 xxxx
Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000
("Consultant")
WHEREAS, Company desires to engage the services
of Consultant to provide certain assistance to
the Company in achieving the goals and purpose
for which it has been organized, particularly in
connection with the Company's purpose of
establishing and developing a combined
Internet-based Shopping Mall and Internet-based
Business to Business/Business to Consumer
Clearing House; and
WHEREAS, Consultant desires to provide the
aforesaid services and to generally assist
Company's management in achieving Company's goals
and purposes;
NOW, THEREFORE, in consideration of the premises
and mutual promises hereunder, the parties
hereby agree as follows:
1- CONSULTATION SERVICES.
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Company hereby employs Consultant to provide certain services to
and/or on behalf of the Company, which services shall include, but not be
limited to, the introduction to Company of certain of Consultant's clients and,
where possible, the establishment of strategic alliances between such clients
and Company; assistance in the procurement of qualified personnel; and the
provision of other, vital managerial assistance to Company's officers and
directors.
2- TERM OF AGREEMENT
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The respective duties and obligations of the contracting parties
shall be for a period of one year, commencing on December 1, 1999, and may be
terminated by either party's giving thirty (30) days written notice to the other
party at the addresses stated above or at an address chosen subsequent to the
execution of this Agreement and duly communicated to the party giving notice by
certified mail
3- CONSULTATIONS
------------------------
Consultant shall be available to consult with the Board of
Directors of Company, its officers and its heads of the administrative staff, at
reasonable times, concerning matters pertaining to any areas of concern in the
business affairs of Company as related to Consultant's aforesaid services.
4- PAYMENT TO CONSULTANT; REPORTS.
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(a) Consultant will be paid at the rate of $400.00 per hour for
work performed in accordance with the Agreement. Consultant shall submit monthly
statements to Company, setting forth the hours spent on Company matters and the
services delivered during such hours.
(b) Additionally, Consultant shall submit periodic reports
(i.e., quarterly or semi-annual, at the discretion of the Board), setting forth
the actual accomplishments and palpable contributions Consultant has made during
such period in advancing the purposes, programs and projects of the Company.
5- INDEPENDENT CONTRACTOR
-------------------------
Both Company and Consultant agree that Consultant will act as an
independent contractor in the performance of its duties under this Contract.
Accordingly, Consultant shall be responsible for payment of all taxes including
federal, state and local taxes arising out of Consultant's activities in
accordance with this contract, including, by way of illustration but not
limitation, Federal and state income tax, Social Security Taxes, Unemployment
Insurance Taxes, and any other taxes or business license fee as may be required.
Each of the parties agrees to file its own tax, regulatory and payroll reports
with respect to its respective employees and operations, saving and indemnifying
the other party hereto of and from any liability of any nature whatsoever by
virtue thereof.
6- COVENANTS OF CONSULTANT
Consultant acknowledges that (a) the principal business of
Company and its affiliates is the development and operation of an Internet
shopping mall as well as of various marketing techniques some of which may be
unique to Company (such aforesaid developments and operation being,
collectively, the "Present Business"); (b) Company and its affiliates constitute
one of a limited number of persons who have developed the Present Business; the
principal market of the Present Business is via the Internet and, as a result
thereof, is a global market without clearly delimited geographical boundaries;
(c) Consultant's work for Company has given and will continue to give him access
to the confidential affairs and proprietary information of Company and its
affiliates not readily available to the public; and (d) the agreements and
covenants of Consultant contained in this Section 6 are essential to the
business and good will of Company. Accordingly, Consultant covenants and agrees
as follows:
A. CONFIDENTIALITY
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(1) Consultant shall maintain in strictest confidence, and shall
not use for his benefit or the benefit of others, except in connection with the
business and affairs of Company and its affiliates, all confidential matters
relating to the Present Business and to Company and its affiliates learned by
Consultant heretofore or hereafter, directly or indirectly, from Company and its
affiliates, including any information concerning the business, affairs,
technical developments, strategic plans, customers, clients, sources of supply
and customer lists of Company and its affiliates (the "Confidential Company
Information") and shall not disclose them to anyone, except with Company's
express prior written authorization and except for Confidential Company
Information which (a) is at the time of receipt of thereafter becomes publicly
know, through no wrongful act of Consultant or (b) is received from a third
party not under an obligation to keep such information confidential and without
breach of this Agreement the "Excluded Information"). These rights of Company
are in addition to and without limitation to those rights and remedies available
under common law for protection of the types of such confidential information
which constitutes "trade secrets" as construed under controlling law. These
obligations of secrecy shall survive the Restricted Period (as defined
hereunder).
(2) Prior to any use by Consultant of any Excluded Information,
Consultant shall notify Company of such intention and delay its use, disclosure
or the making public of such information for a thirty (30) day period after such
notice.
(3) All memoranda, notes, lists, records and other documents
(and all copies thereof) constituting Confidential Company Information made or
compiled by Consultant or made available to Consultant concerning Company's
Business or Company or any of its affiliates shall be Company's property, shall
be kept confidential in accordance with the provisions of this Section 6 and
shall be delivered to Company at any time on request.
(4) If any provision of this Section 6 shall be held to be
invalid or unenforceable because of its scope or duration, it shall be deemed to
be narrowed or shortened to the extent necessary to render it valid and
enforceable under the laws of the jurisdiction in which enforcement is sought.
B. COVENANT NOT TO COMPETE. Consultant hereby agrees that the
following provisions shall apply:
(1) During the term of this Agreement, and for a period of
twenty-four (24) months following the date of any termination thereof (the
"Restricted Period"), Consultant shall not, without Company's prior written
consent, directly or indirectly, knowingly solicit or encourage to leave the
employment of Company and its affiliates, any employee of Company and its
affiliates or hire any employee who has left the employment of Company or any of
its affiliates within the later of (i) twelve month's of the termination of such
employee's employment with Company or any of its affiliates or (ii) the end of
any Restricted Period provided for in such employee's employment agreement with
Company.
(2) During the Restricted Period, Consultant shall no
interfere with, or disrupt or attempt to disrupt, Company's business
relationships with its Clients, employees or independent contractors, or solicit
for the benefit of Consultant or others any of the employees or clients or
associates of Company, unless Consultant shall have first obtained Company's
written consent.
(3) If any provision of this Section 6 shall be held to be
invalid or unenforceable because of its scope or duration, it shall be deemed to
be narrowed or shortened to the extent necessary to render it valid and
enforceable under the laws of the jurisdiction in which enforcement is sought.
(4) Consultant hereby agrees to take all reasonable steps
to insure that it complies with the terms of this Section 6. In addition,
Consultant hereby agrees to indemnify and hold Company harmless from and against
any and all claims, losses, liabilities, costs and expenses, including
reasonable attorney's fees, arising out or any action by Consultant in
contravention of this Agreement.
(5) Notwithstanding anything to the contrary herein
provided, the provisions of this Section 6 (the "Restrictive Covenants") shall
survive any termination or cancellation of this Agreement
SECTION 1. REMEDIES FOR BREACH.
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With respect to any breach of the foregoing restrictive
covenants, the following provisions shall apply:
A. Consultant agrees that Company's remedy at law for
breach or threatened breach of the provisions of Section 6 hereof would be
inadequate, and that Company shall be entitled to an injunction against
Consultant's breach of said provisions, regardless of and in addition to any
other remedies available to Company, at law or in equity.
B. In the event that a proceeding is brought in equity to
enforce such provisions, Consultant shall no urge as a defense that there is an
adequate remedy at law, and Company shall not be prevented from seeking any
other remedies which may be available.
C. Included, without limitation, in order remedies that
shall be available to Company shall be the right of Company to require
Consultant to account for any pay over to Company all compensation, profit,
monies, accruals, increments or other benefits (collectively, "Benefits")
derived or received by him primarily as the result of any transactions
constituting a breach of the Restrictive Covenants, and Consultant shall account
for and pay over such Benefits to Company. Company may set off any amounts due
to the Company under this Section 7C against any amounts owed to Consultant.
7 - EMPLOYMENT OF OTHERS
------------------------
Company may from time to time request that Consultant
arrange for the services of others. All cost to Consultant for those services
shall be paid by Company but in no event shall Consultant employ others without
the prior authorization of Company.
8-ARBITATION
------------
Except for any equitable action arising from the alleged
breach of the restrictive covenants contained in this Agreement )and unless
another dispute resolution forum is agreed upon by the parties), and controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration in accordance of the rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) shall be entered in any court having jurisdiction thereof. For
that purpose, the parties hereof consent to the jurisdiction and venue of an
appropriate court or other hearing room located in Nassau County, in the State
of New York. In the event that litigation or arbitration results from or arises
4
out of this Agreement or the performance thereof, the parties agree. In the
event that any litigation or other dispute resolution actions results from or
arises out of this Agreement or the performance thereof, the parties agree that
the losing party shall reimburse the prevailing party's reasonable attorney's
fees, court costs and all other expenses, in addition to any other to which the
prevailing party may be entitled. In such event, no action shall be entertained
by said court or any court or any court of competent jurisdiction if filed more
than one year subsequent to the date the causes(s) if action actually accrued
regardless of whether damages were otherwise as of said time calculable. This
arbitration provision shall be deemed to be self-executing, and in the event
that either party fails to appear at any properly noticed arbitration
proceeding, an award may be entered against such party notwithstanding said
failure to appear.
9- CHOICE OF LAW.
-----------------
The construction, interpretation and performance of this
Agreement shall be governed by the substantive law of the State of New York.
IN WITNESSES WHEREOF, the parties to hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXXXXXXX.XXX, INC. XXXXXX XXXXXXXX
INTERNATIONAL
BUSINESS CORP.,
By:/S/ XXXXX XXXXXXXX By:/S/ XXXXXXX KNIGJHT
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(Signature) (Signature)
YOSUEF NEISSANI XXXXXXX XXXXXX
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(Print Name) (Print Name)
CFO CEO
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(Title) (Title)
