Exhibit 4.1
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into between XXXXXX X.
XXXXX (the "Consultant") and the Client identified on the signature page to this
Agreement (the "Client").
Recitals
A. The Consultant is in the business of providing management consulting
services, business advisory services, shareholder information services
and public relations services.
B. The Client desires to retain the Consultant to render to the Client
such services as may be agreed to by the parties from time to time, and
the Consultant desires to render such services to the Client as set
forth hereunder.
Agreement
Therefore, in consideration of the mutual promises and covenants set forth in
this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Consulting Services. The Client hereby retains the Consultant as an
independent contractor, and the Consultant hereby accepts and agrees to
such retention. It is acknowledged and agreed by the Client that the
Consultant carries neither professional licenses nor memberships in any
self-regulatory organizations. It is further acknowledged and agreed by
the Client that the Consultant is not rendering legal advice or
performing accounting services and is not acting and shall not act as
an investment advisor or broker/dealer within the meaning of any
applicable state or federal securities laws. No portion of the services
rendered pursuant to this Agreement shall be provided in connection
with the offer or sale of securities in a capital-raising transaction
or for the purpose of directly or indirectly promoting or maintaining a
market for the Client's securities. The services of the Consultant
shall not be exclusive, nor shall the Consultant be required to render
any specific number of hours or assign specific personnel to the Client
or its projects.
2. Time, Place and Manner of Performance. The Consultant shall be
available to the officers and directors of the Client at such
reasonable and convenient times and places as may be mutually agreed
upon. Except as otherwise provided in this Agreement, the time, place
and manner of performance of the services hereunder, including the
amount of time to be allocated by the Consultant to any specific
service, shall be determined in the sole discretion of the Consultant.
3. Independent Contractor; Performance by Consultant; Compliance with
Laws.
(a) The Consultant agrees to perform its consulting duties hereto
as an independent contractor. Nothing contained herein shall
be considered to create an employer-employee relationship
between the parties in this Agreement. The Client shall not
make social security, workers' compensation or unemployment
insurance payments on behalf of the Consultant.
(b) The parties hereto acknowledge and agree that the Consultant
cannot guarantee the results or effectiveness of any of the
services rendered or to be rendered by the Consultant. Rather,
Consultant shall conduct its operations and provide its
services in a professional manner and in accordance with good
industry practice. The Consultant will use its reasonable
business efforts in providing services to the Client.
(c) The Consultant will comply with all requirements that any
applicable federal or state law (including without limitation
the Securities Act of 1933, as amended (the "Securities Act"),
and the Securities Exchange Act of 1934, as amended) may
impose on the Consultant with respect to its performance of
services under this Agreement.
4. Term of Agreement. The term of this Agreement shall be twelve (12)
months, subject to prior termination as hereinafter provided.
5. Compensation. In consideration of the services rendered by the
Consultant pursuant to this Agreement, upon the signing of this
Agreement the Client shall deliver to the Consultant Fifty Thousand
(50,000) shares of the Client's common stock, par value $.001 (the
"Client Stock"). The shares of Client Stock delivered pursuant to this
Agreement shall be registered under the Securities Act for resale by
the Consultant pursuant to an effective Registration Statement on Form
S-8 filed by the Client with the U.S. Securities and Exchange
Commission.
6. Termination.
(a) Either the Consultant or the Client may terminate this
Agreement at the end of any month during the term of this
Agreement on thirty (30) days prior written notice. This
Agreement shall automatically terminate upon the dissolution,
bankruptcy or insolvency of the Client or the Consultant. The
Consultant and the Client shall have the right and the
discretion to terminate this Agreement should the other party,
in performing its duties hereunder, violate any law,
ordinance, permit or regulation of any government entity or
self regulatory organization, accept for violations that
either singularly or in the aggregate do not have or will not
have a materially adverse effect on the party desiring
termination. In the event of any termination hereunder, all
consideration paid to the Consultant through date of
termination shall be fully earned and non-refundable, and the
parties shall have no further duties or responsibilities to
each other, except that the Client shall be responsible to
make any and all payments, if any, due to the Consultant
through the date of termination, and the parties shall
continue to be bound by the confidentiality provisions
contained in Section 8 of this Agreement and the last sentence
of Section 5 of this Agreement and the 36 month fee "tail"
provisions of Section 5(b) of this Agreement.
(b) Notwithstanding any other provision of this Agreement, in the
event of any breach by the Consultant of the provisions of
either (i) the fourth sentence of Section 1 or (ii) any part
of Section 3(c), then: (A) the Client shall have the right to
terminate this Agreement immediately, and after any such
termination, shall have no further obligation to the
Consultant hereunder; and (B) the Client shall have the right
to require the Consultant to surrender all shares of Client
Stock issued to the Consultant pursuant to this Agreement.
7. Work Product. It is agreed that all information and materials produced
for the Client shall be the property of the Consultant, free and clear
of all claims thereto by the Client, and the Client has no claim of
authorship therein or ownership rights thereto.
8. Confidentiality. The Client and the Consultant each agree to provide
reasonable security measures to keep information belonging to the other
party confidential where release of the same would be determined to
such party's business interests ("Confidential Information"). Each
party agrees that Confidential Information shall be subject to this
Agreement if provided to the other party and marked "Confidential" in a
conspicuous manner. Consultant and Client shall each require their
employees, agents, affiliates, sub-contractors, other licensees, and
others who have access to Confidential Information through Consultant
or Client, as the case may be, to enter into appropriate non-disclosure
agreements, requiring the level and degree of confidentiality
contemplated by this Agreement. Consultant and Client each agree that
it will not, either during the term or this Agreement, or any time
thereafter, disclose, use or make known for it's own or another's
benefit, any confidential information acquired or used by it hereunder.
The term "Confidential Information" excludes information that: (a) is
made public by Consultant or Client in violation of this Agreement, (b)
becomes generally available to the public, other than as a result of
disclosure by Consultant or Client or another party in violation of any
obligation of confidentiality or (c) Client or Consultant obtains from
sources other than Client or Consultant.
9. Conflict of Interest. The Consultant shall be free to perform services
for other entities or persons. The Consultant will notify the Client of
its performance of consulting services for any other entity or person
that the Consultant reasonably believes could materially conflict with
its obligations to the Client under this Agreement.
10. Disclaimer of Responsibility for Acts of the Client; Limitations on
Liability.
(a) In no event shall the Consultant be authorized or required by
this Agreement to represent or make management decisions for
the Client. The Consultant shall, under no circumstances, be
made liable for any expense incurred or loss suffered by the
Client as a consequence of such decisions by the Client or any
affiliates or subsidiaries of the Client as a result of
services performed by the Consultant hereunder.
(b) CONSULTANT DISCLAIMS ANY AND ALL WARRANTIES RESPECTING THE
SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR OTHERWISE RELATING TO THE SERVICES TO BE PROVIDED UNDER
THIS AGREEMENT, HOWEVER CAUSED, EVEN IF CONSULTANT HAS BEEN
ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN
NO EVENT SHALL CONSULTANT'S LIABILITY FOR DAMAGES UNDER OR
RELATING TO THIS AGREEMENT, REGARDLESS OF HOW ARISING, EXCEED
THE AMOUNT OF CASH COMPENSATION PAID TO CONSULTANT HEREUNDER.
11. Indemnification. Each party agrees to indemnify and hold harmless the
other party as well as each of its officers, directors, employees,
agents and each person, if any, who controls that party, against any
and all liability, loss, costs, expenses or damages, including, but not
limited to, any and all expenses reasonably incurred in investigating,
preparing or defending against any litigation or arbitration, commenced
or threatened, directly resulting by reason of any act, neglect;
default or omission, or any untrue or allegedly untrue statement of a
material fact, or any misrepresentation of any material fact, or any
breach of any material warranty or covenant, by that party or any of
its agents, employees or other representatives, arising out of, or in
relation to, this Agreement. Notwithstanding the foregoing, in no event
shall the liability of Consultant exceed the amount of cash
compensation actually received by Consultant pursuant to this
Agreement.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by
fax registered or certified mail, or by Federal Express or other
nationally recognized overnight couriers to the principal office of
each party and addressed to its principal executive officer at the
address set forth on the signature page to this Agreement. Faxes should
be marked for the attention of the principal executive officer and set
to the fax number set forth on the signature page to this Agreement.
13. Waiver of Breach. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate to be
construed as a waiver of any subsequent breach by such party.
14. Assignment. Neither party may assign this Agreement without the written
consent of the other party.
15. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant to
the laws of the State of New York and that in any action, special
proceeding or other proceeding that may be brought arising out of, in
connection with, or by reason of this Agreement, the laws of the State
of New York, without regard to state or federal courts located in
Monroe County, New York, and consent to the jurisdiction and venue of
such courts, and further waive any objection that such courts are an
inconvenient forum.
16. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by
any competent court, this Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
17. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supercedes and replaces
all prior understandings, agreements and negotiations between the
parties.
18. Waiver and Modification. Any waiver, alternation, or modification of
any of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties hereto.
19. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original but all of which taken together, shall constitute
one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a
party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party.
Signatures
By signing below, the parties agree to the terms of this Agreement and further
certify that their respective signatories are duly authorized to execute this
Agreement.
August 28, 2002
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Date
XXXXXX X. XXXXX PROVECTUS CORPORATION
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Consultant Client
/s/ Xxxxxx X. Xxxxx Xxxxxxx Xxxxx, President
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Signature Name and Title
Address for Notices: /s/ Xxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxx, Xxxxxx, XX 00000 -------------------------------------
(000) 000-0000 Signature
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Telephone Number Address for Notices:
0000 Xxx Xxxxx Xxxxxxx, Xxxxxxxxx, XX
00000
(000) 000-0000
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Telephone Number
