Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into this 10h day of May
2001, by and between EREX, INC., a Nevada corporation (the "Company"), and
Xxxxxxx X. Xxxxxx ("Consultant").
1. Engagement of Consultant. The Company hereby engages Consultant to
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assist the Company in legal services.
2. Compensation. As total and complete compensation for his services
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provided herein, the Company shall issue to Consultant 85,714 shares ("Shares")
of the Company's restricted common stock ("Stock"), par value $.001 per share
valued at the closing bid price of $.175 per share.
3. Expenses. Company shall assume and shall be responsible for all expenses
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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
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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.
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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
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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.
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7.1 Entire Agreement; Binding Effect. This Agreement constitutes the entire
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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
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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
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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
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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
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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
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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
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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/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
"CONSULTANT"
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
