Exhibit 4.1
CONSULTING SERVICES AGREEMENT
WITH X. X. XXXXX
This consulting services agreement ("Consulting Agreement") is made
as of this 2nd day of December, 2002, by and between X. X. Xxxxx, 0000 X.
Xxxxxxxxx, Xxxxx 0, Xxx Xxxxx, XX 00000, (referred to herein as the
"Consultant") and ModernGroove Entertainment, 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxx
0000, Xxxxxxxxxx, XX 00000; (referred to herein as the "Company"), and with
X. X. Xxxxx and Company collectively sometimes herein referred to as the
"Parties". The Parties hereto, for ten (10) dollars and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, hereby agree as follows:
WHEREAS, the Company is a fully reporting company whose securities
are traded on the Over-the-Counter Bulletin Board under the ticker symbol
"MODG"; and
WHEREAS, and the Consultant is a principal of a registered filing
agent company and is in the business of consulting with public companies
regarding public filings with the Securities and Exchange Commission ("SEC")
and assisting companies in the organization and preparation of due diligence
material relating to drafting of SEC filings for Company review; and
WHEREAS, the Company wishes to retain X. X. Xxxxx as a non-exclusive
corporate consultant; and
IT IS, THEREFORE agreed that:
1. Services. The Company shall retain X. X. Xxxxx to provide general
corporate drafting document services which may include, but not be limited
to: assistance in the preparation, organization and drafting of corporate
materials, and assistance with general XXXXX filings in accordance with the
Rules and Regulations of the Securities and Exchange Commission. The filings
to be worked on by the Consultant include, the drafting of the Company's
Annual Report for 2002 pursuant to Form 10K-SB, an Amended Current Report on
Form 8K, a Form S-8, and all other required reports to keep the Company's
filings current with the SEC through the completion of the Form 10K-SB. The
Consultant shall agree to make himself available for the foregoing purposes
and devote such business time and attention thereto as it shall determine
is required.
The Company understands that any and all suggestions, opinions or
advice given to the Company by the Consultant are advisory only and the
ultimate responsibility, liability and decision regarding any action(s)
taken or filings made lies solely with the Company and not with the
Consultant.
2. Term. The term of this Consulting Agreement shall be from the
date hereof until the completion of the work outlined in Item 1 above.
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3. Consideration. As consideration for the Services provided by Consultant,
the Company shall pay to Consultant the following fees:
(a) Fees. The Company shall pay to Consultant a fee of fifty thousand
dollars ($50,000.00) or issue two million (2,000,000.00) free trading common
stock, par value $0.001 per share, registered with the U.S. Securities and
Exchange Commission on Form S-8 in lieu of cash payment.
(b) The Shares to be issued shall be fully paid non-assessable registered
shares.
4. Independent Contractor. Consultant's relationship with the Company will be
that of an independent contractor and not an employee. Consultant will not be
eligible for any employee benefits, nor will the Company make deductions from
consideration paid to Consultant for taxes, all of which will be Consultant's
responsibility. Consultant will have no authority to enter into contracts
that bind Company or create obligations on the part of the Company without
the prior written authorization of the Company.
5. Company's Representations. Warranties and Covenants. As of the Effective
Date, the Company hereby represents, warrants and covenants to Consultant as
follows:
(a) The Company is a duly organized corporation validly existing under the
laws of the State of Nevada and has full power and authority to perform its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Company has been
duly authorized by all requisite corporate actions and proceedings, and this
Agreement constitutes the legal, valid and binding obligation of the Company.
Neither the execution and delivery of this Agreement by the Company nor the
consummation of the transactions contemplated hereby do or would after the
giving of notice or the lapse of time or both, (i) conflict with, result in
a breach of, constitute a default under, or violate the Articles of
Incorporation or the Bylaws of the Company; or (ii) conflict with, result in
a breach of, constitute a default under, or violate any federal, state, or
local law, statute, rule, regulation, injunction, judgment, order, decree,
ruling, charge or other restriction of any government, governmental agency
or court, except for conflicts, breaches, defaults or violations which
individually or in the aggregate would not have a material adverse effect;
or (iii) requires any further consent from any person or entity which has
not already been received, including without limitation any shareholder,
Board of Director, or lender approvals.
(c) The Shares of Common Stock to be issued to Consultant shall be duly
authorized and validly issued, fully paid and unassessable, free of liens,
encumbrances and restrictions on transfer, and shall be issued in accordance
with the registration or qualification provisions of the Securities Act of
1933, as amended, and any relevant state securities laws or pursuant to
valid exemptions therefrom.
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(d) The Company's Board of Directors has authorized the issuance of the
Shares set forth in Section 2 above for consideration consisting of this
Agreement and the Services to be provided hereunder. The Company's Board of
Directors has determined that the consideration received for the Shares,
consisting of this Agreement and the Services to be provided hereunder, is
adequate. In rendering its Services, Consultant will be using and relying on
the information supplied to it by the Company without independent verification
thereof or independent appraisal of any of the Company's business. The Company
hereby represents that all information made available to Consultant by the
Company will be complete and correct in all material respects and will not
contain any untrue statement of material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of
the circumstances under which such statements are made.
6. The Company agrees to provide Xx. X. X. Xxxxx with any information and
documents as may be requested by Consultant in connection with the services to
be performed for Company in a timely manner. Failure to provide the Consultant
with requested information on a timely manner, will negate any liability for
the Consultant to complete his work. The Company shall be solely responsible
for the accuracy of the information and representations contained in any
documents to be prepared by Consultant on behalf of Company.
7. The Company's Indemnification Obligation. The Company agrees that it will
indemnify and hold harmless Consultant, its officers, directors, employees,
agents and controlling persons from and against any and all losses, claims,
damages, liabilities and expenses, joint or several (including all reasonable
fees of counsel), caused by or arising out of (a) the Company's breach of any
covenant or representation hereunder, or (b) Consultant acting for the Company
pursuant to this Agreement, including, without limitation, (i) actions taken
or admitted to be taken by the Company or any persons acting together or in
concert with the Company (including any untrue statements made or admitted to
be made) or (ii) actions taken or admitted to be taken by any of the
indemnified persons set forth above with the consent of or in conformity with
actions taken or admitted to be taken by the Company or any persons acting
together or in concert with the Company; provided, however, that the Company
will not be liable under this Section to the extent that any loss, claim,
damages, liability or expense is found to have resulted from Consultant's
gross negligence or will full misconduct.
8. Miscellaneous.
(a) Amendments and Waivers. No term of this Agreement may be amended or
waived except with the written consent of the parties.
(b) Entire Agreement. This Agreement, including the Exhibits hereto
constitutes the entire agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof
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(c) Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be (i) delivered personally, (ii) sent by certified or
registered mail, postage prepaid, return receipt requested, (iii) delivered
by a nationally-recognized delivery service (such as Federal Express or UPS),
or (iv) faxed, addressed to the party to be notified at such party's address
or facsimile number as set forth below or as subsequently modified by written
notice. Notices shall be deemed communicated upon receipt if personally
delivered, delivered by a nationally-recognized delivery service or faxed
(with a written confirmation of facsimile transmission), or five (5) days
after posting if sent by certified mail.
(d) Choice of Law. The validity, interpretation, construction and performance
of this Agreement shall governed by the laws of Nevada, without giving effect
to the principles of conflict of laws.
(e) Attorney's Fees. If any action at law or in equity is commenced by any
party to enforce or interpret the terms of this Agreement, the party finally
prevailing in such proceeding or action shall be entitled to recover from the
unsuccessful party reasonable attorney's fees, costs and necessary
disbursements in addition to any relief to which it may be entitled.
(f) Severability. If one or more provisions of this Agreement are held to be
unenforceable under the applicable law, the parties agree to renegotiate such
provision such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision,
then (i) such provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
(g) Counterparts. This agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above mentioned.
December 2, 2002
MODERNGROOVE ENTERTAINMENT, INC.
By: /s/ Xxxx Xxxx
---------------------------
Xxxx Xxxx, CEO
AGREED AND ACCEPTED
By: /s/ X. X. Xxxxx
--------------------
X. X. Xxxxx
0000 X. Xxxxxxxxx, Xxxxx 0
Xxx Xxxxx, XX 00000
2,000,000 Shares. Number of Shares to be issued
to X. X. Xxxxx pursuant to this agreement.
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