CONSULTING SERVICES AGREEMENT
Exhibit 4.1
CONSULTING SERVICES AGREEMENT (this “Agreement”) is entered into as of February 25, 2004 by and between xxxxXxxx.xxx, Inc., a Nevada corporation (the “Company”), and Saratoga Capital Partners, Inc., a Washington corporation (the “Consultant”).
RECITALS
A. The Company desires to be assured of the association and services of Consultant and to avail itself of Consultant’s experience, skills, abilities, knowledge and background and is therefore willing to engage Consultant upon the terms and conditions set forth herein; and
B. Consultant agrees to be engaged and retained by the Company upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants, agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:
1. Consulting Services. The Consultant agrees to provide consulting services (the “Consulting Services”) to the Company during the term of this Agreement, upon such terms and to the extent the parties agree from time to time. The nature of Consulting Services to be provided may include:
(a) Review and advice concerning the technical design of existing and planned products or services;
(b) Sales assistance through the development of business models and sales strategy;
(c) Strategic consulting regarding high level product planning, market development, marketing and public relations planning;
(d) Intellectual property planning;
(e) Introductions to prospective customers for the Company’s products or services; and
(f) Participation and attendance at meetings with the Company’s Board of Directors, management, customers, and strategic partners, as requested by the Company.
2. Term. The term of this Agreement shall commence as of the date hereof and shall be effective a period of one (1) year (the “Term”). This agreement may be extended under the same terms by mutual agreement between Consultant and the Company.
3. Direction, Control and Coordination. Consultant shall perform the Consulting Services under the sole direction and with the approval of the Company’s Board of Directors or an officer of the Company to whom such direction is delegated by resolution of the Board of Directors.
4. Dedication of Resources. Consultant shall devote such time, attention and energy as is necessary to perform and discharge the duties and responsibilities under this Agreement in an efficient, trustworthy and professional manner.
5. Standard of Performance. Consultant shall use its best reasonable efforts to perform its consulting services as an advisor to the Company in an efficient, trustworthy and professional manner. Consultant shall perform its consulting services to the sole satisfaction of, and in conjunction and cooperation with, the Company.
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6. Compensation. The Company shall pay to Consultant a total of ten million (10,000,000) shares of common stock of the Company (the “Common Stock”), registered under the Securities Act of 1933, as amended, in exchange for the Consulting Services. The Company shall issue the Common Stock to the Consultant upon the execution of this Agreement by both parties to this Agreement and upon registration of the Common Stock pursuant to Section 7 hereof. The Company shall issue certificates representing the Common Stock only to the natural persons employed by, or otherwise acting on behalf of, the Consultant and who perform the Consulting Services.
7. Registration of the Common Stock. Commencing on the date hereof, the Company shall use its best efforts to promptly register the Common Stock pursuant to the Act, on Securities and Exchange Commission (“SEC”) Form S-8. Consultant hereby covenants that if he or she is or becomes a director, officer, holder of ten percent (10%) of the equity and/or voting securities of the Company, or is, or becomes an “affiliate” of the Company (for the purposes of this Agreement, “affiliate” shall have that definition ascribed to such term in SEC Rule 405), he or she will not offer to sell or resell the Common Stock registered on Form S-8, except pursuant to a reoffer prospectus in compliance with Form S-8 or other registration under the Act, or pursuant to an exemption under the Act and an opinion acceptable to the Company in its sole discretion. Consultant
understands and agrees that to the extent that the natural persons performing the Consulting Services become affiliates of the Company (i) the certificate or certificates evidencing the Common Stock and in the name of such affiliates shall bear appropriate legends indicating such transfer restrictions placed upon the Common Stock, (ii) the Company shall have no obligation to honor transfers of any of the Common Stock in violation of such transfer restrictions, and (iii) the Company shall be entitled to instruct any transfer agent or agents for the securities of the Company to refuse to honor such transfers.
8. Disclosure. Consultant has reviewed information provided by the Company in connection with the decision to be remunerated by the Common Stock, including Consultant’s publicly-available filings with the SEC. The Company has provided Consultant with all the information that Consultant has requested in connection with the decision to be remunerated by the Common Stock. Consultant further represents that Consultant has had an opportunity to ask questions and receive answers from the Company regarding the business, properties, prospects and financial condition of the Company. All such questions have been answered to the full satisfaction of Consultant.
9. Additional Covenants. Consultant covenants that it shall not engage in any activities which are in connection with the offer or sale of securities of the Company in a capital-raising transaction or directly or indirectly promote or maintain a market for the Company’s securities.
10. Confidential Information. Consultant recognizes and acknowledges that by reason of performance of Consultant’s services and duties to the Company (both during the Term and before or after it) Consultant has had and will continue to have access to confidential information of the Company and its affiliates, including, without limitation, information and knowledge pertaining to products and services offered, inventions, innovations, designs, ideas, plans, trade secrets, proprietary information, advertising, distribution and sales methods and systems, and relationships between the Company and its affiliates and customers, clients, suppliers and others who have business dealings with the Company and its affiliates (“Confidential Information”). Consultant acknowledges that such Confidential Information is a valuable and unique asset and covenants that it will no
t, either during or for three (3) years after the term of this Agreement, disclose any such Confidential Information to any person for any reason whatsoever or use such Confidential Information (except as its duties hereunder may require) without the prior written authorization of the Company, unless such information is in the public domain through no fault of the Consultant or except as may be required by law. Upon the Company’s request, the Consultant will return all tangible materials containing Confidential Information to the Company.
11. Relationship. This agreement does not create, and shall not be construed to create, any joint venture or partnership between the parties, and may not be construed as an employment agreement. No officer, employee, agent, servant, or independent contractor of Consultant nor its affiliates shall at any time be deemed to be an employee, agent, servant, or broker of the Company for any purpose whatsoever solely as a result of this Agreement, and Consultant shall have no right or authority to assume or create any obligation or liability, express or implied, on the Company’s behalf, or to bind the Company in any manner or thing whatsoever.
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12. Notices. Any notice required or desired to be given under this Agreement shall be in writing and shall be deemed given when personally delivered, sent by an overnight courier service, or sent by certified or registered mail to the following addresses, or such other address as to which one party may have notified the other in such manner:
| If to the Company: | XxxxXxxx.xxx, Inc. |
| 0000 X. Xxxxx Xxxxxx Xxxxxxx | |
| Xxxxxxxxx, Xxxxxx 00000 |
| If to the Consultant: | Saratoga Capital Partners, Inc. |
| 000 Xxxxxx Xxxxxx, Xxxxx 0000 | |
| Xxxxxxx, Xxxxxxxxxx 00000 |
13. Applicable Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of Washington, without giving effect to principles of conflicts of law.
14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provisions of this Agreement.
15. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach by such party. No waiver shall be valid unless in writing and signed by an authorized officer of the Company or Consultant.
16. Assigns and Assignment. This Agreement shall extend to, inure to the benefit of and be binding upon the parties hereto and their respective permitted successors and assigns; provided, however, that this Agreement may not be assigned or transferred, in whole or in part, by the Consultant except with the prior written consent of the Company.
17. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.
18. Counterparts. This Agreement may be executed by facsimile and in counterparts each of which shall constitute an original document, and both of which together shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.
| The Company: | XXXXXXXX.XXX, INC. | |
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| By: | /s/ Xxxxxx Xxxxxx | |
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______________________________________ Name Xxxxxx Xxxxxx | ||
| Title: Attorney-in-fact | ||
| The Consultant: | SARATOGA CAPITAL PARTNERS, INC. | |
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| By: | /s/ Xxxx Xxxxxxx | |
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_______________________________________ Name: Xxxx Xxxxxxx | ||
| Title: Director | ||
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