Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made as of January 1,
1999 by and between USA Xxxxx.xxx, Inc., a Nevada corporation (the "Company")
and Xxxxx Xxxxxxxxx, (herein called the "Consultant").
WITNESSETH:
For and in consideration of the mutual promises and covenants herein
contained, the parties hereto mutually agree as follows:
SECTION 1. DEFINITIONS. For the purposes of this Agreement, the following terms
have the meanings specified or referred to in this Section 1.
"CONFIDENTIAL INFORMATION"-- any and all:
(a) trade secrets concerning the business and affairs of the Company,
including, but not limited to, information related to speech recognition
technology, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and all mask works), and any other information, however
documented.
(b) information concerning the business and affairs of the Company
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Company containing or based, in whole or in
part, on any information included in the foregoing.
"INVENTION"-- any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product
(whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed
by Consultant, either solely or in conjunction with others, during the term
of the Agreement, or
a period that includes a portion of the term of the Agreement, that relates in
any way to, or is useful in any manner in, the business then being conducted or
proposed to be conducted by the Company, and any such item created by
Consultant, either solely or in conjunction with others, following termination
of this Agreement, that is based upon or uses Confidential Information.
SECTION 2. CONSULTING AGREEMENT. The Company hereby retains the Consultant for
the term and upon the terms and conditions hereinafter set forth to perform
technical consulting services for the Company, and the Consultant hereby agrees
to perform such consulting services as required such as, but not limited to:
1. Research to develop technology for Internet "Points of
Presence" ("POP's") for deployment into residential and
other markets; and
2. Long-range strategic planning and research regarding the
addition of other services and products including:
Mobile server to provide value-added services and
products such as:
Long-distance calls over the Company's VIOP
network Global radio reception via Internet
Teleconferencing via residential POP
Text-to-speech e-mail retrieval
SECTION 3. TERM. The term of this Agreement shall continue for a minimum of
one year until December 31, 1999 and thereafter until either party hereto
terminates this Agreement by providing the other party with thirty (30) days'
written notice of its intent to terminate the Agreement. The provisions of
Section 5 of this Agreement shall survive the termination of this Agreement.
SECTION 4. INDEPENDENT CONTRACTOR STATUS. The parties expressly intend that
Consultant shall perform its duties hereunder as an independent contractor of
the Company and not as an employee. As an independent contractor, the Company
shall not be responsible for tax, employee benefit and other liabilities
relating to Consultant.
SECTION 5. CONFIDENTIAL INFORMATION; INVENTIONS. (a) the Consultant
acknowledges that (i) during the term of the Agreement, the Consultant will
be afforded access to Confidential Information; (ii) public disclosure of
such Confidential Information could have an adverse effect on the Company and
its business; (iii) because the Consultant possesses substantial technical
expertise and skill with respect to the Company's business, the Company
desires to obtain exclusive ownership of each Invention, and the Company will
be at a substantial competitive disadvantage if it fails to acquire exclusive
ownership of each Invention; and (iv) the provisions of this Section 5 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Company with exclusive ownership
of all Inventions.
(b) All Confidential Information which the Consultant creates or
otherwise develop or which comes into its possession during the term of the
Agreement shall be and remain the exclusive property of the Company.
(c) Unless authorized in writing by the Company, the Consultant will
maintain all Confidential Information in confidence and, except as necessary
in conjunction with its work for the Company, will not copy or make notes of,
divulge to anyone outside the Company or use any of the Confidential
Information for its own or another's benefit, either during or after the term
of the Agreement. The Consultant agrees that it will promptly disclose to the
Company all Confidential Information developed during the term of the
Agreement.
(d) Upon request of the Company and, in any event, upon termination
of this Agreement, any Confidential Information in the possession or under
the control of the Consultant will be promptly surrendered and delivered to
the Company.
(e) The Consultant agrees that any and all Inventions created,
developed or discovered by or for the Company, or acquired by the Company
from others, and that comes into the Consultant's knowledge or possession
during and in the course of the term of this Agreement, shall be held in
trust for the sole right and benefit of the Company and that the Consultant
shall not have any rights and shall not acquire any rights therein unless and
until the Company shall expressly and in writing waive the rights that it has
therein and thereto under the provisions of this sentence. The Consultant
further agrees (a) that any and all Inventions, created, written, developed,
furnished or produced by the Consultant during the term of the Agreement
shall be the exclusive property of the Company, and that the Consultant shall
not have any right, title or interest of any kind therein or thereto or in
and to any results or proceeds therefrom, and (b) that at any time, during
the term of this Agreement, the Consultant will (1) upon the request and at
the expense of the Company, (i) obtain patents or copyrights on, or (ii)
permit the Company to patent or copyright, any such material, whichever is
appropriate, and/or (2) at the request of the Company, execute any and all
assignments, instruments of transfer, or other documents, that the Company
deems necessary or appropriate to transfer to the Company all rights in or to
such materials or to evidence the Company's ownership of such rights or any
of them. The Consultant shall not, without limitation as to time or place,
use any Invention except on Company business during the term of the Agreement
or disclose same to any other person, firm or corporation, except for
disclosure on Company business.
SECTION 6. SOLICITATION. During the term of this Agreement, the Consultant shall
not directly or indirectly solicit any employee, consultant and/or vendor of the
Company( including, but not limited to, any software or other supplier with whom
the Company has a contractual relationship which is material to its business)
for participation in any other business that competes with the Company.
SECTION 7. COMPENSATION AND EXPENSE REIMBURSEMENT. (a) As compensation for
services rendered, Consultant shall receive the sum of $937,500 to be paid by
the Company for the period ending December 31, 1999. At the election of the
Consultant, part or all of the compensation may be due and payable in advance,
and may be paid in equivalent value of the Company's Common Stock, provided that
such Stock shall be free from all restrictions as to transferability and
marketability.
(b) Upon submission by Consultant of proper receipts and
itemized accounts, the Company shall forthwith (following itemized request by
Consultant) reimburse Consultant for all reasonable expenses properly incurred
by it in connection with the performance of its duties hereunder.
SECTION 8. MISCELLANEOUS PROVISIONS.
(a) The Consultant acknowledges that the injury that would be suffered
by the Company as a result of a breach of the provisions of this Agreement would
be irreparable and that an award of monetary damages to the Company for such a
breach would be an inadequate remedy. Consequently, the Company will have the
right, in addition to any other rights it may have, to obtain injunctive relief
to restrain any breach or threatened breach or otherwise to specifically enforce
any provision of this Agreement, and the Company will be obligated to post bond
or other security in seeking such relief.
(b) This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred.
(c) All notices and other communications required or permitted
hereunder shall be in writing and may be personally delivered, deposited in the
United States mail (first class postage prepaid, return receipt requested),
transmitted by facsimile with a copy by United States mail (first class postage
prepaid), or sent by a private messenger or overnight courier which issues
delivery receipts, addressed to the party for whom they are intended at the
following addresses:
Address for the Company: USA Xxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Address for the Consultant: Xxxxx Xxxxxxxxx .
000 Xxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Such notices and other communications shall be deemed effective upon receipt,
and in any event be deemed received five days after deposit in the U.S. mail,
one business day after the business day of transmission by facsimile, or one
business day after the business day of deposit with an overnight courier, as the
case may be.
(d) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended orally, but only by
an agreement in writing signed by the parties hereto.
(e) This Agreement will be governed by the laws of the State of
California without regard to conflicts of laws principles.
(f) If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
(g) This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
COMPANY:
USA Xxxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx,
Chief Executive Office
CONSULTANT:
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx.
