Exhibit 4.1
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement") is
dated as of November 18, 2002, by and between Media and
Xxxxxxxxxxxxx.xxx, Inc., a Nevada corporation with offices located
at 00000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000
(the "Company"), and Xxxxx Xxxxxxxx, an individual with a
residence located at 000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
XX 00000(xxx "Consultant").
AGREED:
1. Consulting Arrangement
The Company hereby engages Consultant as an independent
contractor and not as an employee, to render consulting and
advisory services to the Company as hereinafter provided, and
Consultant hereby accepts such engagement for a period commencing
on _November 18, 2002 and ending on the_November 18, 2003 (the
"Term"). Consultant hereby acknowledges and agrees that Consultant
will not have any authority to bind or act on behalf of the
Company. Consultant shall at all times be an independent
contractor hereunder, rather than an agent, co-venturer, employee
or representative of the Company. The Company hereby acknowledges
and agrees that Consultant may engage directly or indirectly in
other businesses and ventures and shall not be required to perform
any services under this Agreement when, or for such periods in
which, the rendering of such services shall unduly interfere with
such other businesses and ventures, providing that such
undertakings do not completely preempt Consultant's availability
during the term of this Agreement. Neither Consultant nor any
employee of Consultant will be considered by reason of the
provisions of this Agreement or otherwise an employee of the
Company or entitled to participate in any health insurance,
medical, pension, bonus or similar employee benefit plans
sponsored by the Company for its employees. Consultant shall
report all compensation under this Agreement in the manner
appropriate to Consultant's status as an independent contractor
and shall make all filings and pay all taxes that arise with
respect to such compensation.
2. Services
(a) Subject to the terms and conditions of this Agreement, the
Company hereby engages the Consultant, and Consultant hereby
accepts the engagement, to provide advice, analysis and
recommendations (the "Services") to the Company, Namely:
i. Guidance and assistance in available alternatives to maximize
shareholder value;
ii. Banking methods and systems;
iii. Consultant shall use his best efforts to keep the Corporation
informed of all corporate business opportunities which shall come
to his attention and be beneficial to the Corporation's business
so that the Corporation can obtain the maximum benefits from
Consultant's knowledge, experience, and personal contacts.
(b) During the Term, Consultant shall render the Services at such
times and places as are reasonably requested by the Company,
provided that:
i. To the extent practicable, the Services shall be furnished
only at such times and places as are mutually satisfactory to the
Company and Consultant;
ii. Consultant shall not be required to devote more than 10 hours
in any consecutive period of seven (7) days to performing the
Services; and
iii. Consultant shall be entitled to designate up to 30 days
(including weekdays and weekend days) as vacation or sick days,
during which Consultant shall not be required to perform any
Services.
3. Compensation and Expenses
For the Services provided by the Consultant, the Company (i)
shall compensate the Consultant by delivering to the Consultant
not later than November 18, 2002, One Hundred Seventy Five
Thousand (175,000) shares of the common stock of the Company
("Common Stock") that is Freely Tradeable. The Company shall be
responsible for the payment of the reasonable out-of-pocket costs
and expenses of Consultant incurred prior to, or on or after the
date of this Agreement, in connection with its engagement under
this Agreement, including, but not limited to, reasonable fees and
disbursements of counsel for Consultant, travel and related
expenses, document production and computer database charges. The
Company shall reimburse Consultant for such costs and expenses as
they are incurred, promptly after receipt of a request for
reimbursement from Consultant.
4. Confidentiality
(a) The term "Confidential Information" means any and all
information concerning the business, financial position,
accounting treatment and results of operations of the Company
which Consultant may receive or develop as a result of his/her
engagement hereunder. All documents, procedures, policies,
programs, reports, plans, proposals, technical information, know-
how, systems and financial, accounting and other information
unique to or concerning the Company, its customers or principals,
received or developed by Consultant are the property of the
Company and/or such parties. Consultant shall not make any
unauthorized disclosure or use of and shall use his/her best
efforts to prevent publication or disclosure or use of such
Confidential Information.
(b) Consultant acknowledges that any unauthorized disclosure or
use of such Confidential Information by Consultant may result in
material damages to the Company and consents to the issuance of an
injunction or other equitable remedy to prohibit, prevent or
enjoin unauthorized disclosure or use of Confidential Information
by Consultant.
(c) Except as authorized by the Company, Consultant will not:
i. duplicate, transfer or disclose, or allow any other person to
duplicate, transfer or disclose, any of the Company's Confidential
Information;
ii. use the Company's Confidential Information without the prior
written consent of the Company; or
iii. incorporate, in whole or in part, within any domestic or
foreign patent application any proprietary or Confidential
Information.
(d) Consultant will safeguard all Confidential Information at all
times so that it is not exposed to or used by unauthorized
persons, and will exercise at least the same degree of care to
protect the Confidential Information as he would his own
confidential information.
(e) The restrictions and obligations set forth above shall not
apply to the disclosure or use of information which:
i. is or later becomes publicly known under circumstances
involving no breach of this Agreement by Consultant;
ii. is already known to Consultant in the same form at the time
of receipt of the Confidential Information;
iii. is lawfully made available to Consultant by a third party; or
iv. is independently developed by Consultant who has not been
privy to the Confidential Information provided by the Company.
5. Termination
If any party is in material breach of this Agreement, the other
party may terminate this Agreement on 30 days notice by delivering
to such breaching party at its address first set forth above a
written notice of termination specifying the nature of the breach.
If such breach has not been substantially cured within such 30-day
period, this Agreement shall be terminated, provided, however,
that the provisions of Section 4 shall survive the termination of
this Agreement.
6. Assignment
This Agreement is personal to Consultant and is entered into
based upon the singular skill, qualifications and experience of
Consultant. Neither this Agreement nor any of Consultant's
obligations hereunder shall be assigned by Consultant without the
prior written consent of the Company, and any purported assignment
in violation hereof shall be null and void.
7. Independent Contractor Relationship
Consultant and the Company are independent contractors and
nothing contained in this Agreement shall be construed to create
the relationship of partners, principal and agent,
employer/employee or joint venturers. Neither party shall have the
power or right to bind or obligate the other party, nor shall it
hold itself out as having such authority.
8. Notice
Notices and all other communications delivered pursuant to this
Agreement shall be in writing and shall be deemed to have been
duly given to a party (i) when delivered, if personally delivered,
(ii) when sent by facsimile transmission, when receipt therefor
has been duly received, or (iii) when mailed by United States
registered mail, return receipt requested, postage prepaid, or by
recognized overnight courier, addressed to such party at its
address first set forth above or to such other address as such
party may have furnished to the other in accordance herewith,
except that notices of change of address shall be effective only
upon receipt.
9. Successors and Assigns
This Agreement is binding upon and inures to the benefit of the
respective affiliates, successors and permitted assigns of each of
the Company and Consultant.
10. Severability
If any provision of this Agreement for any reason is declared
invalid, such declaration shall not effect the validity of any
remaining portion of the Agreement, which remaining portion shall
remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated and is hereby
declared the intention of the parties that they would have
executed the remaining portions of this Agreement without
including therein any such part, parts or portion which may, for
any reason, be hereafter declared invalid.
11. Miscellaneous
No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed
to in writing and signed by the parties. No waiver by either party
hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the internal law of the State of
Nevada. Any controversy arising under or in relation to this
Agreement shall be settled by binding arbitration in Las Vegas,
Nevada in accordance with the law of the State of Nevada and the
rules of the American Arbitration Association. This Agreement may
be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the Company and Consultant as of the date first written above.
Signature of Consultant:
Name: Xxxxx Xxxxxxxx
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
XxxXxxxx, XX 00000
Signature:_______________________________________
Signature of Company:
Name: MEDIA AND XXXXXXXXXXXXX.XXX, INC
00000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxx 00000
By:_______________________________________
Name:_____________________________________
Title:____________________________________
