EXHIBIT 4.25
CONSULTING AGREEMENT
This Consulting Agreement (hereinafter the "Agreement") is made this 1st day
of March, 1999 by and among XxxxxxxxxXxx.xxx, Inc, a Nevada corporation, and its
successors and assigns, whose principal place of business is located at 000 Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 (hereinafter the "Company")
and Xxxx Xxxxx, whose principal place of business is located at X. 00xx Xx, #0X
Xxx Xxxx, X.X. 00000 (hereinafter the "Consultant").
RECITALS
WHEREAS, the Company is engaged in providing information about stocks, public
companies, and financial matters via the Internet;
WHEREAS, the Consultant is engaged in providing Internet marketing consulting
services;
WHEREAS, the Company desires to engage the Consultant to provide services at
the request of and subject to the satisfaction of its management, and may avail
itself of the services of the Consultant during the term hereof; and
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, it is agreed:
AGREEMENT
1. Consultant Services. The Company hereby retains Consultant as a consultant,
and the Consultant hereby agrees to accept such retainer, and will perform the
services requested by management of the Company to the Company's satisfaction
during the term hereof. Subject to the terms and conditions of this Agreement,
the Consultant shall provide consulting services at the request of the Company
in connection with its general marketing operations
and projects during the term hereof. Any and all services performed by the
Consultant shall be performed in accordance with the requests of the management
of the Company. The services performed by the Consultant hereunder shall be
rendered only by the Consultant and no one acting for or on behalf of the
Consultant, except those persons normally employed by the Consultant in
rendering services to others, such as support staff, secretaries, bookkeepers
and the like. Consultant's services include Internet marketing consulting
services and such other related services within Consultant's expertise that the
Company's management may request during the term of this Agreement. Consultant
agrees to make itself available for advice and counsel to the management,
officers and directors of the company upon reasonable request and at mutually
agreeable times, including attendance at meetings at the Company's Florida
offices upon request of the Company's President.
2. Compensation. In consideration of the services to be performed by the
Consultant hereunder, Consultant shall be compensated as follows:
2.1 $5,000 per month, with the sum of $10,000 to be paid upon execution of
this Agreement. $5,000 of said sum constitutes payment for all services
rendered to date, and $5,000 is payment for services to be performed
for the one month period starting February 22, 1999.
2.2 A per diem rate of $200 for all services performed outside of the State
of New York
2.3 With 10,000 stock options for shares of XxxxxxxxxXxx.xxx, Inc. The,
terms and conditions for issuance, and the date or dates of issuance of
said options, including restrictions on the sale or transfer of same,
shall be determined solely by the Company. Consultant expressly agrees
that it shall have no claim of any
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nature against the Company for any determination made by the Company
pursuant to this provision.
3. Registration Rights. The shares underlying the options described herein
will have piggy-back registration rights and will be included for
registration in the next registration statement covering any shares issued
in a private placement.
4. Failing to Register Securities; Issuance of Restricted Shares. The shares
that underlie the options "restricted" shares. Any options exercised by
Consultant prior to the registration of said shares will result in the
issuance of restricted shares. If the shares underlying the options are not
capable of registration with the SEC as set forth in Paragraph 3 prior to
the expiration of this Agreement, the parties agree that the Company shall
have the option to issue said shares to the Consultant as restricted
shares. In such circumstance, the transferability of the shares will be
restricted by the Securities Act of 1933, as amended (the "Act"), and
applicable state securities laws and regulations, and the shares will not
be eligible to be sold unless they are subsequently registered or an
exemption from registration is available. If the shares are issued as
restricted shares, the certificates representing such shares will bear
appropriate legends referring to the restrictions on resale and
transferability imposed by the Act and applicable state securities laws and
regulations. If the shares are issued as restricted shares, the Company
shall use its best efforts to prepare and file a registration statement
covering such shares by the earliest practicable date.
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5. Expenses. The Company shall pay for all pre-approved ordinary and necessary
out-of-pocket expenses incurred by the Consultant in connection with the
services to be performed hereunder, upon presentation of proper documentation
therefore.
6. Limitation on Nature of Service. None of the services to be performed by the
Consultant and paid for by the issuance of options or warrants shall be services
related to any "capital raising" transaction.
7. Additional Agreement. Consultant agrees, in addition to the rendering of
Internet marketing consulting services and related services hereunder, it shall
also:
7.1 faithfully render its services to the best of its power, skills, and
ability;
7.2 render services in accordance with the highest standards of the industry;
7.3 at all times behave and conduct itself in a such a manner as will enhance
the Company's reputation;
7.4 at all times provide the Company with all information required by the
Company in connection with Company's business
7.5 comply with all policies, goals and requests communicated to it by the
Company.
8. Confidential Information. The Consultant acknowledges that in the course of
performance of services under this Agreement, he has had or will have access to
and has acquired or will acquire Confidential Information (as hereinafter
described) concerning the Company, its business and operations. The Consultant
agrees that he will not disclose any Confidential Information to third parties
or use any Confidential Information for any purpose other than the performance
of this Agreement except as disclosure may be necessary or appropriate in the
course of performing this Agreement. For purposes of
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this Agreement, the term "Confidential Information" shall include all
information relating to the business of the Company and all processes, services
and other activities engaged in by the Company during the term of this
Agreement; including, but not limited to, customer and contact lists, business
strategies, systems and plans, marketing information, systems and strategies,
programming and software information, projects under development, financing
sources, and research and development methods, plans, and results. Any and all
information pertaining to the Company in Consultant's possession at the time of
termination of this Agreement shall be returned to the Company immediately;
failure to do so shall give rise to the Company's right to withhold any payment
that may be due, seek immediate injunctive relief, as well as monetary damages,
and such other relief as provided by law.
9. Other Activities. It is understood and agreed by the Company that during the
consulting period hereunder, Consultant may participate in any other business
activity or endeavor so long as such participation does not interfere with its
duties and ethical obligations to the Company under this Agreement and provided
that such activities do not violate any other covenants by Consultant in favor
of the Company.
10. Indemnification. Each party to this Agreement (hereinafter "Indemnifying
Party") hereby agrees to indemnify the other party to this Agreement
(hereinafter "Indemnified Party") for and hold the Indemnified Party harmless
against the following: (a) any and all loss, liability or damage resulting from
any breach or non-fulfillment of any agreement or obligation of the Indemnifying
Party under this Agreement; (b) any losses, damages, fees, settlements, or other
costs or expenses resulting from any misstatement of a material fact or omission
of a material fact by the Indemnifying Party contained herein to the extent that
any such misstatement or omission was based upon information supplied by the
Indemnifying Party; and (c) any and all actions, suits, proceedings, damages,
assessments,
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judgments, settlements, costs and expenses, including reasonable attorney's
fees, incurred by the Indemnified Party as a result of failure or refusal of the
Indemnifying Party to defend any claim incident to or otherwise honor the
foregoing provisions after having been given notice of and an opportunity to do
so.
11. Term; Expiration. The "Effective Date" of this Agreement is the date first
stated above. This Agreement shall remain in effect until expiration as
hereinafter provided. This Agreement shall expire on the date that is twelve
(12) months after the Effective Date, unless extended in writing by agreement of
the parties. Notwithstanding the foregoing, expiration of this Agreement
pursuant to this Paragraph shall not alter or excuse the parties' obligations
under Paragraphs 3, 4, 8, & 10 of this Agreement.
12. Termination. It is agreed and understood that either party may terminate
this Agreement at any time, for any reason or for no reason, solely upon the
giving of notice of termination to the other party in writing, in accordance
with the notice provisions herein. In the event Company terminates this
Agreement prior to its expiration date, it will pay to Consultant the sum of
$2500 for each three-month period of service, and shall have no further
obligation of any nature to Consultant.
13. Independent Contractor. The Company and the Consultant agree that the
Consultant is an independent contractor for all services to be performed under
the terms and conditions of this Agreement and shall not be deemed to be the
Company's agent for any purpose whatsoever and is not granted any right or
authority under this Agreement to assume or create any obligation or liability,
whether express or implied, absolute or contingent, on the Company's behalf, or
to bind the Company in any manner. The Consultant shall be liable for any FICA
taxes, withholding or other similar taxes or charges arising from the issuance
of any options or shares of the Company's stock or any
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other compensation received hereunder, and the Consultant shall indemnify and
hold harmless the Company therefrom; it is understood by the parties that the
value of all such items has been taken into account by the parties in
determining the amount of compensation for services rendered by the Consultant
hereunder.
14. Representations and Warranties of the Company.
14.1 Corporate Status. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada.
14.2 Securities Laws. The Company shall fully comply any and all federal and
state securities laws, rules, and regulations governing the issuance of any
options or shares.
14.3 Reports with the SEC. The Company will file with the SEC all reports
required to be filed by it, and such reports will be true and correct in all
material respects.
15. Representations and Warranties of Consultant. The Consultant represents and
warrants to, and covenants with, the Company as follows:
15.1 Retainer. The Consultant has been retained by the Company, and has
agreed to perform the services requested by management of the Company during
the term hereof. The services performed by the Consultant shall be rendered
only by the Consultant, and no one acting for or on behalf of the Consultant,
without the express written consent of the Company.
15.2 Limitation on Services. None of the services rendered or to be rendered
by the Consultant and paid for by the issuance of options or shares shall be
services related to any "capital raising" transaction.
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15.3 Valid Obligation; No Conflicts. Execution of this Agreement and
performance of services hereunder by Consultant constitute valid and binding
obligations of Consultant, which will not violate any other agreement or
obligation of the Consultant, there exist no other agreements which could
impede or impair his ability to perform hereunder.
16. Miscellaneous Provisions.
16.1 Notices. All notices or other communications required or permitted to be
given pursuant to this Agreement shall be in writing and shall be considered
as properly given or made if hand delivered, mailed from within the United
States by certified or registered mail, or sent by prepaid telegram or fax
(upon receipt of a return fax acknowledging receipt of the faxed
communication) to the applicable addresses appearing in the preamble to this
Agreement, or to such other addresses as a party may have designated by like
notice forwarded to the other parties hereto. All notices, except notices of
change of address, shall be deemed given when mailed or hand delivered and
notices of change of address shall be deemed given when received.
16.2 Further Assurances. At any time, and from time to time, after the
execution hereof, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to carry
out the intent and purposes of this Agreement.
16.3 Binding Agreement; Non-Assignability. Each of the provisions and
agreements herein, contained shall be binding upon and ensure to the benefit
of the personal representatives, heirs, devises, successors and permitted
assigns of the respective parties hereto; however, none of the rights or
obligations hereunder attaching to any Consultant may be assigned, without
the express written consent of the Company, and
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none of the rights or obligations hereunder attaching to the Company may be
assigned, without the express written consent of the Consultant.
16.4 Entire Agreement. This Agreement, and the other documents referenced
herein, constitute the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes and cancels any prior
agreement, representation or communication, whether oral or written, between
the parties relating to the transactions contemplate herein or subject matter
hereof. No amendment, modification or alternation of the terms hereof shall
be binding unless the same is in writing, dated subsequent to the date hereof
and duly approved and executed by each of the parties hereto.
16.5 Severability. Every provision of this Agreement is Intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
16.6 Waiver of Breach. A waiver by either party of a breach of any provisions
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
16.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Governing Law. This Agreement, and the application or interpretation hereof,
shall be governed exclusively by its terms and by the laws of the State of
Florida. Venue for all purposes shall be deemed proper within the State or
Federal Courts of the State of Florida,
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where the Company's principle place of business is located, without giving
effect to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first written above.
XxxxxxxxxXxx.xxx, Inc.
By: [Signature appears here]
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Xxxx Xxxxx
By: /s/ Xxxx Xxxxx
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