EXHIBIT 4.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated July 17, 2001, is made
by and between Xxx Xxxxxxx, an individual ("Consultant"), whose address is 0000
Xxxxxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx, XX 00000, and Collectible Concepts Group,
Inc., a Delaware corporation, ("Client"), having its principal place of business
at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
WHEREAS, Consultant has extensive background with the sports products business
and strategic financing issues;
WHEREAS, Consultant desires to be engaged by Client to provide information,
evaluation and consulting services to the Client in his areas of knowledge and
expertise on the terms and subject to the conditions set forth herein;
WHEREAS, Client is a publicly held corporation with its common stock shares
trading on the Over the Counter Bulletin Board under the ticker symbol "CCGR,"
and desires to further develop its business and increase it's common stock
share's value by enhancing public awareness of the business of the Client and
its image; and
WHEREAS, Client desires to engage Consultant to provide information, evaluation
and consulting services to the Client in his areas of knowledge and expertise on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides to
Client, the parties agree as follows:
1. Services of Consultant. Consultant agrees to develop the marketing of
products of Client on the Internet and otherwise. Consultant will also serve as
an adviser on financial services issues. As such, Consultant will be providing
bona fide services to Client. The services to be provided by Consultant will not
be in connection with the offer or sale of securities in a capital-raising
transaction, and will not directly or indirectly promote or maintain a market
for Client's securities.
2. Consideration. Client agrees to pay Consultant, as his fee and as
consideration for services provided, eleven million shares of S-8 free trading
common stock in Client. Shares are due and payable immediately upon the
effectiveness of the Form S-8 Registration Statement with the U.S. Securities
and Exchange Commission and with any appropriate states securities
administrator. Client also agrees to pay consultant eleven million options to
purchase shares of Client at today's market bid price, which is $0.023. These
options will be exercisable immediately and will remain exercisable for three
years from the date of this contract.
3. Confidentiality. Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be disclosed to
the other party, including, but not limited to, product and business plans,
product designs, sales, costs and other unpublished financial information,
advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
4. Late Payment. Client shall pay to Consultant all fees within fifteen (15)
days of the due date. Failure of Client to finally pay any fees within fifteen
(15) days after the applicable due date shall be deemed a material breach of
this Agreement, justifying suspension of the performance of the "Services"
provided by Consultant, will be sufficient cause for immediate termination of
this Agreement by Consultant. Any such suspension will in no way relieve Client
from payment of fees, and, in the event of collection enforcement, Client shall
be liable for any costs associated with such collection, including, but not
limited to, legal costs, attorneys' fees, courts costs, and collection agency
fees.
5. Indemnification. (a) Client. Client agrees to indemnify, defend, and shall
hold harmless Consultant and/or his agents, and to defend any action brought
against said parties with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees to the extent that such action
is based upon a claim that: (i) is true, (ii) would constitute a breach of any
of Client's representations, warranties, or agreements hereunder, or (iii)
arises out of the negligence or willful misconduct of Client, or any Client
Content to be provided by Client and does not violate any rights of third
parties, including, without limitation, rights of publicity, privacy, patents,
copyrights, trademarks, trade secrets, and/or licenses. (b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless Client, its
directors, employees and agents, and defend any action brought against same with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of the
gross negligence or willful misconduct of Consultant. (c) Notice. In claiming
any indemnification hereunder, the indemnified party shall promptly provide the
indemnifying party with written notice of any claim, which the indemnified party
believes falls within the scope of the foregoing paragraphs. The indemnified
party may, at its expense, assist in the defense if it so chooses, provided that
the indemnifying party shall control such defense, and all negotiations relative
to the settlement of any such claim. Any settlement intended to bind the
indemnified party shall not be final without the indemnified party's written
consent, which shall not be unreasonably withheld.
6. Limitation of Liability. Consultant shall have no liability with respect to
Consultant's obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Consultant has been
advised of the possibility of such damages. In any event, the liability of
Consultant to Client for any reason and upon any cause of action, regardless of
the form in which the legal or equitable action may be brought, including,
without limitation, any action in tort or contract, shall not exceed ten percent
(10%) of the fee paid by Client to Consultant for the specific service provided
that is in question.
7. Termination and Renewal. (a) Term. This Agreement shall become effective on
the date appearing next to the signatures below and terminate one (1) year
thereafter. Unless otherwise agreed upon in writing by Consultant and Client,
this Agreement shall not automatically be renewed beyond its Term. (b)
Termination. Either party may terminate this Agreement on thirty (30) calendar
days written notice, or if prior to such action, the other party materially
breaches any of its representations, warranties or obligations under this
Agreement. Except as may be otherwise provided in this Agreement, such breach by
either party will result in the other party being responsible to reimburse the
non-defaulting party for all costs incurred directly as a result of the breach
of this Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement. (c)
Termination and Payment. Upon any termination or expiration of this Agreement,
Client shall pay all unpaid and outstanding fees through the effective date of
termination or expiration of this Agreement. And upon such termination,
Consultant shall provide and deliver to Client any and all outstanding services
due through the effective date of this Agreement.
8. Miscellaneous.
(a) Independent Contractor. This Agreement establishes an "independent
contractor" relationship between Consultant and Client.
(b) Rights Cumulative; Waivers. The rights of each of the parties under this
Agreement are cumulative. The rights of each of the parties hereunder shall not
be capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any other such
right. Any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a suspension or
any variation of any such right.
(c) Benefit; Successors Bound. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights, and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives, successors,
and permitted assigns.
(d) Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
(e) Assignment. Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or in part,
without the written consent of the other party, and any purported assignment in
violation hereof shall be void.
(f) Amendment. This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability. Each part of this Agreement is intended to be severable. In
the event that any provision of this Agreement is found by any court or other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue in full
force and effect.
(h) Section Headings. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(i) Construction. Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be deemed to
include each of the singular, and pronouns of one or no gender shall be deemed
to include the equivalent pronoun of the other or no gender.
(j) Further Assurances. In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered, to the
requesting party such other instruments and to take such other actions as the
requesting party may reasonably require to carry out the terms of this Agreement
and the transactions contemplated hereby.
(k) Consents. The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of such party.
(l) Survival of Provisions. The provisions contained in paragraphs 3, 5, 6, and
8 of this Agreement shall survive the termination of this Agreement.
(m) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
have agreed to and accepted the terms herein on the date written above.
Collectible Concepts Group, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, President
By: /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
