EXHIBIT 4.2
CONSULTANT AGREEMENT
CONSULTANT AGREEMENT, dated as of November 22, 2000,
between Advantage Life Products, Inc., a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxxx (the
"Consultant") an individual resident in the United
Kingdom. The parties hereto agree as follows:
1. Consulting.
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(a) Agreement to Consult. Upon the terms and subject to
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the conditions of this Agreement, the Company shall
hereby hire the Consultant and the Consultant hereby
agrees to be hired by the Company.
(b) Term of Consulting. The Company shall hire the
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Consultant pursuant to the terms hereof for the period
commencing on the date Consultant begins non-exclusive
Consulting with the Company (the "Start Date"), which
shall be the earliest date reasonably possible for
Consultant, and ending on February 28, 2001, provided
that the Consultant's consulting with the Company shall
be deemed to be automatically renewed upon the same terms
and conditions for an additional three-month period
ending on May 31, 2001 unless either party hereto shall
have given the other party written notice that such party
does not intend to renew the Agreement as of such date at
least thirty (30) days in advance of the date on which
this Agreement would otherwise automatically be renewed.
The period during which the Consultant is hired pursuant
to this Agreement, including any renewal thereof in
accordance with this Section (1)(b), shall be referred to
as the "Consulting Period."
2. Consulting work.
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During the Consulting Period, the Consultant shall act as
Business Strategic Advisor and the Consultant shall have
the duties, responsibilities and obligations customarily
assigned to individuals serving in the position or
positions in which the Consultant serves hereunder. The
Consultant shall report to the President of the Company.
Rights to all tangible, intangible and intellectual
property including, but not limited to Copyrights,
Patents and Trade Marks that the Consultant produces
during the Consultant period belongs and will after any
termination of the Consulting period belong to the
Company, and the Consultant and the Company hereby agree
to draft a detailed agreement at a later stage in regard
to that matter. The Consultant is not required to devote
his full time to the services required of him hereunder,
but shall use his best efforts, judgment, skill and
energy to perform such services in a manner consonant
with the duties of his position and to improve and
advance the business and interests of the Company.
3. Compensation Fee.
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The Company shall pay the Consultant a fee of 450,000
shares of Common stock of the Company listed on the NQB
Pink Sheets under the trading symbol ADVT for the first
period ending February 28, 2000. Following renewal of
the Consultant agreement the parties hereto agree to re-
negotiate the number of shares, a lump sum, or a
combination of both, as the case may be.
4. Non-competition and Confidentiality.
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(a) Non-competition. If the Consultant's Consulting with
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the Company terminates during the Consulting Period for
any reason during the three-month period following such
termination or resignation of the Consultant (the
"Restriction Period"), the Consultant shall not become
associated with any entity, whether as a principal,
partner, employee, consultant or shareholder (other than
as a holder of not in excess of 1% of the outstanding
voting shares of any publicly traded company), that is
actively engaged in the any business that directly
competes with any business, that at the time of
termination, The Company was actively engaged in during a
period of three years.
(b) Confidentiality. Without the prior written consent
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of the Company, except for disclosures of Confidential
Information (as defined below) in the ordinary course of
business that, individually and in the aggregate, are not
materially injurious to the Company or any of its
subsidiaries, and except to the extent required by an
order of a court having competent jurisdiction or under
subpoena from an appropriate government agency, the
Consultant shall not disclose any trade secrets, customer
lists, computer programs, drawings, designs, marketing or
sales plans, management organization information
(including data and other information relating to members
of the Board or management), operating policies or
manuals, business plans, financial records or other
financial, commercial, business or technical information
relating to the Company or any of its subsidiaries or
information designated as confidential or proprietary
that the Company or any of its subsidiaries may receive
belonging to suppliers, customers or others who do
business with the Company or any of its subsidiaries
(collectively, "Confidential Information") to any third
person unless such Confidential Information has been
previously disclosed to the public by the Company or is
in the public domain (other than by reason of the
Consultant's breach of this Section 4(b)). If the
Consultant receives an order of a court or a subpoena
requiring the Consultant to disclose any Confidential
Information, as described above, the Consultant shall
promptly deliver a copy of such order or subpoena to the
Company and the Company shall use its best efforts to
assist the Consultant in responding thereto.
(c) Company Property. Promptly following the
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Consultant's termination of Consulting, the Consultant
shall return to the Company all property of the Company,
and all copies thereof in the Consultant's possession or
under his control, including, without limitation, all
Confidential Information, in whatever media.
(d) Nonsolicitation of Employees. During the Consulting
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Period and the Restriction Period, the Consultant shall
not directly or indirectly induce any employee of the
Company or any of its subsidiaries to terminate
Consulting with such entity, and will not directly or
indirectly, either individually or as owner, agent,
employee, consultant or otherwise, employ or offer
Consulting to any person who is or was hired by the
Company or a subsidiary thereof unless such person shall
have ceased to be hired by such entity for a period of at
least six months.
(e) Injunctive Relief with Respect to Covenants. The
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Consultant acknowledges and agrees that the covenants and
obligations of the Consultant with respect to non-
competition, non-solicitation, confidentiality and
Company property relate to special, unique and
extraordinary matters and that a violation of any of the
terms of such covenants and obligations will cause the
Company and its subsidiaries irreparable injury for which
adequate remedies are not available at law. Therefore,
the Consultant agrees that the Company and its
subsidiaries shall be entitled to an injunction,
restraining order or such other equitable relief (without
the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to
restrain the Consultant from committing any violation of
the covenants and obligations contained in this Section
4. These injunctive remedies are cumulative and are in
addition to any other rights and remedies the Company or
its subsidiaries may have at law or in equity.
5. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding on
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the Company and any person or entity which succeeds to
the interest of the Company (regardless of whether such
succession occurs by operation of law, by reason of the
sale of all or a portion of the Company's stock or assets
or a merger, consolidation or reorganization involving
the Company). This Agreement shall also inure to the
benefit of the Consultant's heirs, executors,
administrators and legal representatives.
(b) Assignment. Except as provided under Section 5 (a)
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above, neither this Agreement nor any of the rights or
obligations hereunder shall be assigned or delegated by
either party hereto without the prior written consent of
the other party.
(c) Entire Agreement. This Agreement supersedes any and
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all prior agreements between the parties hereto, and
constitutes the entire agreement between the parties
hereto with respect to the matters referred to herein,
and no other agreement, oral or otherwise, shall be
binding between the parties unless it is in writing and
signed by the party against whom enforcement is sought.
There are no promises, representations, inducements or
statements between the parties other than those that are
expressly contained herein. The Consultant acknowledges
that he is entering into this Agreement of his own free
will and accord, and with no duress, that he has read
this Agreement and that he understands it and its legal
consequences. No parole or other evidence may be
admitted to alter, modify or construe this Agreement,
which may be changed only by a writing signed by the
parties hereto.
(d) Severability; Reformation. In the event that one or
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more of the provisions of this Agreement shall become
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not be affected
thereby. In the event any part or Section of this
agreement is not enforceable in accordance with its
terms, the Consultant and the Company agree that such
Section, or such portion of such Section, shall be
reformed to make it enforceable in a manner, which
provides the Company the maximum rights permitted under
applicable law.
(e) Waiver. Waiver by either party hereto of any breach
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or default by the other party of any of the terms of this
Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from
the breach or default waived. No waiver of any provision
of this Agreement shall be implied from any course of
dealing between the parties hereto or from any failure by
either party hereto to assert their rights hereunder on
any occasion or series of occasions.
(f) Notices. Any notice required or desired to be
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delivered under this Agreement shall be in writing and
shall be delivered personally, by courier service, by
registered mail, return receipt requested, or by telecopy
and shall be effective upon dispatch to the party to whom
such notice shall be directed, and shall be addressed as
follows (or to such other address as the party entitled
to notice shall hereafter designate in accordance with
the terms hereof):
if to the Company: Advantage Life Products, Inc.
00 Xxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attn: Mats Xxxxxxxx
if to the Consultant: Xx. Xxxxx X. Xxxxxxx
250 London Road
Boston, Lincs.
PE21 7 AZ
England
Attn: Xx. Xxxxx X. Xxxxxxx
(g) Amendments. This Agreement may not be altered,
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modified or amended except by a written instrument signed
by each of the parties hereto.
(h) Headings. Headings to sections in this Agreement are
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for the convenience of the parties only and are not
intended to be part of or to affect the meaning or
interpretation hereof.
(i) Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original
but both of which together shall constitute one and the
same instrument.
(j) Withholding. Any payments provided for herein shall
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be reduced by any amounts required to be withheld by the
Company from time to time under applicable Federal, state
or local income or Consulting tax laws or similar
statutes or other provisions of law then in effect.
(k) Governing Law. This Agreement shall be governed by
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the laws of the State of New Jersey, without reference to
principles of conflicts or choice of law under which the
law of any other jurisdiction would apply.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be executed by its duly authorized officer and the
Consultant has hereunto set her hand as of the day and
year first above written.
[SIGNATURES APPEARS ON THE NEXT PAGE]
Advantage Life Products, Inc.
/s/ Mats X. Xxxxxxxx Date: 11/22/00
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By: Mats X. Xxxxxxxx
Title: President
The Consultant:
/s/ Xxxxx X. Xxxxxxx Date: 11/22/00
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Xxxxx X. Xxxxxxx
