EXHIBIT 4.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of the 2nd
day of October, 2003 (the "Effective Date") between CIRCLE GROUP HOLDINGS, INC.,
a Illinois corporation with its principal address 0000 Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 (the "Company") and XXXXXXX X. XXXXX, with his principal address
at 0 Xxxx Xxxxx, Xxxx Xxxxx, Xxx Xxxx, XX 00000 (the "Consultant").
WHEREAS, the Company is in need of assistance in introduction of the
Company to related business and to market the ideas of the Company.;
WHEREAS, the Company also requires assistance in other areas of
business practice, including, but not limited to introductions to public
relations, investor relations and other types of firms and to assist with
strategic, marketing and other planning; and
WHEREAS, Consultant has the ability and the capabilities to assist the
Company with what is needed by the Company.
NOW, THEREFORE, for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties do hereby agree as
follows;
1. ENGAGEMENT. The Company hereby engages the Consultant to provide the
consulting services as described in Section 2.1 below (the "Services")
during the Term and any Renewal Term (defined in Section 3.1 below), and
the Consultant accepts the engagement.
2. SERVICES.
2.1 During the Term and any Renewal Term, the Consultant will, upon
request, provide to the Company the Services on an "as needed"
basis, including, but not limited to, those described below.
(a) Assisting, along with any attorney(s) and/or Financial Officers
and/or Independent Auditor of the Company in the review of merger
candidates and/or purchasers, Due Diligence, Advisory Services or
major growth strategies;
(b) Assisting in the locating and retaining of PR, IR or other related
firms, on terms agreeable to the Company;
(c) assisting management in refining its business plan;
(d) assisting management in connection with identifying and evaluating
potential investments, acquisitions, strategic partnerships, joint
ventures and/or licensing opportunities for the Company and its
products and;
(e) assisting with the dissemination of information about the Company to
the investment community at large;
(f) arranging on behalf of the Company, at appropriate times,
introductions and/or meetings with broker/dealers, investment firms
and securities analysts, among others;
(g) assisting management in broadening the Company's financial and
investor public relations; and (h) Acting as the Senior Financial
Consultant and in providing such other related consulting services
as mutually agreed to by the Company and the Consultant.
2.2 STAFFING. The Consultant will maintain in its employ, or otherwise
have available to it, personnel sufficient in number and adequate in
ability to perform the Services in accordance with this Agreement.
The Consultant will have the exclusive right to direct and control
its personnel and/or third parties providing the Services, other
than in respect of the Company's right, as the recipient of the
Services, to supervise the performance of the Consultant under this
Agreement.
2.3 NON-EXCLUSIVITY. The Company expressly understands and agrees that
the relationship with the Consultant is on a non-exclusive
independent contractor basis for the Services and that the
Consultant shall not be prevented, barred or limited from rendering
consulting services of the same nature or of a similar nature to
those described in this Agreement, or of any nature whatsoever, for
or on behalf of any person, firm, corporation, or entity other than
the Company during the Term and any Renewal Term
2.4 PLACE OF PERFORMANCE. In connection with the Services performed by
the Consultant, the Consultant's activities shall be principally
based in its New York City office, except for required and approved
travel on the Company's behalf.
3. TERM AND TERMINATION.
3.1 TERM. Unless terminated earlier under Section 3.2 below, the term of
this Agreement will be six (6) months (the "Term") commencing on the
Effective Date. The Term may be renewed for an additional six (6)
month period (the "Renewal Term") upon terms and conditions mutually
agreed upon at least thirty (30) days prior to the end of the Term.
3.2 TERMINATION.
(a) This Agreement may be terminated prior to the expiration of the Term
or any Renewal Term by (i) either party if a material breach to this
Agreement by the other party is not effectively cured within 10 days
(the "Cure Period") from receipt of written notice of the breach
from the non-breaching party.
(b) The date of termination (the "Termination Date") shall be defined
to mean; (i) with regard to Section 3.2 (a) (i), the date upon
which the Cure Period expires and there has been no cure, or with
regard to Section 3.2 (a) (ii), the sixtieth day as referred to
therein and (ii) with regard to Section 3.1, the last day of the
Term, or any Renewal Term.
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3.3 EFFECT OF TERMINATION.
(a) Termination under Section 3.2 will not affect any other remedy or
damages available to either of the parties. Upon termination of this
Agreement, no party will have any further obligation to fulfill
commitments under this Agreement, except for those obligations set
forth in this Section 3 and in Sections 5,6, 7 and 8, each of which
expressly survive the termination of this Agreement.
(b) On the Termination Date, the Company shall pay to the Consultant any
earned but unpaid Consulting Fees (defined below), any un-reimbursed
expenses up through the appropriate date, and shall issue and
deliver securities due and issuable in accordance with Section 4.1
below.
4. COMPENSATION
4.1 CONSULTING FEE. On the Effective Date, as compensation for engaging
the Consultant and as an inducement for the Consultant to commit its
resources to the Company, the Company shall issue and deliver to the
Consultant, or its authorized designee, on a non-refundable basis, a
total of 150,000 shares of the Company's common stock without any
restrictive legend, delivery of 75,000 shares upon execution of this
Agreement and 75,000 shares upon introduction to a specialist firm
and a research analyst firm leading to a agreement with the Company,
the shares being registered on Form S-8, in the name of Xxxxxxx X.
Xxxxx, and 150,000 shares deliverable upon execution, of Company's
common stock, which shall bear a restrictive legend, have
"piggy-back" registration rights, and shall be included on any
registration statement (Form SB-2 or otherwise) filed by the Company
with the SEC (the "Registration Statement") subsequent to any
Registration Statement filed by the Company within after six months,
the cost and expense of which will be borne by the Company.
5. INDEMNIFICATION.
5.1 INDEMNIFICATION BY THE COMPANY. If in connection with any services
or matters that are the subject of arise out of this Agreement or
the Consultant's engagement hereunder, the Consultant or any of its
directors, officers, stockholders, employees of agents
(collectively, the "Consultant Indemnitees") becomes involved
(whether or not as a named party) in any action, claim,
investigation or legal proceeding, the Company, will indemnify and
save harmless such Consultant Indemnitees from and against any and
all claims, liabilities, damages, losses, costs and expenses
(including amounts paid in satisfaction of judgments in compromises
and defending against any claims or alleged claims) of any nature
whatsoever, liquidated or unliquidated, that are incurred by any
Consultant Indemnitees' obligations under this Agreement unless the
claim or alleged claim resulted from willful misconduct, negligence
or fraud of the Consultant Indemnitees. The Company agrees that,
without the Consultant Indemnitees' prior written consent, it will
not settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding in respect of
which indemnification
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could be sought under this Section 6 (whether or not the Consultant
Indemnitees are actual or potential parties to such claim, action or
proceeding), unless such settlement, compromise or consent includes
an unconditional release of each Consultant Indemnitee from all
liability arising out of such claim, action or proceeding.
5.2 INDEMNIFICATION BY THE CONSULTANT. If in connection with any
services or matters that are the subject of arise out of this
Agreement or the Consultant's engagement hereunder, the Company or
any of its directors, officers, stockholders, employees of agents
(collectively, the "Company Indemnitees") becomes involved (whether
or not as a named party) in any action, claim, investigation or
legal proceeding, the Consultant, will indemnify and save harmless
such Company Indemnitees from and against any and all claims,
liabilities, damages, losses, costs and expenses (including amounts
paid in satisfaction of judgments in compromises and defending
against any claims or alleged claims) of any nature whatsoever,
liquidated or unliquidated, that are incurred by any Company
Indemnitees' obligations under this Agreement unless the claim or
alleged claim resulted from willful misconduct, negligence or fraud
of the Company Indemnitees. The Consultant agrees that, without the
Company Indemnitees' prior written consent, it will not settle,
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which
indemnification could be sought under this Section 5 (whether or not
the Company Indemnitees are actual or potential parties to such
claim, action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of each Company Indemnitee
from all liability arising out of such claim, action or proceeding.
5.3 PROCEDURES. As to any claim or lawsuit with respect to which party
seeks indemnification hereunder (the "Indemnified Party"), it shall
provide prompt notice thereof to the other party (the "Indemnifying
Party"), and the Indemnifying Party shall have the right to control
the defense of said lawsuit, including the selection of attorneys,
and any settlement thereof, provided that no settlement which
impairs the rights of the Indemnified Party shall be made without
its prior written consent, which consent shall not be unreasonably
withheld.
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6. VENUE AND JURISDICTION.
6.1 Any and all disputes shall be heard and determined in the Courts
located in the State of Illinois, either Federal or State, in the
County of Lake County, as the commencing party may decide, and no
defense such as forum non convenience shall be raised by either
party, notwithstanding the location of any witnesses.
7. COVENANTS
7.1 CONFIDENTIALITY. With respect to information of the Company, which
is clearly marked "Confidential", whatever its nature and form and
whether from Graphic Materials (as defined below) or otherwise
(except such as is generally available through publication or is
previously known to the Consultant, or is lawfully obtained by the
Consultant through a third-party), obtained by the Consultant during
or as a result of its consultancy with the Company and relating to
any invention, improvement, enhancement, product, know-how, formula,
software, process, design, or other creation, or to any use of any
of them, costs (including, without limitation, manufacturing costs),
prices, or to any plans of the Company, or to any other trade secret
or proprietary information of the Company, the Consultant agrees:
a) to hold all such information, inventions and discoveries which
have not otherwise become public knowledge in strict confidence
and not to publish or otherwise disclose any thereof to any
person or entity other than the Company except with the prior
written consent of an officer of the Company, or as may be
required by law;
b) to take all reasonable precautions to assure that all such
information, inventions and discoveries are properly protected
from access by unauthorized persons; and
c) to make no use of nor exploit in any way any such information,
invention or discovery except as required in the performance of
its consultancy for the Company.
For the purposes of this Agreement, the term "Graphic Materials"
includes, without limitation, letters, memoranda, reports, notes,
notebooks, books of account, drawings, prints, specifications,
formulae, software, data print-outs, microfilms, magnetic tapes and
disks and other documents and recordings, together with all copies,
excerpts and summaries thereof.
7.2 FURTHER ASSURANCES. The Company and Consultant will use their best
efforts to implement the provisions of this Agreement, and for such
purpose neither party shall represent to the other any material
facts
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concerning itself during the Term and any Renewal Term which are
false, misleading or untrue and neither party shall intentionally
fail to provide the other with material facts concerning itself or
will in any material manner prevent the Services from being
performed under this Agreement.
8. MISCELLANEOUS.
8.1 LIMITATION OF LIABILITY. IT IS UNDERSTOOD BETWEEN THE PARTIES THAT
NEITHER THE CONSULTANT NOR ANY OF ITS PARTNERS, EMPLOYEES, AGENTS,
OR PRINCIPALS ARE PROVIDING LEGAL SERVICES, ACCOUNTING SERVICES, NOR
BROKERAGE SERVICES, AND SUCH SERVICES MUST BE RETAINED BY THE
COMPANY AT ITS OWN COST AND EXPENSE. IT IS EXPRESSLY ACKNOWLEDGED
THAT THE CONSULTANT WILL UTILIZE ITS BEST EFFORTS IN PERFORMING THE
SERVICES CONTEMPLATED HEREBY BUT NO REPRESENTATIONS ARE MADE OR
GUARANTEE GIVEN BY THE CONSULTANT AS TO THE AMOUNT OF TIME IT WILL
SPEND IN PROVIDING THE SERVICES NOR TO THE ULTIMATE SUCCESS OF ANY
TRANSACTION OR OTHER ACTION UNDERTAKEN BY THE COMPANY. IN NO EVENT
WILL THE AGGREGATE DAMAGES CLAIMED BY THE COMPANY UNDER THIS
AGREEMENT EXCEED THE TOTAL VALUE OF CASH FEES RECEIVED BY THE
CONSULTANT, EXCEPT IN THE CASE OF WILLFUL MISCONDUCT, GROSS
NEGLIGENCE OR ACTUAL FRAUD.
8.2 NOTICES. All notices and other communications provided for or
permitted in this Agreement will be made in writing by
hand-delivery, registered first-class mail, or courier guaranteeing
overnight delivery:
If to the Company to:
CIRCLE GROUP HOLDINGS, INC.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to the Consultant to:
Xxxxxxx X. Xxxxx
0 Xxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
or at such other address as any party specifies by notice given to
the other parties in accordance with this Section 8.2.
All notices and communications will be deemed to have been duly
given; at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, and on the next business day if
timely delivered to a courier guaranteeing overnight delivery;
provided, however, that the inability to deliver any notice or other
communication because of the changed address of
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which no notice was given, or rejection or refusal to accept any
notice or other communication as of the date if such inability to
deliver or rejection or refusal to accept delivery.
8.3 WAIVERS. The failure of a party to this Agreement to insist upon
strict adherence to any of the terms of this Agreement on any
occasion will not be considered a waiver, or deprive that party of
the right thereafter to insist upon strict adherence to that term or
other term of this Agreement. Any waiver must be in writing.
8.4 FORCE MAJEURE. The Consultant will not be responsible for any
failure or delay in performance of its obligations under this
Agreement because of circumstances beyond its reasonable control
including acts of God, fires, floods, wars, civil disturbances,
sabotage, accidents, labor disputes (whether or not the employees'
demands are reasonable and within the party's power to satisfy),
governmental actions or transportation delays.
8.5 GOVERNING LAW. This Agreement, the rights of the parties in, under
and to this Agreement and any dispute or action relating to this
Agreement (whether in contract, tort or otherwise) will be governed
by, construed and enforced in accordance with the laws of Illinois
applicable to the agreements made and performed entirely in that
State. Any legal actions, suits or proceeding arising out of this
Agreement (whether arising in contract, tort or otherwise) other
than any claim, action, dispute or controversy subject to
arbitration under Section 7 hereof, will be brought exclusively in a
federal or state court located in the State of Illinois having
jurisdiction of those courts with respect to any legal actions,
suits or proceeding (whether arising in contract, tort or otherwise)
arising out of this Agreement. In the event of any legal action,
suit or proceeding, the parties waive their right to a jury trail.
8.6 ENTIRE AGREEMENT; AMENDMENTS. This Agreement represents the entire
understanding of the parties and superceded and cancels any and all
prior negotiations, undertakings and agreements between the parties,
whether written or oral, with respect to the subject matter of the
Agreement. This Agreement may be amended, modified, waived or
terminated only by a written instrument signed by both parties to
this Agreement.
8.7 BINDING EFFECT. This Agreement will insure to be the benefit of and
will be binding upon the parties their respective successors,
permitted transferees and assigns.
8.8 ASSIGNMENT AND BENEFITS OF AGREEMENT. This Agreement may not be
assigned by any party to this Agreement without the written consent
of the other party. Nothing in this Agreement, express or implied,
is intended to confer upon any person other that the parties hereto,
and their said successors and assigns, any rights under or by reason
of this Agreement.
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8.9 INDEPENDENT CONTRACTOR. Each of the Company and the Consultant
certifies that neither party has any authority to act for or bind
the other party except as expressly provided for in this Agreement,
that the Consultant may work for others, and that any persons
provided by the Consultant under this Agreement will be solely the
employees or agents of the Consultant under its sole and exclusive
direction and control.
8.10 SEVERABILITY. To the extent that any provision of this Agreement or
the application thereof is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this
Agreement, or the application of such a provision under other
circumstances, will be unaffected and will continue in full force
and effect unless the invalid or unenforceable provision is of such
essential importance for this Agreement that it is to be reasonably
assumed that the parties would not have concluded this Agreement
without the invalid or unenforceable provision.
8.11 CONSENTS. Any consent or approval to be given under this Agreement
may be delegated by the party to give such consent or approval to
any agent or representative as such party may, from time to time,
authorize in writing.
8.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each of the parties on separate counterparts, each
of which, when so executed, will be deemed an original, not all of
which will constitute but one and the same original.
8.13 THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended or will be construed to confer upon or give any person
other than parties to this Agreement, their permitted successors or
assigns and (to the extent indicated herein) any rights or reminded
under or by reason of this Agreement.
[Rest of Page Intentionally Left Blank]
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8.14 FURTHER ASSURANCES. Each party will take or perform such actions as
reasonable requested by the other party, including the execution of
any additional documents, in order to carry out the intent of, and
to facilitate and effectuate the actions contemplated by this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
CIRCLE GROUP HOLDINGS, INC.
By: ________________________
Name:
Title: President
XXXXXXX X. XXXXX
By: _________________________
Name: ______________________
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