Exhibit 4.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into this 3rd
day of June, 2001, by and between Vincent Bon whose address is at 69 rue de
Lausanne 1202, Geneva, Switzerland (the "Consultant"), and Victor Ebner
Enterprises, Inc. ("VEEI") a Florida corporation with an office at 575 Madison
Avenue, New York, New York 10022 (the "Client").
WHEREAS, the Consultant is willing and capable of providing various consulting
services, hereinafter defined, for and on behalf of the Client; and
WHEREAS, the Client desires to retain the Consultant as an independent
Consultant and the Consultant desires to be retained in that capacity upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consulting Services. The Client hereby retains the Consultant as an
independent Consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The Consultant shall render to the Client such
services as set forth on Exhibit A, attached hereto and by reference
incorporated herein.
2. Time, Place and Manner of Performance. The Consultant shall be
available for advice and counsel to Client and representatives and agents of the
Client at such reasonable and convenient times and places as may be mutually
agreed upon. Except as aforesaid, the time, place and manner of performance of
the services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined in the sole discretion
of the Consultant.
3. Term of Agreement. The Term of this Agreement shall commence on the
date hereof and shall terminate upon completion of the services described in
Exhibit A.
4. Compensation. In full consideration of the services to be provided for
the Client by the Consultant, as fully set forth in Exhibit A, upon execution of
this Agreement, the Client agrees to compensate Consultant in the manner set
forth on Exhibit B.
5. Expenses. Consultant shall be solely responsible for all anticipated
expenses and disbursements to be made in connection with his performance under
this Agreement.
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6. Termination.
(a) This Agreement may be terminated at any time by mutual written
agreement of the parties hereto.
(b) This Agreement shall terminate upon the dissolution,
bankruptcy or insolvency of either party.
(c) The Client shall have the right and discretion to terminate
this Agreement should the Consultant violate any law, ordinance, permit or
regulation of any governmental entity which has a material adverse effect on the
Consultant's ability to perform under this Agreement.
(d) The Client shall have the right and discretion to terminate
this Agreement should the Consultant fail to cure, within 15 days after receipt
of notice from the Client, any of the following:
(i) Any willful breach of duty or habitual neglect of
duty by the Consultant;
(ii) Any material breach by the Consultant of the
obligations in Section 7; or
(iii) Any material acts or events which inhibit the
Consultant from fully performing his responsibilities under this Agreement in
good faith.
7. Confidentiality. The Consultant recognizes and acknowledges that the
Consultant has and will have access to certain confidential information of the
Client and its affiliates that is valuable, special and unique assets and
property of the Client and such affiliates. The Consultant will not, during or
after the Term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any of such information to any person, except to
authorized representatives of the Consultant or his affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such authorization
or consent to disclosure may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protective order, provision of statute, rule,
regulation or procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be disclosed
or in compliance with the terms of a judicial order or administrative process.
8. Conflict of Interest. The Consultant shall be free to perform services
for other persons. The Consultant will notify the Client of the Consultant's
performance of consulting services for any other person which could conflict
with the Consultant's obligations under this Agreement. Upon receiving such
notice, the Client may terminate this Agreement or consent to the Consultant's
outside consulting activities.
9. Disclaimer of Responsibility for Acts of the Client. The obligations of
Consultant described in this Agreement consist solely of the furnishing of
information and advice to the Client in the form of services. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. All final decisions with respect to acts and omissions
of the Client or any affiliates and subsidiaries, shall be those of the Client
or its affiliates, and Consultant shall under no circumstances be liable for any
expense incurred or loss suffered by the Client as a consequence of such acts or
omissions.
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10. Indemnity.
(a) The Client shall protect, defend, indemnify and hold
Consultant and his assigns and attorneys, accountants, employees, officers and
directors harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character resulting
from or relating to or arising out of (a) the inaccuracy, non-fulfillment or
breach of any representation, warranty, covenant or agreement made by the Client
herein; or (B) any legal action, including any counterclaim, to the extent it is
based upon alleged facts that, if true, would constitute a breach of any
representation, warranty, covenant or agreement made by the Client herein; or
(c) negligent actions or omissions of the Client or any employee or agent of the
Client, or any reckless or willful misconduct, occurring during the Term hereof
with respect to any of the decisions made by the Client.
(b) The Consultant shall protect, defend, indemnify and hold
Client and his assigns and attorneys, accountants, employees, officers and
directors harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character resulting
from or relating to or arising out of (a) the inaccuracy, non-fulfillment or
breach of any representation, warranty, covenant or agreement made by the
Consultant herein or the failure of the Consultant to abide by all federal and
state laws and regulations concerning investor relations, stock promotions, and
public disclosure requirements; or (b) any legal action, including any
counterclaim, to the extent it is based upon alleged facts that, if true, would
constitute a breach of any representation, warranty, covenant or agreement made
by the Consultant or any employee or agent of the Consultant herein; or (c)
negligent actions or omissions of the Consultant, or any reckless or willful
misconduct, occurring during the Term hereof with respect to any of the
decisions made by the Consultant.
11. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail or overnight courier to the principal office of each party.
12. Waiver or Breach. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by any party.
13. Assignment. This Agreement and the rights and obligations of the
Consultant hereunder shall not be assignable without the written consent of the
Client.
14. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed in accordance with and under and pursuant to the laws of
the Province of British Columbia and that in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with or by
reason of this Agreement, shall be brought only in a court of competent
jurisdiction within the Province of British Columbia.
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15. Severability and Enforceability. All agreements and covenants contained
herein are severable, and in the event any of them shall be held to be invalid
by any competent court, the Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
16. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreements of the parties and supersedes and replaces all
prior understandings, agreements and negotiations between the parties.
17. Waiver and Modification. Any waiver, alteration or modification of any
of the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, from time to time, may waive
any of its rights hereunder without effecting a waiver with respect to any
subsequent occurrence or transactions hereof.
18. Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any damages assessed, its attorneys' fees and court costs incurred
in litigating or otherwise settling or resolving such dispute . In construing
this Agreement, none of the parties hereto shall have any term or provision
construed against such party solely by reason of such party having drafted the
same.
19. Counterparts and Facsimile Signatures. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first above written.
CONSULTANT: CLIENT:
VINCENT BON VICTOR EBNER ENTERPRISES, INC.
/s/ Vincent Bon /s/ Christian Ebner
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Christian Ebner, President
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