EXHIBIT 4.4
CONFIDENTIAL
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 3rd day of May 2003, by and between Nova International Films, Inc. and
its affiliates, an OTC-Bulletin Board Company (the "Company") and Patrick J. Ko
(the "Consultant").
WHEREAS, Consultant is in the business of providing management
consulting and advisory services; and
WHEREAS, The Company deems it to be in its best interest to retain
Consultant to provide consulting services to and for it and Consultant desires
to so provide such services;
NOW, WHEREFORE, in consideration of the mutual promises and covenants
set forth in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. For a period of 12 months, beginning on May 3rd, 2003 (the "Consulting
Period"), Consultant shall serve as an independent consultant and advisor to the
Company on matters relating to the structure, management, and operation of the
Company and its subsidiaries; the identification and assistance with the
location of potential business partners; the establishment of offices and
operations outside of China; the business dealings with non-Chinese entities,
particularly with U.S. companies; the identification and negotiation of
agreements with prospective joint venture and strategic alliance partners, both
foreign and domestic; the preparation and implementation of new business plans;
the identification and securing of agreements with prospective officers,
directors, consultants, and employees.
2. During the Consulting period, the Company shall be entitled to Consultant's
services for reasonable times when and to the extent reasonably requested by,
and subject to the reasonable direction of, the Company's Chairman, Chief
Executive Officer and the Board of Directors. It is understood that the
Consultant's services are not exclusive to the Company and Consultant shall be
free to perform services for other persons or entities. However, the Consultant
will notify the Company of its performance of consulting services for any other
person or entity that could conflict with its obligations under this Agreement.
Upon receiving such notice, the Company may terminate this Agreement or consent
to the Consultant's outside consulting activities; failure to terminate this
Agreement, within seven (7) days of receipt of written notice of conflict, shall
constitute the Client's ongoing consent to the Consultant's outside consulting
services.
3. Consultant's services shall be rendered from his office or home, or, at the
Company's request, from the Company's executive offices. Reasonable travel and
living and other expenses necessarily incurred by Consultant to render services
at locations other than his office or home or from the Company's offices, shall
be reimbursed by the Company promptly upon receipt of proper invoices and
statements with regard to the nature and amount of those expenses.
4. Consultant shall have no authority to bind the Company by or obtain any
obligation, agreement, promise, or representation without first obtaining the
written approval of the Chief Executive Officer of the Company. Consultant shall
not incur any liability on behalf of the Company or in any way represent or bind
the Company in any manner or thing whatsoever and nothing herein shall be deemed
to constitute either party the agent or representative of the other. The Company
shall indemnify and hold Consultant harmless from and against any liability
resulting from the performance of the consulting services hereunder.
5. In consideration of Consultant's entering into this Agreement, The Company
has agreed to issue to Consultant on or before May 8 2003:
A. $15,000 cash retainer per month, or lump sum of 500,000 shares
of The Company's Common Stock (the "Shares");
B. Five year warrants (the "Warrants") to purchase 250,000 shares
of The Company's Common Stock (the "Warrant Shares"), with an
exercise price equal to $0.45. The Warrants shall be
exercisable and registered for sale immediately after the date
of issuance, and shall expire 5 years after the date of
issuance, unless otherwise extended by the Company. The
Warrants shall include customary cashless exercise provision
and will be non-redeemable and provide for automatic exercise
upon expiration. The Warrants shall be transferable, subject
only to the securities laws, by the holders thereof.
6. The Company agrees to file an S-8 Registration Statement on or before May
8th, 2003 to register the Shares and the Warrants Shares for sale, at the
Company's sole expense. If the S-8 filing is not effective, the Company will,
within 7 days, file an appropriate registration statement in lieu thereof, at
the Company's expense. The Company will provide any legal opinions required to
effectuate the registration of the Shares and the Warrant Shares. The Company
agrees to deliver the Shares free via DTC to a brokerage account established in
the name of Consultant by the Consultant or deliver to Consultant a certificate
for the proper number of Shares without a restrictive legend, as requested by
Consultant. In addition, if the S-8 filing is deemed non-effective for any
reason, the Company shall pay to Consultant $15,000 per month, with each such
payment due on the first day of each month throughout the term of this
Agreement. Any such payments received by Consultant will reduce pro rata the
number of Shares due to Consultant at such time as the S-8 filing or any
subsequent fillings shall be approved.
7. Consultant understands and agrees that he is an independent contractor rather
than an employee or agent of The Company. Nothing contained herein shall be
considered to create the relationship of employer-employee between the parties
to this Agreement. Consultant shall be responsible for withholding, paying and
reporting any and all required federal, state or local income, employment and
other taxes and charges. Consultant understands and agrees that the Company will
make no deduction from payments to Consultant for federal or state tax
withholdings, social security, unemployment, worker's compensation or disability
insurance.
8. It is acknowledged and agreed by the Company that Consultant is not rendering
legal advice or performing accounting services, nor acting as an investment
advisor or broker-dealer within the meaning of applicable state and federal
securities laws. It is further acknowledged and agreed by the Company that that
Consultant cannot guarantee the results or effectiveness of any of the services
rendered or to be rendered by Consultant hereunder. Rather, Consultant shall use
its best efforts to conduct its services and affairs in a professional manner
and in accordance with good industry.
9. Consultant agrees that he will not, without the Company's prior consent,
disclose to anyone, any trade secrets of the Company or any confidential,
non-public information relating to the Company's business, operations or
prospects.
10. It is understood and agreed that the services of Consultant are unique and
confidential in nature and neither Consultant nor the Company shall delegate or
assign all or any portion of his or its required performance to any other
individual, firm or entity, without the other's written consent.
11. No waiver, amendment or modification of any provision of this Agreement
shall be effective unless in writing and signed by both parties. This Agreement
shall be binding upon and inure to the benefit of the heirs, successors,
permitted assigns and legal representatives of the parties. This Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior negotiations, discussions and other
agreements with respect to the subject matter hereof.
12. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Georgia. 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. The undersigned signatories signing for The
Company have full authority to execute this Agreement on behalf of The Company
and thus to legally bind The Company to all of the terms hereof.
IN WITNESS WHEROF, this Agreement has been executed as of the 3rd day of May
2003.
CONSULTANT: COMPANY:
Patrick J. Ko Nova International Films, Inc.
By:__________________________ By:_____________________________
Name: Raymond Ying-Wai Kwan
Title: Chief Executive Officer