Exhibit 4.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this Agreement") is made as of the 4th day of April,
2003 by and between BevSystems International, Inc., ("the Company"), a Delaware
corporation and Jon Ellis, Esq. ("the Consultant").
WHEREAS, the Company is a publicly traded company whose shares are quoted on the
OTC Bulletin Board;
WHEREAS, the Consultant has provided legal services ("Consulting Services"); and
WHEREAS, the Company wishes to compensate Consultant for services already
rendered and future services on the following terms and conditions;
NOW, THEREFORE, the Company and the Consultant agree as follows:
1. In exchange for providing the Consulting Services to Company and as payment
for services already provided, for which the Company currently owes Consultant
the amount of $45,000 (the "Balance"), the Consultant shall receive seven
hundred and fifty thousand (750,000) S-8 shares of Company's common stock, par
value $.001 (the "Shares"). Consultant shall not directly or indirectly promote
or maintain a market for the Shares. Moreover, Consultant agrees that the Shares
are not and will not be provided in connection with a capital raising
transaction for the Company, and that Consultant will provide no services
relating to any capital raising or the promotion or maintenance of a market for
the shares of the Company.
2. Following issuance of the Shares, the Consultant shall sell the shares on the
open market, and shall provide the Company with copies of brokerage statements
reflecting the sale of the Shares. The net sale proceeds after brokerage
commissions shall be applied as a credit against the Balance. In the event the
Balance is exceeded, the Consultant shall credit the Company for future legal
services.
3. The Consultant shall use the Consultant's best efforts to assist the Company
by providing the Consulting Services.
4. Consultant understand and agree that Consultant is not an employee of the
Company or any parent, subsidiary or affiliates of the Company and Consultant
covenants and agrees that Consultant will make no claim, contention or argument
that Consultant is or ever was an employee of the Company or any of its parent,
subsidiaries or affiliates.
5. The Consultant shall not be liable for any mistakes of fact, errors of
judgment, for losses sustained by the Company or any subsidiary or for any acts
or omissions of any kind, unless caused by the negligence or intentional
misconduct of the Consultant or any person or entity acting for or on behalf of
the Consultant.
6. The Company and its present and future subsidiaries jointly and severally
agree to indemnify and hold harmless the Consultant against any loss, claim,
damage or liability whatsoever, (including reasonable attorneys' fees and
expenses), to which Consultant may become subject as a result of performing any
act (or omitting to perform any act) contemplated to be performed by the
Consultant pursuant to this Agreement unless such loss, claim, damage or
liability arose out of Consultant's negligence, or intentional misconduct. The
Company and its subsidiaries agree to reimburse Consultant each for the
reasonable costs of defense of any action or investigation (including reasonable
attorney's fees and expenses); provided, however, that Consultant each agrees to
repay the Company or its subsidiaries if it is ultimately determined that
Consultant is not entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing, against Consultant, it
shall notify the Company within three (3) days after the Consultant receives
notice of such action, suit or threat. The Company shall have the right to
appoint the Company's counsel to defend such action, suit or proceeding,
provided that Consultant each consents to such representation by such counsel,
which consent shall not be unreasonably withheld. In the event any counsel
appointed by the Company shall not be acceptable to Consultant, then the Company
shall have the right to appoint alternative counsel for Consultant reasonably
acceptable to Consultant until such time as acceptable counsel can be appointed.
In any event, the Company shall, at its sole cost and expense, be entitled to
appoint counsel to appear and participate as co-counsel in the defense thereof.
Consultant, or his co-counsel, shall promptly supply the Company's counsel with
copies of all documents, pleadings and notices which are filed, served or
submitted in any of the aforementioned. Consultant shall not enter into any
settlement without the prior written consent of the Company, which consent shall
not be unreasonably withheld.
7. This Agreement shall be binding upon the Company and the Consultant and their
successors and assigns.
8. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (ii) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held, invalid illegal or unenforceable.
9. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both parties hereto. No waiver of any other
provisions hereof (whether or not similar) shall be binding unless executed in
writing by both parties hereto nor shall such waiver constitute a continuing
waiver.
10. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which shall
constitute one and the same Agreement.
11. The Parties agree that should any dispute arise in the administration of
this Agreement, that this Agreement shall be governed and construed by the laws
of the State of Florida, without regard to conflicts of laws of any other
jurisdiction. The Parties further agree that any action arising out of this
agreement shall be brought exclusively in an appropriate court of Florida having
jurisdiction.
12. This Agreement contains the entire agreement between the parties with
respect to the consulting services to be provided to the Company by the
Consultant and supersedes any and all prior understandings, agreements or
correspondence between the parties.
IN WITNESS WHEREOF, the Company and the Consultant have caused this Agreement to
be signed by duly authorized representatives as of the day and year first above
written.
BEVSYSTEMS INTERNATIONAL, INC. CONSULTANT:
JONATHAN J. ELLIS, ESQUIRE
BY: /s/ Robert Tatum BY: /s/ Jonathan J. Ellis
------------------------------ -----------------------------
Robert Tatum, President Jonathan J. Ellis
and CEO