Exhibit 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") entered into as of April 17, 2003
by and between Napoli Enterprise, Inc., a Colorado corporation (hereinafter
referred to as the "Company") and Veasti Ciumac (hereinafter referred to as the
"Consultant").
WITNESSETH
WHEREAS, the Company is in the business of making and selling premium
quality wine (the "Business");
WHEREAS, the Company recognizes the unique qualifications of the
Consultant and desires to secure the consulting services of the Consultant on
the terms and conditions set forth herein; and
WHEREAS, the Consultant has agreed to provide such services on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the Company and the Consultant do
hereby agree as follows:
1. SCOPE OF SERVICES AND RELATIONSHIP BETWEEN PARTIES
1.1 Subject to the terms and conditions hereof, the Company hereby
retains the Consultant to render consulting services (the
"Services") to the Company as and when requested by the Company in
connection with: (a) serving as the Company's representative in the
North American wine market; (b) establishing and developing the
business presence of the Company in the North American wine market;
and (c) coordinating corporate compliance with all applicable
statutes; (d) recruiting a team of experts to assist the Company is
establishing a presence in North America.
1.2 The Consultant hereby agrees to faithfully perform the Services as
and when requested by the Company.
1.3 The Consultant agrees that he is an independent contractor and is
not an agent or an employee of the Company or a partner or joint
venturer with the Company. The Consultant shall not be entitled to
any benefits from the Company and the Company shall not withhold any
amounts for taxes from payments made to the Consultant. The
Consultant shall be responsible for the filing of all forms and the
payment of all taxes in connection with amounts paid to him by the
Company and shall indemnify the Company and hold the Company
harmless with respect to the payment of all such taxes.
2. TERM
This Agreement shall continue for one year from the effective date hereof with
no automatic renewal.
3. FEES AND EXPENSES
3.1 Fees. No later than four months after the date hereof, the Company
will issue to the Consultant a fee of 2,000,000 shares of the common
stock of the Company. The shares will issued for services
performance. The shares when issued to the Consultant will be
fully-paid and non-assessable.
3.2 Reimbursement of Expenses. The Company shall promptly pay or
reimburse the Consultant for all reasonable expenses actually and
properly incurred or paid by him in connection with the performance
of his Services under this Agreement (including, without limitation,
travel expenses) upon presentation of expense statements or vouchers
or such other supporting documentation in such form and containing
such information as the Company may from time to time require.
4. COVENANTS
(a) The Consultant covenants agrees that he will not disclose,
cause to be disclosed or otherwise allow Confidential
Information (defined below) of the Company to come into the
possession of any person or entity (other than those persons
and entities that the Company has determined as being entitled
thereto). For purposes of this Agreement, "Confidential
Information" shall include confidential, proprietary, or trade
secret information (including, without limitation, all
information which the Company has sought to protect from
disclosure or that the law protects from disclosure) available
to the Consultant or of which the Consultant becomes aware
during the term of this Agreement relating in any fashion to
the Company, including, but not limited to, information
relating to the Business and the Company's systems,
operations, finances, investments, transactions, negotiations,
claims, potential claims, sales, marketing, plans, pricing,
customers, policies, practices, procedures, ownership,
employees, and management, as well as the Company's software
(in any stage of development), programs (whether or not in
final form), ideas, inventions, concepts, formulas, methods,
development, research, designs, drawings, schematics,
specifications, techniques, models, data, source code, object
code, flow diagrams, and documentation. The description of
"Confidential Information" is intended to be construed in its
broadest possible meaning, and includes all such information
in any and all forms, whether written, oral, on a computer,
tape, chip, or a disk, whether prepared by the Consultant, by
the Company, or by others, whether or not fixed in tangible
form, and includes all originals, summaries, portions, and
copies of any and all such information.
2
(b) Notwithstanding anything in this Agreement (including, without
limitation, Section 4.1(a)) to the contrary, the Consultant
may disclose Confidential Information in the following
circumstances:
(i) where necessary for the Consultant to faithfully perform
the Services. In the event the Consultant is unsure as
to whether this exception applies, the Consultant agrees
to confer with the President of the Company and not to
make or permit any such disclosure unless or until the
President of the Company determines that this exception
applies;
(ii) where such information is known in the industry, except
if such knowledge results from a breach of this
Agreement or another obligation of confidentiality owed
to the Company;
(iii) where the Consultant has the express, prior written
permission of the of the Company;
(iv) where necessary to comply with any legal obligation
applicable to the Consultant; provided however, that
before disclosing or permitting disclosure of any
Confidential Information pursuant to a legal obligation,
the Consultant agrees to (a) immediately notify the
Company of the legal obligation that the Consultant
believes requires that he make or permit such
disclosure, and (b) diligently and lawfully, with
reasonable prudence, attempt to wait before making such
disclosure to afford the Company the opportunity to
oppose disclosure, or to obtain assurances that the
information disclosed will be either formally designated
or ordered by a court or governmental body as
confidential, or will be otherwise protected from
further disclosure. In the event the Consultant receives
a request for Confidential Information or believes he is
obligated to make or permit disclosure by virtue of any
legal obligation applicable to the Consultant, the
Company will provide the Consultant with legal counsel
reasonably satisfactory to the Consultant to assist in
fulfilling his obligations and protecting the
confidentiality of the Company's Confidential
Information.
(c) It is agreed that the Company has the right, exercisable at
any time in its sole discretion, to apply and/or seek
enforcement of any of the provisions of this Section 4 for a
lesser period of time and/or to a lesser extent or scope than
provided herein. If the Consultant feels that any of the
provisions of this Section 4 are unreasonable when applied to
the Consultant or any of the Consultant's proposed or
anticipated actions in the future, the Consultant may ask for
an exception to such provisions or a limitation or reduction
in the application, time, extent, or scope of the provisions
by sending a letter to the Company. All such requests will be
given good faith consideration by the Company. In the event of
a
3
violation of Section 4.1 of this Agreement, the Company shall
be entitled to seek injunctive relief in addition to damages
and other remedies for the violation.
5. MISCELLANEOUS
5.1 This Agreement expresses the entire understanding and agreement of the
parties and supersedes any and all prior agreements and understandings,
whether written or oral, relating in any way to the subject matter of this
Agreement. This Agreement cannot be modified, amended or supplemented
except by a written instrument or instruments executed by each of the
parties hereto.
5.2 All rights and remedies herein granted or referred to are cumulative,
resort to one shall not preclude resort to another. No waiver by either
party of a breach of this Agreement, or any part hereof, shall be deemed
to be a waiver of any other prior, concurrent or subsequent breach of the
same or different provisions of this Agreement.
5.3 This Agreement shall be governed by and construed under the laws of
the State of New York. If any provision of this Agreement shall be found
by a court of competent jurisdiction to be unreasonable, invalid or
unenforceable, as written, the Consultant and the Company hereby
specifically and irrevocably authorize and request said court to revise
the unenforceable, unreasonable or invalid provisions in a manner which
shall result in the provisions being enforceable while remaining as
similar as legally possible to the purpose and intent of the original
provisions.
5.4 In any action, proceeding or arbitration arising out of this
Agreement, the prevailing party shall be entitled to request and receive
an amount as and for the reasonable counsel fees and expenses incurred by
the prevailing party in connection with such action, proceeding or
arbitration.
5.5 Any notice, demand, request, amendment, waiver or other communication
under this Agreement shall be in writing and shall be deemed to have been
duly given (i) on the date of delivery if delivered to the address of the
party specified below (including delivery by courier), or (ii) on the
fifth day after mailing if mailed to the party to whom notice is to be
given to the address specified below, by first class mail, certified or
registered, return receipt requested, postage prepaid, or (iii) on the
date of transmission if sent by facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission, as follows:
4
If to the Company : 35, Vlaicu Pircalab str.
Chisinau, Rep. of Moldova
with a copy to: Davies Ward Phillips & Vineberg LLP
625 Madison Avenue
New York, New York 10022
Attn: Howard H. Jiang, Esq.
Facsimile: (212) 308-0132
If to Consultant: 2645 Cropsey Aveneue
Brooklyn, NY 11214
with a copy to: Davies Ward Phillips & Vineberg LLP
625 Madison Avenue
New York, New York 10022
Attn: Howard H. Jiang, Esq.
Facsimile: (212) 308-0132
Any party may from time to time change its address or facsimile
number for the purpose of notices to that party by a similar notice
specifying a new address or facsimile number, but no such change
shall be deemed to have been given until it is actually received by
the party sought to be charged with its contents.
5.6 Neither party may assign its rights or obligations under this
Agreement to any other person or entity without the express written
consent of the other party.
5.7 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Consultant, intending to be
legally bound, have executed this Agreement as of the day and year first above
written.
NAPOLI ENTERPRISES, INC.
- ------------------------------- -------------------------------------
Veasti Ciumac Greg Sonic
President
5
July 21, 2002
Napoli Enterprises, Inc.
35, Vlaicu Pircalab str.
Chisinau, Rep. of Moldova
Ladies and Gentlemen:
We have acted as counsel to Napoli Enterprises, Inc. (the "Corporation")
in connection with the filing with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (the "Registration Statement") with respect
to an aggregate of 2,000,000 Common Shares of the Corporation to be issued in
connection with that certain Consulting Agreement between the Corporation and
Veasti Ciumac.
We have examined the articles and bylaws of the Corporation and such other
corporate records and proceedings and other materials as we have deemed
appropriate and necessary to enable us to give the opinion hereinafter
expressed.
In expressing the opinion set forth below, we assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies
thereof and the authenticity of the originals of such documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly created and when issued pursuant to the terms of the
Consulting Agreement, will be validly issued and outstanding as fully paid and
non-assessable shares.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement.
Yours truly,
/s/ Davies Ward Phillips & Vineberg LLP
---------------------------------------
Davies Ward Phillips & Vineberg LLP
BEIJING O HONG KONG O MONTREAL O PARIS O SINGAPORE O TORONTO O VANCOUVER