EXHIBIT 4.1 CONSULTING AGREEMENT BETWEEN
XXXXX XXXXXXXX AND
ZKID NETWORK, INC.
This Agreement, dated this 16th day of April, 2004 is between Zkid Network,
Inc, a Nevada Corporation, with its principal business address at 000 Xxxxxx
Xxxx # 000 Xxxxxxxxxx, XX 00000 (hereinafter the "Company") and Xxxxx Xxxxxxxx
with his principal mailing address at 0000 Xxxxxxxxxx Xxxxxx, #000, Xxxxxxxxxx,
XX 00000 (hereinafter "Consultant"), with regard to Consultant providing
consulting services to Company. This Agreement is intended to be a compliment to
(and is fully contingent upon) the closing of the Asset Purchase Agreement
between Zkid Network, Inc. and USURF America, Inc. dated on or about April 20,
2004 and expected to close on or about May 31, 2004 (the "USURF Closing Date").
In consideration of the mutual covenants contained herein and intending to
be legally bound hereby, the parties agree as follows:
I. EXPLANATION OF SERVICES
Consultant has extensive experience in business development and management
of the Internet security software for children (the "Product") recently acquired
by the Company. The Company hereby retains Consultant for a period of 365 days
henceforth to perform the following:
A. PRODUCT TECH TEAM MANAGEMENT: Consultant will pay tech team members for a
period of 90 days following the USURF Closing Date. Consultant will direct the
product tech team at the direction of the Company.
B. PRODUCT DEVELOPMENT: Provide direction to tech team in scoping Product
enhancements, upgrades and change requests.
C. BUSINESS DEVELOPMENT: Continue to source distribution opportunities for
the product and Licensing arrangements thereof. Such transactions shall be
compensated separately per the Master Distribution Agreement between Company
and Consultant.
II. COMPENSATION FOR SERVICES/REIMBURSEMENT FOR EXPENSES
A. COMPENSATION: For the services to be provided by Consultant as described
herein, Company agrees to the compensation terms set forth below:
(i) ENGAGEMENT FEE: In exchange for services rendered under Section I above,
Company will pay Consultant a total of two million six hundred seventy-five
thousand (2,675,000) shares of restricted (pursuant to SEC Rule 144) Company
common stock on or before the USURF Closing Date pursuant to the following
GUARANTEE: When such shares are eligible for registration pursuant to SEC Rule
144 (twelve months following their issuance - the "Registration Date"), Company
shall guarantee the market value of such shares to be worth at least $400,000 as
follows: If the 10-day weighted average closing prior to the Registration Date
is below $0.15 per share, Purchaser shall issue to Seller additional shares of
Company common stock (the "Guarantee Shares") such that the market value of the
Guarantee Shares AND the original shares issued equals $400,000. The Guarantee
Shares shall also be restricted pursuant to SEC Rule 144.
(ii) CONSULTING FEE: In exchange for services rendered under Section I above,
Company will compensate Consultant by issuing to Consultant (on or before the
USURF Closing Date):
a. One Million (1,000,000) shares of unrestricted, freely tradable Company
common stock.
b. A warrant agreement (the "Warrant") representing the option/right to
purchase a total of two million (2,000,000) shares of unrestricted, freely
tradable Company common stock at $0.05 per share. Such Warrant shall not vest
until 90 days following the USURF Closing Date upon which date it will vest 100%
(the "Vesting Date"). The term of the Warrant shall be one year, expiring one
calendar year following the Vesting Date.
c . If the closing bid price of the Company common stock falls below $0.09
per share for more than 5 consecutive trading days, Company agrees to reasonably
renegotiate the terms of this Agreement in good faith such that the Value of
compensation paid to Consultant is maintained.
III. WARRANTIES
A. Consultant and Company hereby warrant that each party has the right, power,
legal capacity and authority to enter into and execute this Agreement. The
parties warrant that they have the right, power, legal capacity and authority to
perform their obligations as contained in this Agreement.
B. The parties warrant that none of the services or benefits provided to each
other in conjunction with or under this Agreement shall violate the rights of
any third party, and that the parties shall take all measures necessary to
obtain the appropriate rights, permits, etc. to ensure the other party's full
enjoyment of the promises made and/or services provided under this Agreement.
IV. INDEMNITY
A. Company and Consultant mutually agree to indemnify, defend and hold each
other harmless from any and all claims, liabilities, losses, suits, damage
costs, expenses including but not limited to reasonable attorneys' fees and
costs, and damages suffered, incurred, arising out of, or related to the tech
team's performance, the Product's performance and the revenue it generates,
whether foreseen or unforeseen.
B. Each indemnifying party hereby indemnifies and holds the indemnified party
harmless for the breach of any of the indemnifying party's representations or
warranties contained in this Agreement.
V. JURISDICTION
This Agreement shall be construed in accordance with the laws of the State
of Colorado.
VI. FORCE MAJEURE
If Consultant fails to perform any obligation hereunder due to the
unavailability of services or materials, labor disputes, governmental
restrictions, extreme or intemperate weather and/or climate conditions, acts of
God, or any other circumstances beyond his control, such failure shall not be
deemed a breach of this Agreement, and if any time period for performance is
specified such period shall be deemed extended accordingly to cover such
unavailability.
VII. INDEPENDENT CONTRACTORS
The parties to this Agreement shall be independent contractors, and nothing
herein shall be deemed to make them joint venturers, partners, agent/principal
or otherwise.
VIII. ARBITRATION
Any claim or controversy arising out of or relating to this Agreement or
the parties' relationships in connection herewith shall be settled by
arbitration to be undertaken in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. There shall be three arbitrators, one
to be chosen directly by each party at will, and the third arbitrator to be
selected by the two arbitrators so chosen. Each party shall pay the fees of the
arbitrator he or it selects and of his or its own attorneys, the expenses of his
or its witnesses and all other expenses connected with presenting his or its
case. Other costs of the arbitration, including the cost of any record or
transcripts of the arbitration, administrative fees, the fee of the third
arbitrator, and all other fees and costs, shall be borne equally by the parties.
The decision of the arbitrators shall be written, and shall be final, binding
and non-appealable and may be enforced as a final judgment in any court of
competent jurisdiction.
INTENDING TO BE LEGALLY BOUND, the parties have caused this Agreement to be
executed by their duly authorized representatives on this 16th day of April,
2004.
COMPANY: CONSULTANT:
Zkid Network, Inc. Xxxxx Xxxxxxxx
000 Xxxxxx Xxxx # 000 0000 Xxxxxxxxxx Xx., #000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
/S/ Xxx Darmsadter /S/ Xxxxx Xxxxxxxx
Xxx Xxxxxxxxxxx Xxxxx Xxxxxxxx
CEO
