EXHIBIT 4.2
CONSULTING AGREEMENT
1. PARTIES.
1.1. This Consulting Agreement (this "Agreement") is made and entered into
effective as of October 1, 2004, by and between Kingdom Ventures, Inc., a Nevada
corporation (the "Company"), and Xxxxxx x. Xxxxx, a natural person, (the
"Consultant") and resident of United States.
2. RECITALS.
2.1. This Agreement is made with reference to the following facts and
circumstances. (a) The Company wishes to engage the services of the Consultant
to advise and consult with the Company on certain business and financial matters
as set forth in this Agreement. (b) The Consultant is willing to accept such
engagement, on the terms set forth in this Agreement.
2.2. In consideration of the premises, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Consultant agree as follows.
3. ENGAGEMENT.
3.1. The Company hereby engages the services of the Consultant, as an
independent contractor, for a period of 270 Days beginning on the date hereof,
and ending 270 Days from and after the date hereof (the "Term"), and the
Consultant hereby accepts such engagement, for the purposes set forth in section
3.2. Below
3.2. The scope of the services to be rendered by the Consultant to the Company
are and are limited to the following:
Consultant Agrees to use best efforts in obtaining and placing $1,000,000.00
worth of Advertising Media within the 270 day time period.
(a) The Consultant shall, from time to time as the Company may request, advise
and consult with the Company's board of directors and executive officers
regarding (i) the Company's Marketing and Distribution strategies, including the
evaluation of targets and the structuring of transactions; (ii) the Company's
Vendor relations; and (iii) the Company's business development activities,
including major geographic and service expansion plans.
(b) The Consultant shall devote such time to this engagement as is reasonably
necessary, but the Consultant need not devote his full time or attention to the
engagement. The Company recognizes that the Consultant has numerous clients and
engagements, and that this engagement is not exclusive.
10
(c) The services need not be rendered at the Company's offices and may be
rendered by telephonic communication; provided, however, that upon the Company's
request and reasonable notice, the Consultant will attend meetings of the
Company's board of directors and executive officers for the purpose of advising
and consulting with them with respect to matters within the scope of this
engagement.
(d) Anything in this Agreement to the contrary notwithstanding, the services
rendered by the Consultant under this Agreement shall not include any services
in connection with the offer or sale of securities and will not directly or
indirectly promote or maintain a market for the Company's securities.
4. THE CONSULTANT'S FEES AND EXPENSES.
4.1. The Company shall pay the Consultant as a fee for his services under this
Agreement (the "Consulting Fee") warrants to purchase 1,500,000 shares of the
Company's common stock at $0.01 per share in the form attached hereto as Exhibit
A, which shall be deemed to be fully earned upon execution of this Agreement.
4.2. The Company shall cause the warrants to be issued to the Consultant, and
the stock issuable upon exercise thereof, to be registered under the Securities
Act of 1933, as amended, pursuant to an effective registration statement on form
S-8, or other appropriate form and the issuance of certificates representing the
warrants to the Consultant. The certificates representing the warrants shall not
contain any restrictive legends.
4.3. The warrants delivered to the Consultant for his services under this
Agreement shall include the Consultant's costs and expenses incurred in the
performance of this Agreement, including travel, lodging, meals and legal fees.
5. CONFIDENTIAL INFORMATION.
5.1. The parties hereto recognize that a major need of the Company is to
preserve its specialized knowledge, trade secrets, and confidential information.
The strength and good will of the Company is derived from the specialized
knowledge, trade secrets, and confidential information generated from experience
with the activities undertaken by the Company and its subsidiaries. The
disclosure of this information and knowledge to competitors would be beneficial
to them and detrimental to the Company, as would the disclosure of information
about the marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and its
subsidiaries. By reason of his being a Consultant to the Company, Consultant has
or will have access to, and will obtain, specialized knowledge, trade secrets
and confidential information about the Company's operations and the operations
of its subsidiaries, which operations extend through the United States.
Therefore, Consultant recognizes that the Company is relying on these agreements
in entering into this Agreement.
5.2 During and after the Term, Consultant will not use, disclose to others, or
publish any inventions or any confidential business information about the
affairs of the Company, including but not limited to confidential information
concerning the Company's products, methods, engineering designs and standards,
analytical techniques, technical information, customer information, employee
information, and other confidential information acquired by him in the course of
his past or future services for the Company. Consultant agrees to hold as the
Company's property all memoranda, books, papers, letters, formulas and other
data, and all copies thereof and therefrom, in any way relating to the Company's
business and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of the Company,
at any time, to deliver the same to the Company within twenty four hours of such
termination or demand.
11
5.3 During the Term Consultant will not induce any employee of the Company to
leave the Company's employ or hire any such employee (unless the Board of
Directors of the Company shall have authorized such employment and the Company
shall have consented thereto in writing).
6. ARBITRATION OF DISPUTES, LITIGATION EXPENSES.
6.1. Any controversy or claim arising out of or relating to any acts or
omissions of either party hereto or any of the Company's officers, directors,
agents, affiliates, associates, employees or controlling persons shall be
settled by binding arbitration under the Federal Arbitration Act in accordance
with the commercial arbitration rules of the American Arbitration Association
("AAA") and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. In such arbitration proceedings, the
parties shall be entitled to any and all remedies that would be available in the
absence of this Section and the arbitrators, in rendering their decision, shall
follow the substantive laws that would otherwise be applicable. The parties
acknowledge that the subject matter of this Agreement is of unique value to
Consultant and agree that Consultant shall have the right to specific
enforcement of this Agreement. The arbitration of any dispute pursuant to this
Section shall be held in Houston, Texas. Notwithstanding the foregoing in order
to preserve the status quo pending the resolution by arbitration of a claim
seeking relief of an injunctive or equitable nature, any party, upon submitting
a matter to arbitration as required by this Section, may simultaneously or
thereafter seek a temporary restraining order or preliminary injunction from a
court of competent jurisdiction pending the outcome of the arbitration.
6.2. In the event of any litigation or other proceeding between the Company and
the Consultant with respect to the subject matter of this Agreement and the
enforcement of the rights hereunder, the losing party shall reimburse the
prevailing party for all of his/its reasonable costs and expenses, as well as
any forum fees, relating to such litigation or other proceeding, including,
without limitation, his/its reasonable attorneys' fees and expenses, provided
that such litigation or proceeding results in a (a) final settlement requiring
payment to the prevailing party; or (b) final judgment.
7. MISCELLANEOUS.
7.1. Relationship. The relationship between the Company and the Consultant
created by this Agreement is that of independent contractors. Consultant
understands and agrees that (i) Consultant will not be treated as an employee of
the Company for federal tax purposes; (ii) Company will not withhold on behalf
of Consultant pursuant to this Agreement any sums for income tax, unemployment
insurance, social security, or any other withholding pursuant to any law or
requirement of any governmental body relating to Consultant; (iii) all of such
payments, withholdings, and benefits, if any, are the sole responsibility of
Consultant; and (iv) Consultant will indemnify and hold Company harmless from
any and all loss or liability arising with respect to such payments,
withholdings, and benefits, if any. In the event the Internal Revenue Service or
any other governmental agency should question or challenge the independent
contractor status of Consultant, the parties agree that Consultant and Company
shall have the right to participate in any discussion or negotiation occurring
with such agency or agencies, irrespective of who initiates the discussion or
negotiations. The services to be rendered by the Consultant pursuant to this
Agreement do not include the services or activities of an "investment adviser,"
as that term is defined by U.S. federal or state laws and, in performing
services under this Agreement, the Consultant shall not be deemed to be an
investment adviser under such laws.
12
7.2. Indemnity. The Company hereby agrees to defend, indemnify, and hold the
Consultant, and his employees, agents, partners and affiliates harmless from and
against any and all claims, damages, judgments, penalties, costs, and expenses
(including attorney fees and court costs now or hereafter arising from the
enforcement of this clause) arising directly or indirectly from the activities
of the Consultant or any of his employees, agents, partners or affiliates under
this Agreement, or from the activities of the Company or any of its
shareholders, officers, directors, employees, agents, partners or affiliates,
whether such claims are asserted by any governmental agency or any other person.
This indemnity shall survive termination of this Agreement.
7.3. Advertisement. The Company agrees that the Consultant has the right to
place advertisements in financial and other newspapers and journals at his own
expense describing his services to the Company.
7.4. Notices. Any notice or other communication required or permitted to be
given shall be in writing and shall be mailed by certified mail, return receipt
requested (or by the most nearly comparable method if mailed from or to a
location outside of the United States), or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section). Any
notice given to any corporate party shall be addressed to the attention of the
Corporation Secretary. Any notice of other communication given by certified mail
(or by such comparable method) shall be deemed given at the time of
certification thereof (or comparable act), except for a notice changing a
party's address which will be deemed given at the time of receipt thereof.
7.5. Survival of Obligations. The obligations of the parties under Sections 6,
7.1 and 7.2 of this Agreement shall survive the termination for any reason of
this Agreement (whether such termination is by the Company, by the Consultant,
upon the expiration of this Agreement or otherwise).
7.6. Severability. In case any one or more of the provisions or part of the
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect any
other jurisdiction or any other provision or part of a provision of this
Agreement, but this Agreement shall be reformed and construed in such
jurisdiction as if such provision or part of a provision held to be invalid or
illegal or unenforceable had never been contained herein and such provision or
part reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible. In furtherance and not in
limitation of the foregoing, the Company and Consultant each intend that the
covenants contained in Section 5 shall be deemed to be a series of separate
covenants, one for each and every other state, territory or jurisdiction of the
United States. If, in any judicial proceeding, a court shall refuse to enforce
any of such separate covenants, then such covenants shall be deemed eliminated
from the provisions hereof for the purpose of such proceedings to the extent
necessary to permit the remaining separate covenants to be enforced in such
proceedings. If, in any judicial proceeding, a court shall refuse to enforce any
one or more of such separate covenants because the total time thereof is deemed
to be excessive or unreasonable, then it is the intent of the parties hereto
that such covenants, which would otherwise be unenforceable due to such
excessive or unreasonable period of time, be enforced for such lesser period of
time as shall be deemed reasonable and not excessive by such court.
13
7.7. Entire Agreement, Amendment. This Agreement contains the entire agreement
between the Company and the Consultant with respect to the subject matter
thereof. Consultant acknowledges that he neither holds any right, warrant or
option to acquire securities of the company, nor has the right to any such
rights, warrants or options, except pursuant to this Agreement. This Agreement
may not be amended, waived, changed, modified or discharged except by an
instrument in writing executed by or on behalf of the party against whom any
amendment, waiver, change, modification or discharge is sought.
7.8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada; provided, however, if any
provision of this Agreement is unenforceable under Nevada law, but is
enforceable under the laws of the State of Nevada, then Nevada shall govern the
construction and enforcement of that provision. The courts of the State of
Nevada shall have exclusive jurisdiction for any action arising out of or
related to this Agreement.
7.9 Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original and together will constitute one and
the same Agreement, with one counterpart being delivered to each party hereto
and the original being may a part of the corporate records.
[signatures on following page]
14
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of
the date first above written.
The Consultant:
---------------------------------
Xxxxxx x. Xxxxx
Date signed __________________________
The Company:
Kingdom Ventures, Inc.
By _________________________________
Printed Name:
Title:
Date signed __________________________
15
Exhibit A - Page 1
EXHIBIT A
FORM OF WARRANT CERTIFICATE
Number _____ _____________ Warrants
EXERCISABLE FROM 9:00 A.M., NEVADA TIME,
ON OCTOBER 12, 2004 UNTIL
5:00 P.M., NEVADA TIME, JUNE 1ST 2005 CUSIP _____________
KINGDOM VENTURES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
--------------------------------------------------------------------------------
This certifies that
is the owner of
--------------------------------------------------------------------------------
WARRANTS, EACH TO PURCHASE ONE FULLY PAID AND NON-ASSESSABLE SHARE
OF COMMON STOCK, $.001 PAR VALUE, OF
Kingdom Ventures, Inc. at the initial Exercise Price of $0.01 per share. Payment
of the Purchase Price shall be paid in the manner, at the time and on the terms
and conditions specified in this Warrant and the Warrant Agreement. The
certificate or certificate shall be registered in the name specified in the
notice of exercise free and clear of any legend, restriction or stop order. This
Warrant is transferable on the books of the Company by the holder hereof in
person or by duly authorized attorney upon surrender of this certificate
properly endorsed.
Witness the manual or facsimile signatures of the Company's duly authorized
officers, countersigned by the Warrant Agent.
Dated: ________________________
[SEAL]
_____________________________ ________________________________
__________________, Secretary _______________, President & CEO
Exhibit A - Page 1
16
Exhibit B - Page 1
ASSIGNMENT
FOR VALUE RECEIVED the undersigned Registered Holder of the within Warrant
hereby sells, assigns, and transfers unto the Assignee(s) named below (including
the undersigned with respect to any part of the Warrant not being assigned
hereby) all of the right of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock set forth below:
SOCIAL SECURITY OR NUMBER OF SHARES OF
OTHER IDENTIFYING COMMON STOCK
NAME OF ASSIGNEE ADDRESS OF ASSIGNEE NUMBER OF ASSIGNEE ASSIGNED TO ASSIGNEE
-------------------------------- --------------------------------------- --------------------- ---------------------
-------------------------------- --------------------------------------- --------------------- ---------------------
-------------------------------- --------------------------------------- --------------------- ---------------------
and does hereby irrevocably constitute and appoint ______________________ as the
undersigned's attorney to make such transfer on the books of the Warrant Agent
and maintained for that purpose, with full power of substitution in the
premises.
Date: ______________, 20___
-----------------------------------
(Signature of Registered Holder)1
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
NOTICE OF EXERCISE
To: Kingdom Ventures, Inc.
The undersigned irrevocably exercises this Warrant for the purchase of
____________ shares (subject to adjustment) of Common Stock of Kingdom Ventures,
Inc. (the "Company"): for this Warrant and agrees to make payment of
$____________________ (the "Purchase Price") in the manner specified in the
Warrant Agreement, all at the Exercise Price and on the terms and conditions
specified in this Warrant and the Warrant Agreement, and requests that a
certificate for such Shares be registered in the name of
_______________________________ whose address is _____________________________,
and that such certificate be delivered to ___________________, whose address is
___________________ _______________.
If said number of Shares is less than all of the Shares purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of the Shares be registered in the name of
___________________, whose address is _____________________ ____________ and
that such Certificate be delivered to ______________, whose address is
______________________________.
Date: ________________, 20___
--------------------------------------------
(Signature of Registered Holder)1
--------------------------------------------
(Street Address)
--------------------------------------------
(City) (State or Province) (Zip Code)
--------
1 The signature must correspond with the name as written upon the face of
the within Warrant in every particular, without alteration or enlargement
or
17
