1
EXHIBIT 6.29
CONSULTING SERVICES AGREEMENT, DATED MARCH 24, 1997,
BY AND BETWEEN THE COMPANY AND XXXX XXXXX
2
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement") is entered
into as of March 24, 1997, between Sequester Holdings, Incorporated (formerly
known as KCD Holdings Incorporated) (the "Company") and Xxxx Xxxxx.
WHEREAS, the Company is engaged in marketing and distributing a
line of diet aid products, including (i) a dietary supplement called
"SeQuester(R) 1", (ii) an appetite suppressant called "SeQuester(R) 2", (iii) a
Chromium caplet which is a mineral necessary for proper carbohydrate metabolism
called "SeQuester(R) 3", and (iv) "PhytoQuest(TM)" which has the potential to
inhibit the gastrointestinal absorption of cholesterol (collectively, the
"Products"); and
WHEREAS, the Company desires to hire Xx. Xxxxx for ongoing
consulting and promotional services including radio and television commercials
endorsing the Products and Xx. Xxxxx desires to perform such services, in
accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements contained in this Agreement, the parties, intending to
be legally bound, hereby agree as follows:
16. Services. Xx. Xxxxx agrees to render the following consulting and
promotional services to the Company for a period of one year from
the date of this Agreement:
16.1 On an ongoing basis, Xx. Xxxxx shall consult with and advise the
Company concerning effective methods of promoting the Products.
Such advice will include ideas and recommendations as to the
content of the Company's television and radio advertising and other
promotional services.
16.2 Xx. Xxxxx shall render services to the Company as a performer in
four television commercials (the "Commercials") for the promotion
of the Products to be produced by Xxxx Xxxxx, Inc. (or any other
production company hired by the Company) during the term of this
Agreement. The Commercials shall be thirty to 120 seconds in
length, and shall air on cable, network or independent stations, or
direct response television e.g., QVC, HSN, Value Vision, or a
combination thereof, or any other medium, at the discretion of the
Company. Xx. Xxxxx agrees to appear in Los
3
Angeles, California (or such other location requested by the
Company) to tape the Commercials. The parties acknowledge that Xx.
Xxxxx has already performed in one of these Commercials.
16.3 Xx. Xxxxx agrees to make himself available for up to two hours each
week during the term of this Agreement at times convenient for Xx.
Xxxxx to promote the Products in radio and television interviews
(the "Interviews").
16.4 Xx. Xxxxx agrees to make up to six personal appearances during the
term of this Agreement at the Company's discretion at locations to
be mutually agreed by the parties (the "Personal Appearances").
16.5 Xx. Xxxxx agrees to permit access to a reasonable number of
individuals selected from time to time by the Company (i) to view
New Orleans Saints training camp sessions, upon appointments
previously scheduled by the Company, and (ii) to meet Xx. Xxxxx
after Saints games (only when the team has won).
17. Name, Likeness, Etc. Xx. Xxxxx hereby irrevocably grants in
perpetuity to the Company the right to use, and to permit others to
use, Xx. Xxxxx'x name, likeness and voice in connection with the
Commercials, Interviews, and Personal Appearances.
18. Ownership. The Company shall own all right, title and interest in
and to the Commercials. The Company shall have the irrevocable
right to use the Commercials in all media whether now known or
hereafter devised in perpetuity throughout the universe.
19. Manner of Performing Services. Xx. Xxxxx agrees to perform the
services required by this Agreement in a professional manner,
including cooperating with the taping and production session
personnel hired by the Company.
20. Compensation. In consideration for the services to be rendered
hereunder, Xx. Xxxxx shall be paid as follows:
20.1 $75,000 in cash, which sum has already been paid to Xx. Xxxxx.
20.2 1,000,000 shares of the Company's common stock (the "Shares"). The
Shares shall be subject to the following restrictions:
2
4
20.2.1. Xx. Xxxxx shall not sell, pledge, hypothecate or otherwise
transfer the Shares or any portion thereof for a period of
one year from the date of this Agreement without the
Company's prior written consent.
20.2.2. The Company shall have the right to redeem all or part of
the Shares at a price of $.0001 per Share if Xx. Xxxxx is
in material breach of the terms of this Agreement, which
breach remains uncured as determined by the Company in its
sole discretion for 15 days after delivery of written
notice thereof by the Company to Xx. Xxxxx. The Company's
foregoing right of redemption shall be in addition to any
other rights at law or in equity the Company may have to
otherwise enforce or seek damages under this Agreement.
20.2.3. The Shares shall include the following restrictive legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED
PURSUANT TO THE PROVISIONS OF SUCH ACT OR SUCH LAWS OR IF
AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
THE TERMS AND CONDITIONS OF A CONSULTING SERVICES
AGREEMENT BETWEEN THE STOCKHOLDER AND THE CORPORATION.
PURSUANT TO SUCH AGREEMENT, THE SHARES CANNOT BE
TRANSFERRED FOR A PERIOD OF ONE YEAR AFTER ISSUANCE
WITHOUT THE CORPORATION'S WRITTEN CONSENT AND THE
CORPORATION HAS THE RIGHT TO REDEEM THE SHARES IF THE
STOCKHOLDER FAILS TO PERFORM CERTAIN OBLIGATIONS UNDER THE
AGREEMENT. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
3
5
20.3 The Company will also reimburse Xx. Xxxxx for reasonable and
necessary expenses incurred by Xx. Xxxxx in connection with his
rendering of services under this Agreement, including travel, meals
and lodging, to the extent pre-approved by the Company and Xx.
Xxxxx provides reasonable written evidence of such expenses.
21. Shares
21.1 Xx. Xxxxx represents and warrants that he is acquiring the Shares
for investment for his own account, not as a nominee or agent, and
not with the view to, or for resale in connection with, any
distribution thereof. Xx. Xxxxx further understands that the
issuance and sale of the Shares to be acquired by him hereunder
have not been, and will not be, the subject of a registration
statement filed under the Securities Act of 1933, as amended (the
"Securities Act"), or qualified under applicable state securities
laws by reason of a specific exemption from the registration
provisions of the Securities Act and the qualification provisions
of such laws. Xx. Xxxxx understands that the Shares may not be
resold by him unless such sale is registered under the Securities
Act and qualified under applicable state laws or an exemption from
such registration or qualification is available and that the
certificates evidencing the Shares will contain a legend to such
effect unless, in the opinion of the Company, such a legend is not
required under applicable law.
21.2 Xx. Xxxxx represents and warrants that he is an accredited investor
within the meaning of Rule 501(a) of Regulation D promulgated under
the Securities Act and has substantial experience in evaluating and
investing in securities and has made or contemplated investments of
securities other than those of the Company. Xx. Xxxxx further
acknowledges that by reason of his business or financial
experience, he has the ability to bear the economic risk of his
investment in the Shares and understands that the Shares represents
a speculative investment and that there is substantial risk of
complete loss of his investment.
22. Representations and Warranties. Xx. Xxxxx represents and warrants
to the Company that he has the legal right, authority and capacity
to enter into this Agreement and to render the services described
herein, and that the delivery and execution of the Agreement will
not violate the terms of any other agreement to which Xx. Xxxxx is
a party. Xx. Xxxxx acknowledges that the Company is not a signatory
to any agreement with the American Federation of Telephone and
Radio Artists ("AFTRA") or with the Screen Actors Guild ("SAG") and
that the Company shall not be liable to AFTRA or SAG for executing
or performing this Agreement.
4
6
23. Arbitration. Any dispute arising out of this Agreement shall be
settled by arbitration by a single arbitrator in accordance with
the commercial arbitration rules of Judicial Arbitration and
Mediation Services, Inc. Arbitration shall be conducted in Los
Angeles, California. The parties agree that Los Angeles, California
is a reasonable and convenient place for any arbitration hereunder,
and agree to submit to the jurisdiction of the California courts
with respect to any judgment relating to this Agreement. Any
judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction. The arbitrator shall not have any
authority to award punitive or any other non-compensatory damages.
The decision of the arbitrator shall be binding upon the parties
and shall be reviewable only in the event of gross error of law.
Any party may pursue the remedy of specific performance of this
Agreement, or seek an injunction in the event of a breach of this
Agreement or in aid of exercising any power granted hereunder, or
any combination thereof, in any court having jurisdiction without
resort to arbitration.
24. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto
with respect to the subject matter hereof, including without
limitation any prior Television Commercial Agreement or Agreements
entered between the parties, and contains all of the covenants and
agreements between the parties with respect to such subject matter.
25. Assignment. Xx. Xxxxx shall not have the right to assign, transfer
or delegate this Agreement or any of his rights or obligations
hereunder without the prior written consent of the Company. The
Company may, without the approval of Xx. Xxxxx, transfer its rights
or obligations hereunder in connection with the sale of
substantially all of its business or the merger or consolidation of
the Company.
26. Notices. Any notice or other communication required or permitted to
be given hereunder will be in writing, and shall be deemed given
upon, (i) personal delivery, upon delivery, (ii) a nationally
recognized overnight courier service, the day after the deposit for
overnight delivery with such service, (iii) U.S. Mail, first class
postage-prepaid, three days after deposit or (iv) facsimile
transmission, upon electronic confirmation of receipt, addressed to
the parties as set forth below or to such other address as any
party may have furnished to the other in writing:
5
7
If to Company: Sequester Holdings, Incorporated
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
(Fax: 000-000-0000)
If to Xx. Xxxxx: Xxxx Xxxxx
--------------------
--------------------
--------------------
--------------------
(Fax:____________)
27. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in
accordance with the substantive laws of the State of California,
without giving effect to the principles of choice of laws or
conflicts of law.
28. Severability. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this
Agreement and the application of such provision to any other person
or circumstances will not be affected, and the provision so held to
be invalid, unenforceable or otherwise illegal will be reformed to
the extent (and only to the extent) necessary to make it
enforceable, valid or legal.
29. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by Xx. Xxxxx and the Company. No
waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or
6
8
provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The
section headings used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of
interpreting any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
"COMPANY"
Sequester Holdings, Incorporated
By: __________________________
Its: _______________________
"XX. XXXXX"
___________________________________
Xxxx Xxxxx
7
