EXHIBIT 4.2
CONSULTING AGREEMENT BETWEEN YOU BET INTERNATIONAL INC. and Xxxxxxx Xxxxxx
Kingston.
CONSULTING AGREEMENT, dated as of May 9th 1997, between You Bet International
Inc. a Corporation established and existing under the laws of Delaware, with
its principal place of business at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, X.X.X. and Xxxxxxx Xxxxxx Kingston domiciled at
X.x. Xxxxxx 1535, Xxxxx 0 # X, Xxxxxx Xxxxx, Xxxxxxxxx.
RECITALS.
WHEREAS You Bet International Inc. desires to continue to use the services of
Xxxxxxx Xxxxxx Kingston as Corporate Consultant.
AND
Xxxxxx Xxxxxx Kingston desires to continue providing such services upon the
terms and conditions hereof.
AGREEMENT
1/ RETENTION
YOU BET INTERNATIONAL INC.(YBI Inc.), hereby retains Xxxxxxx Xxxxxx Kingston
for a primary period of 12 months, commencing on May 9th 1997 as Corporate
Consultant on a non exclusive basis. This Agreement may be terminated after
six months from commencement date by either party upon receipt of written
notice. Notice of termination may only be given during or after the sixth
month of performance and must provide for no less than 60 days notice. This
contract will automatically renew for a successive twelve (12) months under
the same terms and conditions if no notice of termination is received by
either party at least 60 days prior to the expiration of the primary period.
2/ SCOPE OF SERVICES
During the term of this Agreement, Xxxxxxx Xxxxxx Kingston, as independent
consultant, shall provide YBI Inc., on a best effort basis advise relating to:
- Re-definition of Corporate Objectives.
- Corporate Strategy Formulation
- Organization re-design and corporate re-structuring
3/ COMPENSATION
It is hereby agreed that the following fee structure will apply for
professional services rendered by Xxxxxxx Xxxxxx Kingston to YBI Inc. on a
best efforts performance.
Options to purchase the company's common stock shall be granted to Xxxxxxx
Xxxxxx Kingston.
10,000 S8 options will be issued to Xxxxxx Xxxxxx Kingston in lieu of fees
under this agreement as a signing bonus. Additionally, 3,500 S8 options will
be issued to Xxxxxxx Xxxxxx Kingston for each month of service in lieu of
fees under this agreement. Said options will be issued at a strike price not
greater that a) $2.50 (two dollars and fifty cents), and b) UBET close of
market quote as at 9th May 1997.
Each option may be exercised from the date of this agreement until close of
market on the date that is 3 years after the date of this agreement
("expiration date"). Should the expiration date fall on a Saturday, Sunday or
Bank Holiday the expiration date shall be the next available trading date.
Each Option not exercised on or before the Expiration Date shall expire.
These options are callable if and when the common stock trades at or above
$10.00 for 20 consecutive days. Upon being called by YBI Inc. Xxxxxxx Xxxxxx
Kingston will be allowed a period of not more than 45 calendar days to
exercise said options.
Securities Subject to Option:
Subject to the provisions of this Agreement, the holder of each Option shall
have the right to purchase from YBI Inc., and YBI Inc. shall issue and sell
to each such holder, one fully paid and non-assessable share of common stock of
YBI Inc. (the "Common Stock"), Shares underlying the Options will be free
trading and will be registered by the YBI Inc.
Adjustments to Options. The Exercise Price and the number of shares of Common
Stock and classes of Capital Stock of YBI Inc. purchasable upon the exercise
of each Option are subject to adjustment from time to time as follows.
a) If YBI Inc. (I) pays a dividend or makes a distribution on its Common
Stock, in each case, in shares of its Common Stock; (II) subdivides its
outstanding shares of Common Stock into a greater number of shares; combines
its outstanding shares of Common Stock into a smaller number of Shares (IV)
makes a distribution of its Common Stock in shares of its capital stock other
than Common Stock or (V) issues by reclassification of its shares of Common
Stock any shares of its capital stock; then the number of shares purchasable
upon exercise of each Option in effect prior to such action shall be adjusted
so that the holder of any Option thereafter exercised may receive the number
and classes of shares of capital stock of YBI Inc. which such holder would
have owned immediately following such action if such holder had exercised the
Option immediately prior to such action.
b) If YBI Inc. is a party to a consolidation, merger or transfer of assets
which reclassifies or changes its outstanding Common Stock, the successor
corporation (or corporation controlling the successor corporation or YBI Inc.,
as the case may be) shall by operation of law assume the Client's obligations
under this agreement.
Upon consummation of such transaction the Options shall automatically become
exercisable for the kind and amount of securities, cash or other assets which
the holder of an Option would have owned immediately after the consolidation,
merger or transfer if the holder had exercised the Option immediately before
the effective date of such transaction. As a condition to the consummation of
such transaction, YBI Inc. shall arrange for the person or entity obligated
to issue securities, cash or other assets upon exercise of the Option to
concurrently with the consummation of such transaction, assume YBI Inc.'s
obligations hereunder by executing an instrument so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustment provided herein.
4/ CONFIDENTIALITY
Unless expressly authorised in writing, the parties agree not to divulge any
non public information provided under this agreement, including without
limitation, the parties methods of operation, existing or potential business
plans and names of its customers and employees.
5/ INDEMNIFICATION
The Company hereby agrees to indemnify, defend and hold harmless Xxxxxxx Xxxxxx
Kingston (the "Indemnified Party"), from and against any losses, claims,
damages or liabilities (or actions, including shareholder actions, in respect
thereof) incurred as a result of claims asserted by third parties related to
or arising out of the engagement of Xxxxxxx Xxxxxx Kingston by the Company
pursuant to the terms hereof or in connection herewith, and will reimburse
each Indemnified Party for all expenses as they are incurred (including
expenses connected with investigating, preparing or defending any such action
or claim), whether or not in connection with pending or threatened litigation
in which any indemnified Party is a party. The Company will not, however, be
responsible for any claims, liabilities, losses, damages or expenses which
have resulted from Xxxxxxx Xxxxxx Kingston's gross negligence or willful
misconduct.
The foregoing indemnification shall be in addition to any rights that Xxxxxxx
Xxxxxx Kingston or any other Indemnified Party may have in accordance with
applicable law, and shall include, but in no way shall be limited to, any
right to contribution.
The Company, hereby consents to personal jurisdiction, service of process and
venue in any court in which any claim subject to this indemnification
provision is brought against Xxxxxxx Xxxxxx Kingston or any other Indemnified
Party, and not with respect to any other claims that may be made against the
Company. The obligation to indemnify the Indemnified Parties pursuant to the
terms of this paragraph shall survive and remain in full force and effect
following the completion of any transaction contemplated herein or the
expiration or termination of this Agreement.
6/ ASSIGNMENTS
The Agreement is binding upon and shall inure to the benefit of the parties
to this Agreement and respective successors and assigns. Neither party shall
assign or transfer any rights or obligations under this Agreement without the
express written consent of the other party.
7/ WAIVER, MODIFICATION OR AMENDMENT
No waiver of any provision of this Agreement or modification or amendment of
this Agreement shall be effective, binding or enforceable unless in writing
and signed by authorised representatives of both parties.
8/ NOTICES
All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be delivered personally, sent by commercial
carrier, registered mail or transmitted by facsimile. These notices shall be
addressed to the parties at the addresses set out above or as either party
shall designate in writing to the other. The communications herein shall be
deemed to be given or made when so delivered, personally or by commercial
carrier, or when transmitted by facsimile (transmission report OK), or if
mailed five days after the date of mailing.
9/ GOVERNING LAW
This agreement shall be governed by the internal laws of California. Any
dispute arising out of this agreement shall be adjudicated in the courts of
the California and Xxxxxxx Xxxxxx Kingston hereby agrees that service of
process upon it by registered mail at the address shown in this agreement
shall be deemed adequate and lawful.
10/ DUE AUTHORITY
The YBI Inc. and Xxxxxxx Xxxxxx Kingston each represents to the other that
it has due authority to enter into this agreement and that the officer or
managing director, as the case may be, executing this agreement has full
authority to do so.
11/ MISCELLANEOUS
This Agreement may be executed in two or more counterparts, all of which
together shall be considered a single instrument. YBI Inc. confirms that it
will rely on its own counsel, accountants, and other similar expert advisors
for legal, accounting tax and other similar expert advice. This Agreement
constitutes the the entire agreement among the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understanding, both oral and written, between the parties hereto with respect
to the subject matter hereof and cannot be amended or otherwise modified except
in writing by the parties.
12/ HEADINGS
The paragraph headings in this Agreement have been inserted as a matter of
convenience of reference and are not part of this Agreement.
13/ ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and representations (oral
or written) between the parties concerning the matter hereof, and supersedes
all prior agreements, arrangements and understandings, written or oral,
relating to the matter hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
day and year first above written.
For and on Behalf of )
You Bet International Inc. )
Xxxxx Xxxxxxxx ) /s/ Xxxxx Xxxxxxxx
Chairman )
For and on Behalf of )
Xxxxxxx Xxxxxx Kingston ) /s/ Xxxxxxx Xxxxxx Kingston
AMENDMENT AND EXTENSION OF SCOPE TO CONSULTING AGREEMENT BETWEEN
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YOU BET INTERNATIONAL INC. AND XXXXXXX XXXXXX KINGSTON
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AMENDMENTS: The following clauses are hereby amended as follows:
1/ RETENTION:
You Bet International Inc. (YBI Inc.), hereby retains Xxxxxxx Xxxxxx Kingston
as Corporate Consultant on a non exclusive basis for a primary period of 24
months Commencing on May 9, 1997 and terminating on May 8, 1999.
3/ COMPENSATION:
Strike price of Options:
The parties hereby agree a strike price of $2.50 (two dollars and fifty
cents) for the S8 options under this agreement.
Where it reads:
"Each option may be exercised from the date of this agreement until close of
market on the date that is 3 years after the date of this agreement
(expiration date)".
Will now read:
Each option may be exercised from the date of registration until close of
market on the date that is 3 years after the date of registration
(expiration date).
Where it reads:
"These options are callable if and when the common stock trades at or above
$10.00 for 20 consecutive day. Upon being called by YBI Inc. Xxxxxxx Xxxxxx
Kingston will be allowed a period of not more than 45 calendar days to exercise
said options",
Will now read:
The options shall be non callable by YBI Inc.
EXTENSION: The scope of services and compensation is extended as follows:
2/ SCOPE OF SERVICES.
Include the following aspects.
- International Development
- Corporate Representation.
- Market Research.
- Identification of potential Strategic Partners.
- Management of client inquiries.
3/ Compensation.
It is hereby agreed that the following fee structure for professional
services relating to the above activities.
Options to purchase common stock shall be granted in lieu fo fees
under this agreement.
* 100,000 S8 options will be issued in respect of work completed
through 12/31/97 in relation to the interrnational expansion of
YBI Inc. and the introduction of Strategic Partners for the
development of YBI Interactive Racing Network outside the US.
S8 options in relation to the above services will be issued at
a strike price of $ 3.00 (three dollars).
All other terms and conditions remain unchanged.
Agreed /s/ Xxxxx Xxxxxxxx
Dated: 12/12/97
For and on behalf of
You Bet International Inc.
Xxxxx Xxxxxxxx
Chairman
Dated: 12th/December/1997
For /s/ Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxx
