Exhibit 4.1 Advisory and Consulting Agreement
Number of Shares and Options
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4.1(a) as amended 11,150,000
4.1(b) 850,000
6
Exhibit 4.1(a)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of March 5,
2001 by and between Xxxxxxx Xxxxx 000 X. Xxxxxxx Xxxxxx, #000, Xxx Xxxxxxx, XX
00000 ("Consultant") and Kaire Holdings Incorporated with offices at 0000
Xxxxxxxx Xxx, Xxxxx Xxxxxxxxx, XX 00000 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
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The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
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The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on March 1, 2002, unless earlier terminated in
accordance with paragraph 8 herein or extended as agreed to between the parties.
3. SERVICES.
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During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of a marketing program to enable the Company
to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) Advise the Company relative to the recruitment and employment of
key executives consistent with the expansion of operations of the
Company;
(d) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, business acquisitions
and advice with regard to the ongoing managing and operating of such
acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans,
institutional loans, private debt funding, mezzanine financing, blind
pool financing and other preferred and common stock equity private or
public financing. Consultant will not directly or indirectly arrange a
financing that involves any securities issuance, whether equity or
debt.
4. DUTIES OF THE COMPANY.
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The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
COMPENSATION.
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The Company will immediately grant Consultant the option to purchase
6,000,000 shares of the Company's Common Stock with an exercise price at $.0225
per share and 5,150,000 shares with an exercise price at $.01 per share, which
options shall expire on March 1, 2002 at 5:00 P.M. P.S.T. The number of shares
herein are subject to the anti-dilution provisions of the corresponding warrant
which is being issued in conjunction with this Agreement. Consultant in
providing the foregoing services, shall not be responsible for any out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
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The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant represents
that he has knowledge of and is experienced in providing the aforementioned
services.
7. MISCELLANEOUS.
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Termination: This Agreement may be terminated by either Party upon written
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notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
Modification: This Consulting Agreement sets forth the entire
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understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall be
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in writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
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Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
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discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
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illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
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this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Kaire Holdings Incorporated CONSULTANT
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxx
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Xxxxxx Xxxxxxxx Xxxxxxx Xxxxx
Chief Executive Officer
Exhibit 4.1 (b)
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the 14/th/ day of
December, 2000, between Kaire Holdings, Inc., (the "Company") and
CEOCAST, Inc. ("Consultant").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby employs the Consultant during the Term (as
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defined below) to render consulting advice to the Company and its investors
in connection with investor relations and similar matters, upon the terms
and conditions as set forth herein.
2. Term. This Agreement shall be effective for a three-month period (the
----
"Term") commencing on the date hereof.
3. Duties of Consultant. During the term of this Agreement, the Consultant
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shall provide the Company with the services described on Exhibit A hereto
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which is attached hereto and made a part hereof. Notwithstanding the
foregoing, it is understood and acknowledged by the parties that the
Consultant: (a) shall perform its analysis and reach its conclusions about
the Company independently, and that the Company shall have no involvement
therein; and (b) shall not render advice and/or services to the Company in
any manner, directly or indirectly, that is in connection with the offer or
sale of securities in a capital raising transaction or that could result in
market making.
4. Expenses. The Company, upon receipt of appropriate supporting
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documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred by it in connection with services requested
by the Company, including, but not limited to, all charges for travel,
printing costs and other expenses spent on the Company's behalf. However,
the Consultant shall not incur expenses that exceed $500 per month in the
aggregate without the prior written approval of the Company.
5. Compensation. For services to be rendered by the Consultant hereunder, the
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Consultant shall receive (a) $7,500 upon signing of this Agreement and (b)
850,000 full paid and non-assessable shares of the Company's common stock,
par value $.0001 per share (the "Common Stock").
6. Further Agreements. Because of the nature of the services being provided by
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Consultant hereunder, Consultant acknowledges that if it may receive access
to Confidential Information ( as defined in Section 7 hereof ) and that, as
a consultant to the Company, it will attempt to provide advice that serves
the best interest of the Company. Because of the uniqueness of this
relationship, the Consultant covenants and agrees that, with respect to the
Common Stock that it receives. Consultant shall, at all times that it is
the beneficial owner of such shares, vote such shares on all matters coming
before it as a stockholder of the Company in the same manner as the
majority of the Board of Directors of the Company shall recommend.
7. Confidentiality. Consultant acknowledges that as a consequence of its
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relationship with the Company, it may be given access to confidential
information which may include the following types of information; financial
statements and related financial information with respect to the Company
and its subsidiaries (the "Confidential Financial Information"), trade
secrets, products, product development, product packaging, future marketing
materials, business plans, certain methods of operations, procedures,
improvements, systems, customer lists, supplier lists and specifications,
and other private and confidential materials concerning the Company's
business (collectively, "Confidential Information").
Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information
solely to perform its duties under this Agreement, and Consultant shall
refrain from allowing such information to be used in any way for its own
private or commercial purposes. Consultant shall also refrain from
disclosing any such Confidential Information to any third parties.
Consultant further agrees that upon termination or expiration of this
Agreement, it will return all Confidential Information and copies thereof
to the Company and will destroy all notes, reports and other material
prepared by or for it containing Confidential Information. Consultant
understands and agrees that the Company might be irreparably harmed by
violation of this Agreement and that monetary damages may be inadequate to
compensate the Company. Accordingly, the Consultant agrees that, in
addition to any other remedies available to it at law or in equity, the
Company shall be entitled to injunctive relief to enforce the terms of this
Agreement.
Notwithstanding the foregoing, nothing herein shall be construed
as prohibiting Consultant from disclosing any Confidential Information (a)
which at the time of disclosure. Consultant can demonstrate either was in
the public domain and generally available to the public or thereafter
becomes a part of the public domain and is generally available to the
public by publication or otherwise through no act of the Consultant; (b)
which Consultant can establish was independently developed by a third party
who developed it without the use of the Confidential Information and who
did not acquire it directly or indirectly from Consultant under an
obligation of confidence; (c) which Consultant can show was received by it
after the termination of this Agreement from a third party who did not
acquire it directly or indirectly from the Company under an obligation of
confidence; or (d) to the extent that the Consultant can reasonably
demonstrate such disclosure is required by law or in any legal proceeding,
governmental investigation, or other similar proceeding.
Severability. If any provision of this Agreement shall be held
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or made invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby
and, to this extent, the provisions of this Agreement shall be deemed to be
severable.
8. Governing Law; Venue; Jurisdiction. This Agreement shall be construed and
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enforced in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts or choice of law
thereof. Each of the parties consents to the jurisdiction of the U.S.
District Court sitting in the Southern District of the State of New York or
the state courts of the State of New York sitting in Manhattan in
connection with any dispute arising under this Agreement and hereby waives,
to the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens. to the bringing of any such
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proceeding in such jurisdictions. Each party hereby agrees that if another
party to this Agreement obtains a judgment against it in such a proceeding,
the party which obtained such judgment may enforce same by summary judgment
in the courts of any country having jurisdiction over the party against
whom such judgment was obtained, and each party hereby waives any defenses
available to it under local law and agrees to the enforcement of such a
judgment. Each party to this Agreement irrevocably consents to the service
of process in any such proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such party at it address
set forth herein. Nothing herein shall affect the right of
any party to serve process in any other manner permitted by law. Each party
waives its right to a trial by jury.
9. Miscellaneous.
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(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail,
postage prepaid, if to the Company, addressed to it at Kaire
Holdings, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, XX 00000
or if to the Consultant, addressed to it at 00 Xxxx Xxxxxx,
00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx,
President facsimile number : (000) 000-0000, or to such address
as may hereafter be designated in writing by one party to the
other. Any notice or other communication hereunder shall be
deemed given three days after deposit in the mail if mailed by
certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery,
or on the date delivered by hand or by facsimile with accurate
confirmation generated by the transmitting facsimile machine, at
the address or number designated above (if delivered on a
business day during normal business hours where such notice is to
be received), or the first business day following such delivery
(if delivered other than on a business day during normal business
hours where such notice is to be received).
(b) This Agreement embodies the entire Agreement and understanding
between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior
arrangements and understandings related to the central subject
matter hereof.
(c) This Agreement has been duly authorized, executed and delivered
by and on behalf of the Company and the Consultant.
(d) This Agreement and all rights, liabilities and obligations
hereunder shall be binding upon and inure to the benefit of each
party's successors but may not be assigned without the prior
written approval of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereof.
KAIRE HOLDINGS, INC.
By:___________________________
CEOCAST, INC.
By:________________________
EXHIBIT A
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