EXHIBIT 4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of the
1st day of July, 2003 by and between Vitalstate, Inc., a New York corporation,
with its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
X0X 0X0 (the "Company") and Xxxxx Xxxxx with an address of 0000 Xxxxx Xxxxx
Xxxx. Xxxx, Xxxx 0, Xxxxxxxxxx, Xxxxxxx X0X 0X0 (the "Consultant").
WHEREAS, the Company wishes to engage the Consultant to provide
advisory services to the Company including services related to proposed mergers
and acquisitions, and the Consultant wishes to accept such engagement, all upon
the terms and subject to the conditions contained in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
consideration and promises contained herein and intending to be bound, hereby
agree as follows:
1. Retention of Consultant. The Company hereby retains the Consultant,
and Consultant agrees to be retained by the Company, upon the terms in, and
subject to the conditions of, this Agreement.
2. Term. The term of this Agreement shall begin on the date hereof and
shall continue for twelve (12) months.
3. Duties of Consultant. During the term of this Agreement, the
Consultant shall advise the Company with respect to (i) the marketing and sale
of company products; and (ii) proposed business combinations that may be
presented to the Company. In connection with its duties, the Consultant shall
familiarize itself to the extent it deems appropriate and feasible with the
business, operations, properties, financial conditions and prospects of the
Company and may seek further information concerning the Company that the
Consultant considers necessary (the "Information").
4. Compensation. As compensation to the Consultant for the services to
be rendered under this Agreement, the Company shall issue and deliver to the
Consultant eighty eight thousand, two hundred thirty five (88,235) shares (the
"Shares") of the Company's common stock. Prior to issuance, the Company shall
register the Shares in a Registration Statement on Form S-8.
5. Status as Independent Contractor. The parties intend and acknowledge
that the Consultant is acting as an independent contractor and not as an
employee of the Company. The Consultant shall have full discretion in
determining the amount of time and activity to be devoted to rendering the
services contemplated under this Agreement and the level of compensation to
Consultant is not dependent upon any preordained time commitment or level of
activity. The Company acknowledges that the Consultant shall remain free to
accept other consulting engagements of a like nature to the engagement under
this Agreement. The Company shall not be responsible for any withholding in
respect of taxes or any other deductions in respect of the fees to be paid to
Consultant and all such amounts shall be paid without any deduction or
withholding. Nothing in this Agreement shall be construed to create any
partnership, joint venture or similar arrangement between the Company and the
Consultant or to render either party responsible for any debts or liabilities of
the other.
6. Confidentiality. The Consultant acknowledges that in connection with
the services to be rendered under this Agreement, the Consultant may be provided
with confidential business information of the Company. The Consultant agrees to
keep any information or materials specifically designated in writing by a
responsible officer of the Company as confidential (the "Confidential
Information") in the strictest confidence and not to disclose or disseminate any
such Confidential Information to any person, firm or other business entity
except to those employees, consultants or other independent contractors of the
Company or the Consultant as shall be necessary or advisable for the carrying
out of the purposes of this Agreement and who are under a similar obligation of
confidentiality.
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7. Amendments, Modifications, Waivers, Etc. No amendment or
modification to this Agreement, nor any waiver of any term or provision hereof,
shall be effective unless it shall be in a writing signed by the party against
whom such amendment, modification or waiver shall be sought to be enforced. No
waiver of any term or provision shall be construed as a waiver of any other term
or condition of this Agreement, nor shall it be effective as to any other
instance unless specifically stated in a writing conforming with the provisions
of this Section 7.
8. Successors and Assigns. This Agreement shall be enforceable against
any successors in interest, if any, to the Company and the Consultant. Except as
specifically provided herein, neither the Company nor the Consultant shall
assign any of their respective rights or obligations hereunder without the
written consent of the other in each instance.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. Notices. Any notices required or permitted to be given under this
Agreement shall be effective upon receipt at the respective addresses in the
recitals to this Agreement unless the address for notice to either party shall
have been changed by a notice given in accordance with this Section 10.
11. Governing Law; Venue. This Agreement shall be governed by, and
construed in accordance with, the substantive laws of the State of New York,
without regard for principals of conflicts of laws. Any action under this
Agreement shall be brought in the federal or state court in the City, County and
State of New York.
IN WITNESS WHEREOF, the parties hereto have set their respective hands
as of the date first above written.
The Company: The Consultant:
VITALSTATE, INC.
By: /s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx
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Xxxxxxx Xxxxx, President Xxxxx Xxxxx
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