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Exhibit 4.1
Consulting Agreement and Stock Plan
THIS CONSULTING AGREEMENT AND STOCK PLAN (this "Agreement") is entered
into as of August 1, 1997 by and between Sequester Holdings, Incorporated
("Sequester"), a Nevada corporation, whose principal place of business is
located at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000,
and Hy Ochberg ("Consultant"), whose principal place of business is located at
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (individually, a "Party"
and collectively, the "Parties").
RECITALS
A. Sequester is a public company whose Common Stock, $.002 par value,
is quoted on the OTC Bulletin Board. Sequester currently has over 600
shareholders. It is important to Sequester for Sequester to maintain good
shareholder relations with its shareholders, including providing to its
shareholders a continuous flow of company information.
B. Consultant is experienced in conducting shareholder relations and
providing a continuous flow of company information to shareholders of public
companies such as Sequester.
C. Sequester has previously utilized Consultant for the foregoing
services and is desirous of continuing its use of Consultant's services in the
area of shareholder relations with the specific objective of providing a
continuous flow of company information to Sequester's shareholders.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the Parties as
follows:
1. Engagement. Sequester hereby retains and engages Consultant to
perform such public relations services regarding the disclosure and
dissemination of Sequester's financial condition, results of operations and
other material financial and related information of Sequester as Sequester may
from time to time reasonably request and as set forth more particularly in
paragraph 2 below (the "Consulting Services"), and Consultant agrees to perform
the Consulting Services subject to the terms and conditions of this Agreement.
2. Consulting Services. The consulting services contemplated by this
Agreement (the "Consulting Services") shall consist of:
a. Reviewing each of Sequester's reports on Forms 10-KSB and
10-QSB that will be filed with the Securities and Exchange Commission and
remaining knowledgeable about the contents thereof;
b. Preparing press releases regarding events by or affecting
Sequester that may have a material financial impact on Sequester, which press
releases must in all circumstances be approved by Sequester;
c. Working with Sequester management to prepare and mail out
periodic shareholder newsletters;
d. Conducting shareholder seminars;
e. Facilitating communication to shareholders of the
information contained in Sequester's Forms 10-KSB and 10-QSB, press releases,
shareholder newsletters and shareholder seminars;
f. Responding to telephone inquiries from shareholders
regarding the information contained in Sequester's Forms 10-KSB and 10-QSB,
press releases, shareholder newsletters and shareholder seminars and;
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g. Performing such other public relations services as are
consistent with the overall objective of providing a continuous flow of company
information for the benefit of Sequester's shareholders.
3. Scope of this Agreement. The raising of capital by Consultant for
Sequester is outside the scope of this Agreement. Consultant shall not perform
for Sequester any service related to the raising of capital, whether directly or
indirectly, including without limitation (a) securing additional marketmakers;
(b) obtaining exposure to institutional investors and other interested parties;
and (c) locating regional firm analysis to initiate coverage on Sequester.
4. Consideration. In consideration of the performance by Consultant of
the Consulting Services, Sequester will issue to Consultant 1,000,000 shares of
Sequester common stock (the "Shares") at a purchase price of $0.002 per share,
for a total consideration of $2,000. In the event that Consultant does not
completely perform the Consulting Services (for any reason including the death
or incapacity of Consultant), then for each month that Consultant does not
perform the Consulting Services, one thirty-sixth (1/36) of the Shares (as
adjusted for stock splits, reverse stock splits, stock dividends or
distributions or other reclassifications of Sequester's common stock) shall be
returned to Sequester and cancelled. Consultant agrees to purchase shares in the
open market, if necessary, to fulfill such obligation to return shares to
Sequester.
The shares will be issued as soon as practicable following execution of
this Agreement and the filing of a registration statement on Form S-8 covering
the Shares.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of reimbursement
by Sequester. Sequester and Consultant shall from time to time as appropriate
discuss and agree on what costs and expenses Sequester will bear in connection
with the completion of certain of the Consulting Services related to current
shareholder matters, such as printing and mailing newsletters to shareholders.
6. Term. The term of this Agreement is three years, commencing August
1, 1997 and ending August 1, 2000 (the "Term"). This Agreement may be terminated
prior to the end of the Term upon the mutual agreement of the Parties or in the
event Consultant is in default (as defined below) in the performance of the
Consulting Services, which default is not cured within a reasonable time
following written notice thereof from Sequester. A "default" occurs when, in
Sequester's sole and exclusive judgment, Consultant is not satisfactorily
performing the Consulting Services.
7. Miscellaneous.
a. Entirety of Agreement. This Agreement sets forth the entire
understanding of the Parties with respect to the matters contemplated hereby.
Any and all previous agreements and understandings between or among the Parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement. This Agreement shall not be amended or modified except by
written instrument duly executed by each of the Parties.
b. Assignment and Binding Effect. This Agreement may not be
assigned without the prior written consent of the other Party.
c. Waiver. Any term or provision of this Agreement may be
waived at any time by the Party entitled to the benefit thereof by a written
instrument duly executed by such Party.
d. Notices. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given only if delivered personally or sent by
facsimile, or by registered or certified mail, postage prepaid, as follows:
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If to Sequester, to:
Sequester Holdings, Incorporated
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
If to Consultant, to:
Xx. Xx Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications will be deemed to have been given as
of the date so delivered, telephoned or mailed.
e. Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of California.
f. No Benefit to Others. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the Parties hereto.
g. Severability. Any provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability in such jurisdiction without invalidating
or rendering unenforceable the remaining provisions hereof, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
h. Attorneys' Fees. In the event of a dispute concerning the
matters contained in this Agreement, the prevailing party shall be reimbursed
all of its attorneys' fees and costs incurred.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
Sequester Holdings, Incorporated,
a Nevada corporation
By: /s/ Wellington Ewen
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Name: Wellington Ewen
Its: President
Consultant
/s/ Hy Ochberg
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Hy Ochberg
