Exhibit 4.1
This Agreement (the "Agreement") is dated February 17, 2003 and is entered into
by and between KAIRE HOLDINGS, INC. (hereinafter "KAHI" or "CLIENT") and
Xxxxxx Xxxxxxx and Xxxxx Xxxxxx (otherwise known as NEOTACTIX, INC.)
(hereinafter "NTX").
1. Conditions. This Agreement will not take effect, and NTX will have no
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obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to NTX (either by mail or
facsimile copy). In addition, CLIENT shall be truthful with NTX in regard
to any relevant or material information provided by CLIENT, verbally or
otherwise which refers, relates, or otherwise pertains to the CLIENT's
business, this Agreement or any other relevant transaction. Breach of
either of these conditions shall be considered a material breach and will
automatically grant NTX the right to terminate this Agreement and all
moneys, and other forms of compensation, paid or owing as of the date of
termination by NTX shall be forfeited without further notice. Upon
execution of this Agreement, CLIENT agrees to fully cooperate with NTX in
carrying out the purposes of this Agreement, keep NTX informed of any
developments of importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, NTX will perform
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the following services for CLIENT:
2.1 ADVICE AND COUNSEL. NTX will provide advice and counsel regarding
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CLIENT's strategic business plans, strategy and negotiations with
potential business strategic partnering, corporate planning and or other
general business consulting needs as expressed by CLIENT.
2.2 MERGERS AND ACQUISITIONS. NTX will provide assistance to CLIENT,
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as mutually agreed, in identifying merger and / or acquisition candidates,
assisting in any due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as needed.
2.3 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE. NTX
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will participate and assist CLIENT in the due diligence process, where
possible, on all proposed financial transactions affecting CLIENT of which
NTX is notified in writing in advance, including conducting investigation
of and providing advice on the financial, valuation and stock price
implications of the proposed transaction(s).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, NTX will assist and
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cooperate with CLIENT in the development, editing and production of such
documents as are reasonably necessary to assist in any transaction covered
by this Agreement. However, this Agreement will not include the
preparation or procuring of legal documents or those documents normally
prepared by an attorney.
2.5 ADDITIONAL DUTIES. CLIENT and NTX shall mutually agree, in
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writing, for any additional duties that NTX may provide to CLIENT for
compensation paid or payable by CLIENT under this Agreement. Although
there is no requirement to do so, such additional agreement(s) may be
attached hereto and made a part hereof by written amendments to be listed
as "Exhibits" beginning with "Exhibit A" and initialed by both parties.
2.6 STANDARD OF PERFORMANCE. NTX shall devote such time and efforts to
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the affairs of the CLIENT as is reasonably necessary to render the
services contemplated by this Agreement. Any work or task of NTX provided
for herein which requires CLIENT to provide certain information to assist
NTX in completion of the work shall be excused (without effect upon any
obligation of CLIENT) until such time as CLIENT has fully provided all
information and cooperation necessary for NTX to complete the work. The
services of NTX shall not include the rendering of any legal opinions or
the performance of any work that is in the ordinary purview of a certified
public accountant, or other licensed professional. NTX cannot guarantee
results on behalf of CLIENT, but shall use commercially reasonable efforts
in providing the services listed above. If an interest is communicated to
NTX regarding satisfying all or part of CLIENT's business and corporate
strategic planning needs, NTX shall notify CLIENT and advise it as to the
source of such interest and any terms and conditions of such interest.
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2.7 NON-GUARANTEE. NTX MAKES NO GUARANTEE THAT NTX WILL BE ABLE TO
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SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN CONSUMMATE
A MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO SUCCESSFULLY
COMPLETE SUCH A TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOR THE PAYMENT OF DEPOSITS TO
NTX BY CLIENT PURSUANT TO FEE AGREEMENTS FOR SERVICES NOT CONTEMPLATED
HEREIN SHALL BE CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE
REGARDING POTENTIAL TIME FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME
OF CLIENT'S NEEDS ARE EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES OF
THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3. COMPENSATION TO NTX.
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3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration
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for NTX entering into this Agreement, Client agrees to cause 40,000,000
shares of its common stock, par value $.001 per share, to be issued in
amounts of 20,000,000 shares to Xxxxxx X. Xxxxxxx and 20,000,000 shares to
Xxxxx X. Xxxxxx, affiliates of NTX. When issued, said shares shall be free
trading shares, registered with the U.S. Securities and Exchange
Commission on its Form S-8 or similar registration. The registration and
issuance of said shares shall take place by no later than 15 days
following the execution and delivery of this Agreement, and all costs in
connection therewith shall be borne by Client. In addition, Client hereby
irrevocably grants to NTX an Option to purchase any part or all of an
aggregate of 40,000,000 shares of its common stock. The purchase price of
the shares of common stock subject to the Option shall be $.001 per share
without commission or other charge. The Option, or any exercisable portion
thereof, may be exercised solely by delivery to the Client's corporate
secretary or the corporate secretary's office during the twelve (12) month
time period immediately following the date of this agreement, all of the
following:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, and
(b) (i) Full payment (in cash or by check) for the shares with respect
to which such Option or portion thereof is exercised; or
(ii) Shares of Common Stock owned by the Optionee duly endorsed for
transfer to the Company, or, shares of Common Stock issuable to the
Optionee upon exercise of the Option, with a Fair Market Value on
the date of Option exercise equal to the aggregate purchase price of
the shares with respect to which the Option or portion thereof is
exercised.
NOTE: NTX SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY NTX WITHIN 15 DAYS
OF MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, NTX'S
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING
HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE
RECEIPT OF ANY FEES DUE TO NTX UPON EXECUTION OF THIS AGREEMENT ARE NOT
CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY DUTIES WHATSOEVER DESCRIBED
WITHIN THIS AGREEMENT.
3.2 FEES FOR MERGER/ACQUISITION. In the event that NTX, assists CLIENT
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and / or introduces CLIENT (or a CLIENT affiliate) to any third party,
merger partner(s) or joint venture(s) who then enters into a merger, joint
venture or similar agreement with CLIENT or CLIENT's affiliate, CLIENT
hereby agrees to pay NTX advisory fees pursuant to the following schedule
which are based on the aggregate amount of such merger, joint venture or
similar agreement with CLIENT or CLIENT's affiliate. Advisory fees are
deemed earned and shall be due and payable at the first close of the
transaction, however, in certain circumstances when payment of advisory
fees at closing is not possible, within 24 hours after CLIENT has received
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the proceeds of such investment. This provision shall survive this
Agreement for a period of one year after termination or expiration of this
Agreement. In other words, the advisory fee shall be deemed earned and due
and payable for any funding, underwriting, merger, joint venture or
similar transaction which first closes within a year of the termination or
expiration of this Agreement as a result of an introduction as set forth
above.
MERGER/ACQUISITION. For a merger/acquisition entered into by CLIENT as a
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result of the efforts of, or an introduction by NTX during the term of
this Agreement, Client shall pay NTX, ten (10) percent of the total value
of the transaction. For a merger/acquisition entered into by CLIENT as a
result of the efforts of NTX and the introduction by CLIENT during the
term of this Agreement, Client shall pay NTX, ten (10) percent of the
total value of the transaction. Such percentage(s) shall be paid to NTX in
the same ratio of cash and / or stock as the transaction within 30 days
following the close of such transaction.
3.3 EXPENSES. CLIENT shall reimburse NTX for reasonable expenses
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incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and
long distance telephone and facsimile charges); provided, however, that
NTX must receive prior written approval from CLIENT for any expenses over
$ 500. Such reimbursement shall be payable within 7 seven days after
CLIENT's receipt of NTX invoice for same.
3.4 ADDITIONAL FEES. CLIENT and NTX shall mutually agree upon any
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additional fees that CLIENT may pay in the future for services rendered by
NTX under this Agreement. Such additional agreement(s) may, although there
is no requirement to do so, be attached hereto and made a part hereof as
Exhibits beginning with Exhibit A.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless NTX,
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each of its officers, directors, employees and shareholders against any
and all liability, loss and costs, expenses or damages, including but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason of any
injury (whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property, arising
out of any act, failure to act, neglect, any untrue or alleged untrue
statement of a material fact or failure to state a material fact which
thereby makes a statement false or misleading, or any breach of any
material representation, warranty or covenant by CLIENT or any of its
agents, employees, or other representatives. Nothing herein is intended to
nor shall it relieve either party from liability for its own willful act,
omission or negligence. All remedies provided by law, or in equity shall
be cumulative and not in the alternative.
5. CONFIDENTIALITY.
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5.1 NTX and CLIENT each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests. NTX and
CLIENT shall each require their employees, agents, affiliates, other
licensees, and others who will have access to the information through NTX
and CLIENT respectively, to first enter appropriate non-disclosure
Agreements requiring the confidentiality contemplated by this Agreement in
perpetuity.
5.2 NTX will not, either during its engagement by the CLIENT pursuant
to this Agreement or at any time thereafter, disclose, use or make known
for its or another's benefit any confidential information, knowledge, or
data of the CLIENT or any of its affiliates in any way acquired or used by
NTX during its engagement by the CLIENT. Confidential information,
knowledge or data of the CLIENT and its affiliates shall not include any
information that is, or becomes generally available to the public other
than as a result of a disclosure by NTX or its representatives.
6. MISCELLANEOUS PROVISIONS.
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6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended,
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modified and supplemented only by written agreement of NTX and CLIENT.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall
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be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either
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party hereunder cannot be assigned without the express written consent of
the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among
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the parties hereto shall be governed by and construed in accordance with
the laws of the State of California, without regard to its conflict of law
doctrine. CLIENT and NTX agree that if any action is instituted to enforce
or interpret any provision of this Agreement, the jurisdiction and venue
shall be Orange County, California.
6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce
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and collect upon the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and costs, in addition to any
other relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed
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by a court of competent jurisdiction, to be invalid or unenforceable, that
part shall be severable from the remainder of the Agreement.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN
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CLIENT, NTX OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES,
ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER
PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF
THIS AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH
LITIGATION. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK
MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE ANY
AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE
AMERICAN ARBITRATION ASSOCIATION, IN ORANGE COUNTY, CALIFORNIA
WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM
THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE
PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR
SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION
FORUM LOCATED IN ORANGE COUNTY, CALIFORNIA, OVER ANY MATTER WHICH IS
THE SUBJECT OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER FROM THE LOSING PARTY ITS LEGAL FEES AND ANY
OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF
SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO
ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL
AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION.
8. TERM/TERMINATION. This Agreement is an agreement for the term of
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approximately three (3) months ending February 12, 2003.
9. REGISTRATION OF SHARES. NTX shall have standard piggyback registration
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rights (as described in Section 3.2 herein) of all shares issued in
accordance with this Agreement, which are not subject to registration per
Section 3.0 et seq. herein.
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10. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby
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agrees that NTX may introduce (whether by written, oral, data, or other
form of communication) CLIENT to one or more opportunities, including,
without limitation, natural persons, corporations, limited liability
companies, partnerships, unincorporated businesses, sole proprietorships
and similar entities (hereinafter an "Opportunity" or ""Opportunities"").
CLIENT further acknowledges and agrees that the identity of the subject
Opportunities, and all other information concerning an Opportunity
(including without limitation, all mailing information, phone and fax
numbers, email addresses and other contact information) introduced
hereunder are the property of NTX, and shall be treated as confidential
and proprietary information by CLIENT, it affiliates, officers, directors,
shareholders, employees, agents, representatives, successors and assigns.
CLIENT shall not use such information, except in the context of any
arrangement with NTX in which NTX is directly and actively involved, and
never without NTX's prior written approval. CLIENT further agrees that
neither it nor its employees, affiliates or assigns, shall enter into, or
otherwise arrange (either for it/him/herself, or any other person or
entity) any business relationship, contact any person regarding such
Opportunity, either directly or indirectly, or any of its affiliates, or
accept any compensation or advantage in relation to such Opportunity
except as directly though NTX, without the prior written approval of NTX.
NTX is relying on CLIENT's assent to these terms and their intent to be
bound by the terms by evidence of their signature. Without CLIENT's signed
assent to these terms, NTX would not introduce any Opportunity or disclose
any confidential information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
KAIRE HOLDINGS, INC. ( KAHI )
Print Name: Xx. Xxxxx Xxxxxxxx
Sign Name: /s/ Xxxxx Xxxxxxxx
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Title: Chief Executive Officer
Date:
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Address: 0000 Xxxxxxxx Xxx.
Xxx Xxxxxx, XX 00000
NEOTACTIX, INC. (NTX)
Print Name: Xxxxx Xxxxxx
Sign Name: /s/ Xxxxx Xxxxxx
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Title: Managing Partner
Date:
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Address: 00000 XxxXxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, XX 00000
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