UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date of Report (Date of earliest event reported): November 25, 2015
ALKAME HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
| Nevada | 000-55267 | 98-0661455 |
| (State
or other jurisdiction of incorporation) |
(Commission File Number) | (IRS
Employer Identification No.) |
3651 Lindell Road Suite D # 356 Las Vegas, Nevada |
89103 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (702) 273-9714
| ____________________________ |
| (Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c))
SECTION 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
On November 25, 2015, we entered into an employment agreement with our executive officer and director, Robert Eakle, retroactive for the year ended 2015 (the “2015 Employment Agreement”).
Pursuant to the terms and conditions of the 2015 Employment Agreement with Mr. Eakle:
| § | For the fiscal year ended December 31, 2015, we agreed to retain Mr. Eakle as Chief Executive Officer of our company and Mr. Eakle agreed to accept this senior officer position. |
| § | The term will encompass the fiscal year ended 2015. |
| § | Mr. Eakle shall receive an annual compensation of $120,000. |
| § | Mr. Eakle will received 1,000,000 shares of our newly created Series D Preferred Stock. |
| § | In the event of insufficient liquidity, Mr. Eakle will be allowed to receive any unpaid and accrued portion of his cash compensation in the form of common stock or Series D Preferred Stock, as he may choose. |
On December 31, 2015, we entered into a consulting agreement with Kaufman & Associates Inc. (“Kaufman”) retroactive for the year ended 2015 (the “2015 Consulting Agreement”).
Pursuant to the terms and conditions of the 2015 Consulting Agreement with Kaufman:
| § | For the fiscal year ended December 31, 2015, we agreed to retain Kaufman as a consultant and Kaufman agreed to act as a consultant. |
| § | The term will encompass the fiscal year ended 2015. |
| § | Kaufman shall receive an annual compensation of $120,000. |
| § | Kaufman will received 1,000,000 shares of our newly created Series D Preferred Stock. |
| § | In the event of insufficient liquidity, Kaufman will be allowed to receive any unpaid and accrued portion of his cash compensation in the form of common stock or Series D Preferred Stock, as it may choose. |
The foregoing description of the 2015 Employment Agreement and 205 Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the agreements filed as Exhibits 10.1 and 10.2 hereto and incorporated herein by reference.
SECTION 3 – Securities and Trading Markets
Item 3.03 Material Modification of Rights of Security Holders
On November 25, 2015, pursuant to Article III of our Articles of Incorporation, our Board of Directors voted to designate a class of preferred stock entitled Series D Preferred Stock, consisting of up to four million (4,000,000) shares, par value $0.001.
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Under the Certificate of Designation, holders of Series D Preferred Stock will have liquidation preference over the holders of our common stock and preferred stock in any distribution upon winding up, dissolution, or liquidation. Holders of Series D Preferred Stock are entitled to convert each share of Series D Preferred Stock into ten (10) shares of common stock. Holders of Series D Preferred Stock are also entitled to vote together with the holders of our common stock and other voting series of preferred stock on all matters submitted to shareholders at a rate of twenty-five thousand (25,000) votes for each share held. We are required to gain the 100% approval of all outstanding shares of Series D Preferred Stock to conduct any of the following corporate actions:
| § | Increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series D Convertible Preferred Stock; |
| § | Effect an exchange, reclassification, or cancellation of all or a part of the Series D Convertible Preferred Stock, but excluding a stock split or reverse stock split of our common stock or preferred stock; |
| § | Effect an exchange, or create a right of exchange, of all or part of the shares of another class of shares into shares of Series D Convertible Preferred Stock; |
| § | Alter or change the rights, preferences or privileges of the shares of Series D Preferred Stock so as to affect adversely the shares of such series; |
| § | Amend, alter or repeal any provision of our Articles of Incorporation or Bylaws; or |
| § | Designate any new class of preferred stock, nor sell or issue in any way, shape or form, any additional shares of preferred stock other than shares in those classes of preferred stock already so designated. |
The rights of the holders of Series D Preferred Stock are defined in the relevant Certificate of Designation filed with the Nevada Secretary of State on November 25, 2015, attached hereto as Exhibit 3.1, and is incorporated by reference herein.
SECTION 5 – CORPORATE GOVERNANCE AND MANAGEMENT
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
The information set forth in Items 1.01 and 3.03 is incorporated into this Item 5.02 by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws
The information set forth in Item 3.03 is incorporated into this Item 5.03 by reference.
Section 9 – FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01 Financial Statements and Exhibits
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Alkame Holdings, Inc.
/s/ Robert Eakle
Robert
Eakle
Chief Executive Officer
Date: November 30, 2015
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BARBARA K. CEGAVSKE
Secretary of State
206 North Carson Street
Carson City, Nevada 89701-4299
(775) 684 5708
Website: secretaryofstate.biz
Certificate of Designation
(PURSUANT TO NRS 78.1955)
| USE BLACK INK ONLY-DO NOT HIGHLIGHT | ABOVE SPACE IS FOR OFFICE USE ONLY | ||
| Certificate of Designation | |||
| For Nevada Corporations | |||
| (Pursuant to NRS 78.1955) | |||
| 1. | Name of corporation: | ||
| Alkame Holdings, Inc. | |||
| 2. | By resolution of the board of directors pursuant to a provision in the articles of incorporation this certificate establishes the following regarding the voting powers, designations, preferences, limitations, restrictions and relative rights of the following class or series of stock. | ||
| SERIES D PREFERRED STOCK On behalf of Alkame Holdings, Inc., a Nevada corporation (the “Corporation”), the undersigned hereby certifies that the following resolution has been duly adopted by the board of directors of the Corporation (the “Board”): RESOLVED, that, pursuant to the authority granted to and vested in the Board by the provisions of the articles of incorporation of the Corporation (the “Articles of Incorporation”), there hereby is created, out of the one hundred million (100,000,000) shares of preferred stock, par value $.001 per share, of the Corporation authorized by Article III of the Articles of Incorporation (“Preferred Stock”), a series of Series D Preferred Stock, consisting of four million (4,000,000) shares, which series shall have the following powers, designations, preferences and relative participating, optional and other special rights, and the following qualifications, limitations and restrictions: SEE ATTACHED | |||
| 3. | Effective date of filing (optional): | ||
| 4. | Signatures (required) | ||
| X /s/ Robert K. Eakle | |||
| Signature | |||
______________________________________________
CERTIFICATE OF DESIGNATION
OF
ALKAME HOLDINGS, INC.
Pursuant to Section 78.1955 of the
Nevada Revised Statutes
______________________________________________
Pursuant to Section 78.1955 of the Nevada Revised Statutes, Alkame Holdings, Inc., a corporation organized and existing under the Nevada Revised Statutes (the “Company”),
DOES HEREBY CERTIFY that pursuant to the authority conferred upon the Board of Directors by the Articles of Incorporation of the Company, and pursuant to Section 78.1955 of the Nevada Revised Statutes, the Board of Directors, by unanimous written consent of all members of the Board of Directors on November 25th, 2015, duly adopted a resolution providing for the issuance of a series of shares of Series D Convertible Preferred Stock, which resolution is and reads as follows:
RESOLVED, that pursuant to the authority expressly granted to and invested in the Board of Directors of Alkame Holdings, Inc. by the provisions of the Articles of Incorporation of the Company, as amended, a series of the preferred stock, par value $0.001 per share, of the Company be, and it hereby is, established; and
FURTHER RESOLVED, that the series of preferred stock of the Company be, and it hereby is, given the distinctive designation of "Series D Preferred Stock"; and
FURTHER RESOLVED, that the Series D Preferred Stock shall consist of Four Million (4,000,000) shares; and
RESOLVED, that the Series D Preferred Stock shall have the powers and preferences, and the relative, participating, optional and other rights, and the qualifications, limitations, and restrictions thereon set forth below (the “Designation” or the “Certificate of Designation”):
Section 1. DESIGNATION OF SERIES. The number of shares of Series D Preferred Stock shall initially consist of up to Four Million (4,000,000) shares.
Section 2. DEFINITIONS.
For purposes of this Designation, the following definitions shall apply:
(a) “Business Day” means a day in which a majority of the banks in the State of Nevada in the United States of America are open for business.
(b) “Common Stock” means the Company’s $0.001 par value common stock, or any other class of stock resulting from successive changes or reclassifications of such common stock consisting solely of changes in par value, or as a result of a subdivision, combination, or merger, consolidation or similar transaction in which the Company is a constituent corporation.
(c) “Conversion Date” shall mean the date on which a share or shares of the Series D Preferred Stock is converted pursuant to this Certificate of Designation.
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(d) “Distribution” shall mean the transfer of cash or other property without consideration whether by way of dividend or otherwise (other than dividends on Common Stock payable in Common Stock), or the purchase or redemption of shares of the Company for cash or property other than: (i) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, (ii) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) repurchases of capital stock of the Company in connection with the settlement of disputes with any shareholder, (iv) any other repurchase or redemption of capital stock of the Company approved by the holders of (a) a majority of the Common Stock and (b) a majority of the Preferred Stock of the Company voting as separate classes.
(e) “Holder” shall mean the person or entity in which the Series D Preferred Stock is registered on the books of the Company, which shall initially be the person or entity which subscribes for the Series D Preferred Stock, and shall thereafter be permitted and legal assigns which the Company is notified of by the Holder and which the Holder has provided a valid legal opinion in connection therewith to the Company.
(f) “Holders” shall mean all Holders of the Series D Preferred Stock.
(g) “Junior Stock” shall mean the Common Stock and each other class of capital stock or series of preferred stock of the Company established prior to or after the Original Issue Date, the terms of which do not expressly provide that such class or series ranks senior to or on parity with the Series D Preferred Stock upon the liquidation, winding-up or dissolution of the Company.
(h) “Liquidation Preference” shall mean the per share price at which the shares of Series D Preferred Stock were originally issued (as appropriately adjusted for any Recapitalizations).
(i) “Original Issue Date” shall mean the date upon which the shares of Series D Preferred Stock are first issued.
(j) “Preferred Stock Certificates” means the certificates, as replaced from time to time, evidencing the outstanding Preferred Stock shares.
(k) “Recapitalization” shall mean any stock dividend, stock split, and combination of shares, reorganization, recapitalization, reclassification or other similar event.
SECTION 3. DIVIDENDS.
(a) The holders of the Series D Preferred Stock shall not be entitled to receive any dividends.
(b) To the fullest extent permitted by the Nevada Revised Statutes, the Company shall be expressly permitted to redeem, repurchase or make distributions on the shares of its capital stock in all circumstances other than where doing so would cause the Company to be unable to pay its debts as they become due in the usual course of business.
SECTION 4. LIQUIDATION PREFERENCE
(a) Liquidation Preference. In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, the Holders of the Series D Preferred Stock shall be entitled to receive, prior and in preference to any Distribution of any of the assets of the Company to the Holders of any Junior Stock by reason of their ownership of such stock an amount per share for each share of Series D Preferred Stock held by them equal to the sum of the Liquidation Preference. If upon the liquidation, dissolution or winding up of the Company, the assets of the Company legally available for distribution to the Holders of the Series D Preferred Stock are insufficient to permit the payment to such Holders of the full amounts specified in this Section 4(a) then the entire remaining assets of the Company legally available for distribution shall be distributed with equal priority and pro rata among the Holders of the Series D Preferred Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 4(a).
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(b) Remaining Assets. After the payment to the Holders of Series D Preferred Stock of the full preferential amounts specified above, the entire remaining assets of the Company legally available for distribution by the Company shall be distributed with equal priority and pro rata among the Holders of the Junior Stock in proportion to the number of shares of Junior Stock, and the terms of such Junior stock, held by them.
(c) Valuation of Non-Cash Consideration. If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution, or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors. In the event of a merger or other acquisition of the Company by another entity, the Distribution date shall be deemed to be the date such transaction closes.
SECTION 5. CONVERSION. The Series D Preferred Stock shall not be convertible into Common Stock and have no other conversion rights except as specifically set forth below:
Conversion. The “Conversion Ratio” per share of the Series D Preferred Stock in connection with any Conversion shall be at a ratio of 1:10 , meaning every (1) one Preferred D share shall convert into 10 shares of Common Stock of the Company (the “Conversion”). Holders of Class D Preferred Shares shall have the right, exercisable at any time and from time to time (unless otherwise prohibited by law, rule or regulation), to convert any or all their shares of the Class D Preferred Shares into Common Stock at the Conversion Ratio.
(b) Taxes. The Company shall not be required to pay any tax which may be payable in respect to any transfer involved in the issue and delivery of shares of Common Stock upon conversion in a name other than that in which the shares of the Series D Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid. The Company shall withhold from any payment due whatsoever in connection with the Series D Preferred Stock any and all required withholdings and/or taxes the Company, in its sole discretion deems reasonable or necessary, absent an opinion from Holder’s accountant or legal counsel, acceptable to the Company in its sole determination, that such withholdings and/or taxes are not required to be withheld by the Company.
(c) Fractional Shares. If any Conversion of Series D Preferred Stock would result in the issuance of a fractional share of Common Stock (aggregating all shares of Series D Preferred Stock being converted pursuant to each Conversion), such fractional share shall be rounded up to the nearest whole share and the Holder shall be entitled to receive, in lieu of the final fraction of a share, one additional whole share of Common Stock.
(d) Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Series D Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of the Series D Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series D Preferred Stock, the Company will within a reasonable time period make a good faith effort to take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.
(e) Effect of Conversion. On any Conversion Date, all rights of any Holder with respect to the shares of the Series D Preferred Stock so converted, including the rights, if any, to receive distributions of the Company’s assets (including, but not limited to, the Liquidation Preference) or notices from the Company, will terminate, except only for the rights of any such Holder to receive certificates (if applicable) for the number of shares of Common Stock into which such shares of the Series D Preferred Stock have been converted.
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SECTION 6. VOTING. The Holder of each share of Series D Preferred Stock shall have such number of votes as is determined by multiplying (a) the number of shares of Series D Preferred Stock held by such holder, and (b) 25,000. Such voting calculation is hereby authorized by the Company and the Company acknowledges such calculation may result in the total number of possible votes cast by the Series D Holders and all other classes of the Company’s common stock in any given voting matter exceeding the total aggregate number of shares which this Company shall have authority to issue. With respect to any shareholder vote, such holder shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled, notwithstanding any provision hereof, to notice of any stockholders’ meeting in accordance with the Bylaws of this Corporation, and shall be entitled to vote, together with holders of Common Stock, with respect to any question upon which holders of Common Stock have the right to vote. The holders of Series D Preferred Stock shall vote together with all other classes and series of common and preferred stock of the Company as a single class on all actions to be taken by the Common Stock shareholders of the Company, except to the extent that voting as a separate class or series is required by law.
SECTION 7. REDEMPTION. The Series D Preferred Stock shall have no redemption rights.
SECTION 8. PROTECTIVE PROVISIONS. In addition to any other rights provided by law, at any time any shares of Series D Preferred Stock are outstanding, as a legal party in interest, the Company, through action directly initiated by the Company’s Board of Directors or indirectly initiated by the Company’s Board of Directors through judicial action or process, including any action by the shareholders of the Company’s Common Stock, shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, take any of the following actions without first obtaining the affirmative written consent of 100% of the Series D Holders:
(a) Increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series D Convertible Preferred Stock;
(b) Effect an exchange, reclassification, or cancellation of all or a part of the Series D Convertible Preferred Stock, but excluding a stock split or reverse stock split of the Company’s Common Stock or Preferred Stock;
(c) Effect an exchange, or create a right of exchange, of all or part of the shares of another class of shares into shares of Series D Convertible Preferred Stock;
(d) Alter or change the rights, preferences or privileges of the shares of Series D Preferred Stock so as to affect adversely the shares of such series, including the rights set forth in this Designation;
(e) Amend, alter or repeal any provision of the Articles of Incorporation or Bylaws of the Company; or
(f) Designate any new class of preferred stock, nor sell or issue in any way, shape or form, any additional shares of preferred stock other than shares in those classes of preferred stock already so designated as of the date hereof, including but not limited to, any shares of preferred stock which are, as of the date of this Certificate of Designation, authorized but of which no shares are issued or outstanding.
For clarification, issuances of additional authorized shares of Series D Preferred under the terms herein shall not require the authorization or approval of the existing shareholders of any other class of preferred Stock.
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PROVIDED, HOWEVER, that the Company may, by any means authorized by law and without any vote of the Holders of shares of the Series D Preferred Stock, make technical, corrective, administrative or similar changes in this Certificate of Designation that do not, individually or in the aggregate, adversely affect the rights or preferences of the Holders of shares of the Series D Preferred Stock.
SECTION 9. PREEMPTIVE RIGHTS. Holders of Series D Preferred Stock and holders of Common Stock shall not be entitled to any preemptive, subscription or similar rights in respect to any securities of the Company, except as specifically set forth herein or in any other document agreed to by the Company.
SECTION 10. REPORTS. The Company shall mail to all holders of Series D Preferred Stock those reports, proxy statements and other materials that it mails to all of its holders of Common Stock.
SECTION 11. NOTICES. In addition to any other means of notice provided by law or in the Company’s Bylaws, any notice required by the provisions of this Certificate of Designation to be given to the holders of Series D Preferred Stock shall be deemed given if deposited in the United States mail, postage prepaid, and addressed to each Holder of record at such Holder’s address appearing on the books of the Company.
SECTION 12. MISCELLANEOUS.
(a) The headings of the various sections and subsections of this Certificate of Designation are for convenience of reference only and shall not affect the interpretation of any of the provisions of this Certificate of Designation.
(b) Whenever possible, each provision of this Certificate of Designation shall be interpreted in a manner as to be effective and valid under applicable law and public policy. If any provision set forth herein is held to be invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions of this Certificate of Designation. No provision herein set forth shall be deemed dependent upon any other provision unless so expressed herein. If a court of competent jurisdiction should determine that a provision of this Certificate of Designation would be valid or enforceable if a period of time were extended or shortened, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law.
(c) The Company will provide to the Holders of the Series D Preferred Stock all communications sent by the Company to the holders of the Common Stock.
(d) Except as may otherwise be required by law, the shares of the Series D Preferred Stock shall not have any powers, designations, preferences or other special rights, other than those specifically set forth in this Certificate of Designations.
(e) Shares of the Series D Preferred Stock converted into Common Stock shall be retired and canceled and shall have the status of authorized but unissued shares of preferred stock of the Company undesignated as to any specific series and may with any and all other authorized but unissued shares of preferred stock of the Company be designated or re-designated and issued or reissued, as the case may be, as part of any series of preferred stock of the Company.
(f) Notwithstanding the above terms and conditions of this Certificate of Designation, the Liquidation Preference and the dollar amounts and share numbers set forth herein shall be subject to adjustment, as appropriate, whenever there shall occur a stock split, stock dividend, combination, reclassification or other similar event involving shares of the Series D Preferred Stock. Such adjustments shall be made in such manner and at such time as the Board of Directors in good faith determines to be equitable in the circumstances, any such determination to be evidenced in a resolution duly adopted by the Board of Directors. Upon any such equitable adjustment, the Company shall promptly deliver to each Holder a notice describing in reasonable detail the event requiring the adjustment and the method of calculation thereof and specifying the increased or decreased Liquidation Preference following such adjustment.
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(g) With respect to any notice to a Holder required to be provided hereunder, such notice shall be mailed to the registered address of such Holder, and neither failure to mail such notice, nor any defect therein or in the mailing thereof, to any particular Holder shall affect the sufficiency of the notice or the validity of the proceedings referred to in such notice with respect to the other Holders or affect the legality or validity of any redemption, conversion, distribution, rights, warrant, reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation, winding-up or other action, or the vote upon any action with respect to which the Holders are entitled to vote. All notice periods referred to herein shall commence on the date of the mailing of the applicable notice. Any notice which was mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Holder receives the notice.
IN WITNESS WHEREOF, the Company has caused this statement to be duly executed by its sole director this 25th day of November 2015.
| ALKAME HOLDINGS, INC. | |
| By: /s/ Robert K. Eakle | |
| Robert K. Eakle - Sole-Director | |
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RETROACTIVE EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated November 25, 2015 is effective as of the 1st day of January, 2015 by and between Alkame Holdings, Inc., a Nevada corporation (together with its successors and assigns referred to herein as the "Corporation"), and Robert K. Eakle, 3651 Lindell Rd, Suite D356, Las Vegas, NV 89103 (the "Executive").
W I T N E S E T H:
WHEREAS, the Corporation desires to recognize the employment of Executive as the Chief Executive Officer for 2015 under the terms and conditions hereof and has authorized and approved the execution of this Agreement; and
WHEREAS, Executive desires to be employed by the Corporation and has requested that the Corporation retroactively apply the terms and conditions hereinafter provided for 2015 and, in exchange, Executive will agree to enter into a new employment agreement that will govern the parties’ relationship for 2016 through 2017;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, the parties agree as follows:
| 1. | EMPLOYMENT, DUTIES AND ACCEPTANCE. |
| 1.1 | SERVICES. The Corporation hereby employs Executive, for the Term (as hereinafter defined in Section 2 hereof), to render services to the business and affairs of the Corporation in connection therewith, and shall perform such duties as directed by the Board of Directors of the Corporation from time to time, in their reasonable discretion, and shall perform such other duties as shall be consistent with the responsibilities of such office (collectively the "Services"). Executive shall use his best efforts, skill and abilities to promote the interests of the Corporation and its subsidiaries. |
| 1.2 | ACCEPTANCE. Executive hereby accepts such employment and agrees to render the Services. |
| 1.3 | REPRESENTATIONS OF THE EXECUTIVE. The Executive represents and warrants to the Corporation that his execution and delivery of this Agreement, his performance of the Services hereunder and the observance of his other obligations contemplated hereby will not (i) violate any provisions of or require the consent or approval of any party to any agreement, letter of intent or other document to which he is a party or (ii) violate or conflict with any arbitration award, judgment or decree or other restriction of any kind to or by which he is subject or bound. |
| 2. | TERM OF EMPLOYMENT. |
The term of Executive's employment under this Agreement (the "Term") shall commence on January 1, 2015 and shall terminate on December 31, 2015.
| 3. | BASE SALARY AND EXPENSE REIMBURSEMENT. |
| 3.1 | BASE SALARY. During the Term, as compensation for the Services, the Corporation agrees to pay Executive a minimum base salary ("Base Salary") at the annual rate of $120,000 for the period from January 1, 2015 through December 31, 2015. Such Base Salary shall be subject to withholding and other applicable taxes, payable during the term of this Agreement in accordance with the Corporation's customary payment practices. |
| 3.2 | STOCK GRANT. The Corporation will also issue to the Executive one million (1,000,000) shares of the Corporation’s newly created Series D Preferred Stock. |
| 3.3 | BUSINESS EXPENSE REIMBURSEMENT. Upon submission to, and approval by an officer of the Corporation designated by the Board of Directors of the Corporation, of a statement of expenses, reports, vouchers or other supporting information, which approval shall be granted or withheld based on the Corporation's policies in effect at such time, the Corporation shall promptly reimburse Executive for all reasonable business expenses actually incurred or paid by him during the Term or renewals thereof in the performance of the Services, including, but not limited to, expenses for entertainment, travel and similar items. |
| 4. | INDEMNIFICATION. |
The Corporation shall indemnify the Executive (and his heirs, executors and administrators) to the fullest extent permitted under the law of its state of incorporation against all expenses and liabilities reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which the Executive may be involved by reason of his having been a director or officer of the Corporation or any subsidiary thereof. Such expenses and liabilities shall include, but not be limited to, judgments, court costs and attorneys' fees and the cost of reasonable settlements, such settlements to be approved by the Board if such action is brought against the Executive in his capacity as a director or officer of the Corporation or any subsidiary thereof. The Corporation shall, upon the request of the Executive, advance to the Executive such amounts as necessary to cover expenses, including without limitation legal fees and expenses, incurred by the Executive in connection with any suit or proceeding in which the Executive may be involved by reason of his being or having been a director or officer of the Corporation or of any subsidiary thereof. Such indemnity and advance of expenses, however, shall not extend to matters as to which the Executive is finally adjudged to be liable for willful misconduct in the performance of his duties.
| 5. | RIGHT OF CONVERSION |
If the Corporation is unable to pay any portion of its cash compensation as required by Section 3 hereof when due because of insufficient liquidity, then (i) the Corporation shall inform Executive; and (ii) Executive shall, in his sole discretion, be entitled at any time to convert such cash compensation, or any portion thereof, into shares of the Corporation’s Common Stock or Series D Preferred Stock, as he may choose. The number of shares shall be determined by using the closing price of the Corporation’s Common Stock on the trading day preceding the date of conversion.
| 6. | ARBITRATION. |
Any controversy, claim, or dispute between the parties, directly or indirectly, concerning this Employment Agreement or the breach hereof, or the subject matter hereof, including questions concerning the scope and applicability of this arbitration clause, shall be finally settled by arbitration in Las Vegas, Nevada pursuant to the rules then applying of the American Arbitration Association. The arbitrators shall consist of one representative selected by the Corporation, one representative selected by the Executive and one representative selected by the first two arbitrators The parties agree to expedite the arbitration proceeding in every way, so that the arbitration proceeding shall be commenced within thirty (30) days after request therefore is made, and shall continue thereafter, without interruption, and that the decision of the arbitrators shall be handed down within thirty (30) days after the hearings in the arbitration proceedings are closed. The arbitrators shall have the right and authority to assess the cost of the arbitration proceedings and to determine how their decision or determination as to each issue or matter in dispute may be implemented or enforced. The decision in writing of any two of the arbitrators shall be binding and conclusive on all of the parties to this Agreement. Should either the Corporation or the Executive fail to appoint an arbitrator as required by this Section 12 within thirty (30) days after receiving written notice from the other party to do so, the arbitrator appointed by the other party shall act for all of the parties and his decision in writing shall be binding and conclusive on all of the parties to this Employment Agreement. Any decision or award of the arbitrators shall be final and conclusive on the parties to this Agreement; judgment upon such decision or award may be entered in any competent Federal or state court located in the United States of America; and the application may be made to such court for confirmation of such decision or award for any order of enforcement and for any other legal remedies that may be necessary to effectuate such decision or award.
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| 7. | NOTICES. |
All notices, requests, consents and other communications required or permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by mail first-class, postage prepaid, by registered or certified mail shall be deemed to have been given on the date sent), to the parties at their respective addresses herein set forth or to such other address as either party shall designate by notice in writing to the other in accordance herewith. Copies of all notices shall be sent to the addresses described in the recitals unless noticed in writing of a change.
| If to Company: | If to Employee: | |
| Alkame Holdings, Inc. | Robert K. Eakle | |
| 3651 Lindell Rd., Suite D356 | 3651 Lindell Rd, Suite D356 | |
| Las Vegas, NV 89103 | Las Vegas, NV 89103 |
| 8. | GENERAL. |
| 8.1 | GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the local laws of the State of Nevada applicable to agreements made and to be performed entirely in Nevada. |
| 8.2 | CAPTIONS. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. |
| 8.3 | ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither party shall be bound by or liable for any alleged representation promise or inducement not so set forth. |
| 8.4 | SEVERABILITY. If any of the provisions of this Agreement shall be unlawful, void, or for any reason, unenforceable, such provision shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining portions of this Agreement. |
| 8.5 | WAIVER. The waiver by any party hereto of a breach of any provision of this Agreement by any other party shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision hereof. |
| 8.6 | COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement. |
| 8.7 | ASSIGNABILITY. This Agreement, and Executive's rights and obligations hereunder, may not be assigned by Executive. The Corporation may assign its rights, together with its obligations, hereunder in connection with any sale, transfer or other disposition of all or substantially all of its business or assets; in any event the rights and obligations of the Corporation hereunder shall be binding on its successors or assigns, whether by merger, consolidation or acquisition of all or substantially all of its business or assets; provided, however, that any such assignment shall not release the Corporation from its obligations hereunder. This Agreement shall inure to the benefit of, and be binding upon, the Executive and his executors, administrators, heirs and legal representatives. |
| 8.8 | AMENDMENT. This Agreement may be amended, modified, superseded, cancelled, renewed or extended and the terms or covenants hereof may be waived, only by a written instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving compliance. No superseding instrument, amendment, modification, cancellation, renewal or extension hereof shall require the consent or approval of any person other than the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no matter affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| ATTEST: COMPANY | EXECUTIVE | |
| By: /s/ Robert K. Eakle | By: /s/ Robert K. Eakle | |
| Name: Robert K. Eakle | Name: Robert K Eakle | |
| Title: Chief Executive Officer | ||
| 4 |
RETROACTIVE CONSULTING AGREEMENT
This Retroactive Consulting Agreement (hereinafter "Agreement") dated as of November 25, 2015, between ALKAME HOLDINGS, INC., a corporation organized and existing under the laws of the State of Nevada (hereinafter "Corporation") and Kaufman & Associates Inc. (hereinafter "Consultant"), and Craig Kaufman (hereinafter "Kaufman"), the President of Consultant. Collectively hereinafter referred to as "Parties."
WHEREAS, the Corporation desires to recognize the engagement of Consultant for 2015 under the terms and conditions hereof and has authorized and approved the execution of this Agreement; and
WHEREAS, Consultant desires to be engaged by the Corporation and has requested that the Corporation retroactively apply the terms and conditions hereinafter provided for 2015 and, in exchange, Consultant will agree to enter into a new consulting agreement that will govern the Parties’ relationship for 2016 through 2017;
NOW, THEREFORE, in consideration of the mutual understanding set forth herein, the Parties agree as follows:
1. Consultant's Duties: The Corporation hereby engages the Consultant as its business and financial consultant. Subject at all times to the control and direction of the Corporation’s Chief Executive Officer, (hereinafter “Management”), the Consultant shall have the duties as the general advisor and consultant to Management on all matters pertaining to the business and to render all other services relevant thereto. The Consultant, by Kaufman, shall perform all other duties that may be reasonably assigned to it by Management provided said duties be consistent with the prestige and responsibility of Kaufman's position. The Consultant shall, through its agents, servants and employees, devote its best efforts at all times necessary to perform its duties and to advance the Corporation's best interests. The Consultant and the Corporation acknowledge that the Consultant and its agents, servants and employees have other business interests and shall not be required to devote its exclusive time and attention to the performance of its duties hereunder.
2. Term: The term of Consultant's employment under this Agreement (the "Term") shall commence on January 1, 2015 and shall terminate on December 31, 2015.
3. Compensation: For all services rendered by the Consultant under this Agreement, the Corporation shall pay to Consultant as compensation (the “Base Compensation”) at the annual rate of $120,000 for the period from January 1, 2015 through December 31, 2015. In addition, the Corporation will also issue to the Consultant one million (1,000,000) shares of the Corporation’s newly created Series D Preferred Stock.
4. Expenses: Consultant will be reimbursed by the Corporation for all reasonable business expenses incurred by the Consultant in the performance of its duties. Said reimbursement shall be made no less frequently than monthly upon submission by the Consultant of a written request for same.
5. Indemnification: The Corporation shall provide the Consultant (including his heirs, executors and administrators) with coverage under a liability insurance policy at the Corporation's expense to the same extent as provided for directors, officers or trustees of the Corporation. In addition, the Corporation shall indemnify the Consultant (and his heirs, executors and administrators) against all expenses and liabilities reasonably incurred by it in connection with or arising out of any action, suit or proceeding in which the Consultant may be involved by reason of its having been a consultant the Corporation or any subsidiary thereof. Such expenses and liabilities shall include, but not be limited to, judgments, court costs and attorneys' fees and the cost of reasonable settlements, such settlements to be approved by the Board if such action is brought against the Consultant. The Corporation shall, upon the request of the Consultant, advance to Consultant such amounts as necessary to cover expenses, including without limitation legal fees and expenses, incurred by the Consultant in connection with any suit or proceeding in which the Consultant may be involved by reason of his being a consultant of the Corporation or of any subsidiary thereof. Such indemnity and advance of expenses, however, shall not extend to matters as to which the Consultant is finally adjudged to be liable for willful misconduct in the performance of its duties.
6. Right of Conversion: If the Corporation is unable to pay any portion of its cash compensation as required this Agreement when due because of insufficient liquidity, then (i) the Corporation shall inform Consultant; and (ii) Consultant shall, in its sole discretion, be entitled at any time to convert such cash compensation, or any portion thereof, into shares of the Corporation’s Common Stock or Series D Preferred Stock, as it may choose. The number of shares shall be determined by using the closing price of the Corporation’s Common Stock on the trading day preceding the date of conversion.
7. Arbitration: Any controversy, claim, or dispute between the parties, directly or indirectly, concerning this Agreement or the breach hereof, or the subject matter hereof, including questions concerning the scope and applicability of this arbitration clause, shall be finally settled by arbitration in Las Vegas, Nevada pursuant to the rules then applying of the American Arbitration Association. The arbitrators shall consist of one representative selected by the Corporation, one representative selected by the Consultant and one representative selected by the first two arbitrators The parties agree to expedite the arbitration proceeding in every way, so that the arbitration proceeding shall be commenced within thirty (30) days after request therefore is made, and shall continue thereafter, without interruption, and that the decision of the arbitrators shall be handed down within thirty (30) days after the hearings in the arbitration proceedings are closed. The arbitrators shall have the right and authority to assess the cost of the arbitration proceedings and to determine how their decision or determination as to each issue or matter in dispute may be implemented or enforced. The decision in writing of any two of the arbitrators shall be binding and conclusive on all of the parties to this Agreement. Should either the Corporation or the Consultant fail to appoint an arbitrator as required by this Section 12 within thirty (30) days after receiving written notice from the other party to do so, the arbitrator appointed by the other party shall act for all of the parties and his decision in writing shall be binding and conclusive on all of the parties to this Employment Agreement. Any decision or award of the arbitrators shall be final and conclusive on the parties to this Agreement; judgment upon such decision or award may be entered in any competent Federal or state court located in the United States of America; and the application may be made to such court for confirmation of such decision or award for any order of enforcement and for any other legal remedies that may be necessary to effectuate such decision or award.
8. Notices: All notices, requests, consents and other communications required or permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by mail first-class, postage prepaid, by registered or certified mail shall be deemed to have been given on the date sent), to the parties at their respective addresses herein set forth or to such other address as either party shall designate by notice in writing to the other in accordance herewith. Copies of all notices shall be sent to the addresses described in the recitals unless noticed in writing of a change.
| If to Company: | If to Consultant: | |
| Alkame Holdings, Inc. | Craig Kaufman | |
| 3651 Lindell Rd., Suite D356 | 1341 W. Fullerton Ave. #212 | |
| Las Vegas, NV 89103 | Chicago, IL 60614 |
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9. General:
Governing Law: This Agreement shall be governed by and construed and enforced in accordance with the local laws of the State of Nevada applicable to agreements made and to be performed entirely in Nevada.
Captions: The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Entire Agreement: This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither party shall be bound by or liable for any alleged representation promise or inducement not so set forth.
Severability: If any of the provisions of this Agreement shall be unlawful, void, or for any reason, unenforceable, such provision shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining portions of this Agreement.
Waiver: The waiver by any party hereto of a breach of any provision of this Agreement by any other party shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision hereof.
Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.
Assignability: This Agreement, and Consultant's rights and obligations hereunder, may not be assigned by Consultant. The Corporation may assign its rights, together with its obligations, hereunder in connection with any sale, transfer or other disposition of all or substantially all of its business or assets; in any event the rights and obligations of the Corporation hereunder shall be binding on its successors or assigns, whether by merger, consolidation or acquisition of all or substantially all of its business or assets; provided, however, that any such assignment shall not release the Corporation from its obligations hereunder. This Agreement shall inure to the benefit of, and be binding upon, the Consultant and his executors, administrators, heirs and legal representatives.
Amendment: This Agreement may be amended, modified, superseded, cancelled, renewed or extended and the terms or covenants hereof may be waived, only by a written instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving compliance. No superseding instrument, amendment, modification, cancellation, renewal or extension hereof shall require the consent or approval of any person other than the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no matter affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| ATTEST: COMPANY | CONSULTANT | |
| By: /s/ Robert K. Eakle | By: /s/ Craig Kaufman | |
| Name: Robert K. Eakle | Name: Craig Kaufman | |
| Title: Chief Executive Officer | Title: Owner | |
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