CONSULTING AGREEMENT
--------------------
This CONSULTING AGREEMENT (this "Agreement") is made and entered into as of
, 2001, by and between Anza Properties, Inc. (hereinafter
referred to as the "Company") and Xxxxxxxx X. Xxxxxxx (hereinafter referred to
as the "Consultant") (collectively, the "Parties").
R E C I T A L S
---------------
WHEREAS, Consultant is a licensed attorney in the state of California who has
provided legal services and related advice to the Company;
WHEREAS, the Company wishes to engage the services of Consultant to provide
legal and general business consulting services (the "Consulting Services").
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
Parties hereto hereby agree as follows:
1. CONSULTING SERVICES
Consultant hereby agrees to utilize its best efforts in performing the
Consulting Services. It is understood that Consultant shall provide
approximately 20 hours per week on matters for the Company, eight hours of,
which will involve the Consultant physically being at the Company's principal
place of business. The Company understands that this amount of time may vary
and that the Consultant may perform Consulting Services for other companies.
These consulting services shall include the negotiation and documentation of
real estate transactions; the drafting of real estate management and similar
contracts; assistance in analyzing the financial viability of potential real
estate projects and other general legal and business matters. It is agreed that
the provision of these services is on behalf of the holder of the Bonds issued
by the Company and shall not be construed as the legal representation of the
Company or any of its affiliated companies.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect commencing upon the date
hereof and concluding 12 months thereafter ("Termination Date"). On or before
the Termination Date the parties shall mutually discuss whether an extension of
this Agreement under the terms contained herein or different terms shall be
appropriate.
3. COMPENSATION TO CONSULTANT
The Consultant's compensation for the Consulting Services shall be as
follows:
(a) $20,000 payable upon execution of this Agreement;
(b) Commencing November 1, 2001 the Consultant shall receive $5,000 per
month for eight consecutive months. E-Net Financial guarantees the payment of
this amount.
(c) One million options in the form attached hereto as Exhibit "A".
-----------
4. INDEPENDENT CONTRACTOR
Both the Company and the Consultant agree that the Consultant will act as
an independent contractor in the performance of his duties under this Agreement.
Nothing contained in this Agreement shall be construed to imply that Consultant,
or any consultant, agent or other authorized representative of Consultant, is a
partner, joint venture participant, agent, officer or consultant of Company.
5. MISCELLANEOUS
(a) Waiver. No waiver by a party of any provision of this Agreement
-------
shall be considered a waiver of any other provision or any subsequent breach of
the same or any other provision. The exercise by a party of any remedy provided
in this Agreement or at law shall not prevent the exercise by that party of any
other remedy provided in this Agreement or at law.
(b) Assignment. This Agreement shall be binding upon and inure to the
-----------
benefit of the Parties hereto and no assignment shall be allowed without first
obtaining the written consent of the non-assigning party.
(c) Severability. In any condition or covenant herein contained is
-------------
held to be invalid or void by any court of competent jurisdiction, the same
shall be deemed severable form the remainder of this Agreement and shall in no
way effect the other covenants and conditions contained herein.
(d) Amendment. This Agreement may be amended only by a written agreement
----------
executed by all Parties hereto.
(e) Conflict of Interest. Both Consultant and the Company (the "Parties")
-----------------------
hereby agree and acknowledge that Xxxxxxxx X. Xxxxxxx and the law firm of Xxxx
Xxxxxxx Xxxxxxxxx, LLP ("SPM"), is representing only the Consultant in the
drafting of this Agreement, as it has a conflict of interest in representing
both the Consultant and the Company. The Company has acknowledged that it has
retained independent counsel to review this Agreement prior to its execution.
[SIGNATURES FOLLOW NEXT PAGE]
IN WITNESS WHEREOF, the Parties hereto have placed their signatures hereon
on the day and year first above written.
"COMPANY" "CONSULTANT"
ANZA PROPERTIES, INC. Xxxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
By: Xxxxx Xxxxxxxx Xxxxxxxx X. Xxxxxxx
Its: President
FOR THE LIMITED PURPOSE OF THE GUARANTEE SET FORTH HEREIN:
E-NET XXXXXXXXX.XXX, INC.
/s/ Xxxxx Xxxxxxxx
By: Xxxxx Xxxxxxxx
Title: President & CEO
EXHIBIT "A"
-----------
FORM OF
STOCK OPTION AGREEMENT
EXHIBIT "A"
-----------
OPTION NO._________
STOCK OPTION AGREEMENT
----------------------
This STOCK OPTION AGREEMENT is made and entered into , 2001,
by and between E-Net Xxxxxxxxx.xxx, Inc. ("Company"), and Xxxxxxxx X. Xxxxxxx,
an individual (referred to herein as the "Optionee"), with reference to the
following recitals of facts:
WHEREAS, the Company desires to grant the Optionee a stock option
("Option") to purchase shares of common stock of the Company (the "Shares") upon
the terms and conditions hereinafter stated; and
NOW, THEREFORE, in consideration of the covenants herein set forth, the parties
hereto agree as follows:
1. Shares; Price. The Company hereby grants to Optionee the right to
---------------
purchase, upon and subject to the terms and conditions herein stated, one
million Shares for cash at the closing price of the Shares as of the date of
this Agreement, such price being not less than the fair market value per share
of the Shares covered by these Options as of the date hereof.
2. Term of Option. This Option shall expire, and all rights hereunder
---------------
to purchase the Shares shall terminate five years from the date hereof.
3. Exercise. This Option shall be exercised by delivery to the Company
--------
of: (a) a written notice of exercise stating the number of Shares being
purchased (in whole shares only) and such other information set forth on the
form of Notice of Exercise attached hereto as Appendix A; (b) a check or cash in
----------
the amount of the purchase price of the Shares covered by the notice. This
Option shall be exercisable in its entirety upon $2 million being converted to
equity in the Company the contemplated bond offering. All amounts less than
that shall be exercisable on a pro-rata basis (i.e., if $1 from the $5 million
offering is converted into equity in E-net from the bond offering, then 20% of
the subject options shall be exercisable, regardless of whether the subject
listing occurs).
4. Termination of Independent Contractor Status. If Optionee shall
-------------------------------------------------
cease to serve as an independent contractor whether voluntarily or
involuntarily, other than by the conclusion of the term of Optionee's written
Consulting Agreement, then Optionee shall retain all rights set forth herein for
vested Options and all non vested options shall terminate and be of no further
force or effect.
5. Recapitalization. The number of Shares covered by this Option, shall
----------------
not be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a subdivision or consolidation of shares or the
payment of a stock dividend, or any other increase or decrease in the number of
such shares affected without receipt of consideration by the Company; provided
however that the conversion of any convertible securities of the Company shall
not be deemed having been "effected without receipt of consideration by the
Company. The exercise price of this Option shall not be adjusted upon such a
subdivision or consolidation of the shares. The number of such Shares shall be
increased/decreased on a pro rata basis in accordance with any stock split,
provided, however, in the event of a reverse stock split, the amount of options
shall not be reduced below 60% of the amount issued under this option and under
no circumstances shall the exercise price of this option be adjusted. Provided,
however at no time shall the aggregate shares exercisable under this Option
equal greater than 5% of the total shares outstanding on a fully diluted basis
(such calculation to be performed at the time of the initial exercise).
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets of the Company, all options
granted herein shall immediately vest and be exercisable. Subject to any
required action by the stockholders of the Company, if the Company shall be the
surviving entity in any merger or consolidation, this Option thereafter shall
pertain to and apply to the securities to which a holder of Shares equal to the
Shares subject to this Option would have been entitled by reason of such merger
or consolidation, and the vesting provisions of Section 3 shall continue to
apply.
6. Registration Rights. The Optionee shall have the right to register
--------------------
Shares covered by vested options on Form S-8 pursuant to Optionee's Consulting
Agreement to which this Option is an Exhibit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
E-NET XXXXXXXXX.XXX, INC.
BY:
ITS:
XXXXXXXX XXXXXXX
_________________________________
Xxxxxxxx X. Xxxxxxx, Optionee
APPENDIX "A"
------------
FORM OF
NOTICE OF EXERCISE
APPENDIX "A"
------------
NOTICE OF EXERCISE
E-Net Xxxxxxxxx.xxx, Inc
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(date)
RE: EXERCISE OF STOCK OPTION
Notice is hereby given pursuant to Section 3 of my Consulting Agreement
that I elect to purchase the number of shares set forth below at the exercise
price set forth in my option agreement:
Stock Option dated: ______________________
Number of shares being purchased: ______________________
Option Exercise Price: $_____________________
A check in the amount of the aggregate price of the shares being purchased
is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof.
Further, I understand that, as a result of this exercise of rights, I will
recognize income in an amount equal to the amount by which the fair market value
of the Shares exceeds the exercise price. I agree to report such income in
accordance with then applicable law and to cooperate with Company in
establishing the withholding and corresponding deduction to the Company for its
income tax purposes.
I agree to provide to the Company such additional documents or information
as may be required by law.
(Signature)
(Name of Optionee)
