Exhibit 10.4
CONSULTING AGREEMENT AMENDMENT #2
This Consulting Agreement (the "Agreement") is made and entered into this
17th day of April 2002, by and between Xxxxx X. Xxxxxx, Xx. ("KBH") and Gump,
Inc., a Delaware corporation (the "Client").
Recitals
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A. KBH is the President and owner of Securities Transfer Corporation
("STC").
B. Securities Transfer Corporation is a Transfer Agent and Registrar
registered with the Securities and Exchange Commission (the "SEC") and
offers transfer agent services and Xxxxx filing services for public
companies.
C. KBH is willing to provide consulting services to the Client and to
make the services of STC available to the Client on the terms and
conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. KBH Retained. The Client hereby retains KBH, and KBH hereby agrees to
make its STC services available to the Client under the terms and
conditions hereinafter set forth.
2. Duties. During the term of this Agreement, the duties set forth in
this Section 2 shall be performed.
STC's will be responsible for accomplishing the following:
(i) Assist in Edgarizing and filing all required SEC filings for the
client which may include 10-Q's, 10-K and form S-8 Registration
Statements as filed with the Securities and Exchange Commission
on behalf of the Client; and
(ii) Perform the Transfer Agent and Registrar functions on behalf of
the client.
3. Compensation. As compensation for KBH entering into this Agreement and
for the services to be rendered hereunder, the Client shall issue to
KBH 100,000 shares of common stock ($0.01 par value) of the company.
The 100,000 shares are to be registered shares and the company agrees
to file a Form S-8 Registration Statement with the Securities and
Exchange Commission as expeditiously as possible.
4. Expenses. Neither the Client nor the Public Company shall be
responsible for paying or reimbursing KBH for his services provided in
connection with the performance of duties within the scope of Sections
2 above for or on behalf of the Client. Otherwise, KBH shall detail in
writing and submit to the client a budget for the projected costs and
expenses for such project. Upon the approval of the Client as to any
particular project and the related budget, KBH shall be authorized to
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perform or cause to be performed the work necessary for such project
and to incur costs as set forth in the budget. In addition, KBH is
authorized to incur any other unanticipated costs and expenses
associated with such project not specifically set forth in such
budget, except that any cost in excess of $100 not already approved in
a budget shall be subject to approval by the Client. The Client
understands that in some cases the provider of certain services and
goods may ask for payment in advance and for certain major
disbursements, and in such case invoices from outside providers will
be sent directly to the Client.
5. Term. This Agreement shall commence on the execution date of this
Agreement and shall continue for a term of 6 months, unless terminated
earlier pursuant to Section 6 below.
6. Termination. This Agreement shall terminate:
(A) If there has been a material breach of this Agreement and such
breach has not been cured by the breaching party on or before 30
days from the date of the receipt of a written notice of the
breach from the non-breaching party;
(B) Upon the mutual written agreement of the parties.
7. Remedies. Upon termination of this Agreement for any reason, this
Agreement shall become null and void and have no further force or
effect. KBH shall mail to the Client all documents in its possession
or control concerning the Client, as the Client shall request. If this
Agreement is terminated by reasons of the breach of any provision
hereof, the non-breaching party may pursue any and all remedies at law
or in equity.
8. Accuracy of Information and Indemnification. The Client agrees to
furnish to KBH truthful and accurate information in all material
respects. The Client agrees to cooperate with KBH in the performance
of KBH's consulting services. The Client agrees to indemnify and hold
harmless KBH from any loss, liability, damages, costs and expenses
(including attorneys' and other professional fees) that KBH may incur
as a result of the Client furnishing to KBH any untruthful or
inaccurate information.
9. Miscellaneous
(A) Assignability. Unless otherwise agreed to in writing by both
parties hereto, the rights, obligations and benefits established
by this Agreement shall be non-assignable by either of the
parties hereto and any such attempt of assignment shall be null
and void and of no effect whatsoever.
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(B) Relationship of the Parties. KBH shall not be considered
employees of the Client. Furthermore, the parties agree KBH shall
be considered an independent contractor for all purposes.
(C) Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof, and may
not be changed except by a writing signed by the party against
whom enforcement or discharge is sought.
(D) Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by the other
party.
(E) Construction of Language. The language used in this Agreement
shall be construed as a whole according to its fair meaning, and
not strictly for nor against either party.
(F) Captions and Headings. The paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit or add to the meaning of any
provision of this Agreement.
(G) State Law. This Agreement, its interpretation and its application
shall be governed by the laws of the State of Texas.
(H) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
Execution and delivery of this Agreement by exchange of facsimile
copies bearing facsimile signature of a party shall constitute a
valid and binding execution and delivery of this Agreement by
such party. Such facsimile copies shall constitute enforceable
original documents.
(I) Costs. In the event of any legal proceeding between any of the
parties to enforce or defend the terms and rights set forth in
this Agreement, the prevailing party or parties shall be paid all
reasonable costs of such legal proceeding, including but not
limited to, attorneys' fees by the other party or parties.
(J) Notices and Waivers. Any notice or waiver required or permitted
to be given by the parties hereto shall be in writing and shall
be deemed to have been give, when delivered, 3 business days
after being mailed by certified or registered mail, faxed during
regular business hours of the recipient and there is confirmation
of receipt, or sent by prepaid full rate telegram to the
following addresses:
To KBH: To the Client:
Xxxxx X. Xxxxxx, Xx. Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxxx, #000 Gump & Company, Inc.
Xxxxxx, Xxxxx 00000 000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
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IN WITNESS WHERE OF, the parties have executed this Agreement to be
effective as of the day and year first above written notwithstanding the actual
date of signatures.
Xxxxx Xxxxxx
By: ____________________________________
Xxxxx X. Xxxxxx, Xx.
CLIENT:
Gump & Company, Inc.
By: ____________________________________
Xxxx Xxxxxxx
