CONSULTANT COMPENSATION AGREEMENT No. 2
THIS CONSULTANT COMPENSATION AGREEMENT (the "Plan") is made
this 6th day of January, 2000, among Xxxxxxxx Coach, Inc., a Delaware
corporation ("Xxxxxxxx"); and the following individuals who have executed and
delivered this Plan by the execution and delivery of the Counterpart Signature
Pages which are designated as Exhibits "A" through "F" hereof: S. Xxxxxxx
Xxxxxx, Esq.; Xxxxxxx Xxxxxx, Esq.; Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxxxxx Xxxxxxx (collectively, the "Consultants").
WHEREAS, the Board of Directors of Xxxxxxxx has adopted a
written compensation agreement for compensation of six individual Consultants
who are natural persons; and
WHEREAS, Xxxxxxxx has engaged the Consultants to provide
services at the request of and subject to the satisfaction of its management;
and
WHEREAS, the Consultants have provided services at the request
and subject to the approval of the management of Xxxxxxxx; and
WHEREAS, a general description of the nature of the services
performed and to be performed by the Consultants and the maximum value of such
services under this Plan are listed in the Counterpart Signature Pages and
exhibits thereto; and
WHEREAS, Xxxxxxxx and the Consultants intend that this Plan and
the services performed hereunder shall be made, requested and performed in
such a manner that this Plan shall be a "written compensation agreement" as
defined in Rule 405 of the Securities and Exchange Commission ("Commission")
pursuant to which Xxxxxxxx may issue "freely tradeable" shares (except as may
be limited by "affiliate" status) of its common stock as payment for services
rendered pursuant to an S-8 Registration Statement to be filed with the
Commission by Xxxxxxxx;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed:
Section 1
Compensation Plan
1.1 Employment. Xxxxxxxx hereby employs the Consultants and the
consultants hereby accept such employment, and have and will perform the
services requested by management of Xxxxxxxx to its satisfaction during the
term hereof. The services performed by the Consultants hereunder have been
and will be personally rendered by the Consultants, and no one acting for or
on behalf of the Consultants, except those persons normally employed by the
consultants in rendering services to others, such as secretaries, bookkeepers
and the like.
1.2 Independent Contractors. Regardless of the Consultants' status
as "employees" under Rule 405 of the Commission, all services rendered by the
Consultants hereunder have been rendered as independent contractors, and the
Consultants shall be liable for any FICA taxes, withholding or other similar
taxes or charges, and the Consultants shall indemnify and hold Xxxxxxxx
harmless therefrom; it is understood and agreed that the value of all such
items has been taken into account by the Consultants in computing the billable
rate for the services the Consultants have rendered and agreed to render to
Xxxxxxxx.
1.3 Term. All services performed at the request of Xxxxxxxx by the
Consultants have either been performed and completed, or shall be performed
within one year from the date hereof, at which time this Plan shall terminate,
unless extended by written agreement of Xxxxxxxx and the Consultants for one
additional year. If the Plan shall terminate, and options for unearned shares
have been exercised and said shares issued to either consultant pursuant to
this Plan, said shares shall be returned by Consultant(s) and canceled by
Xxxxxxxx within ten days of said termination.
1.4 Payment. Xxxxxxxx and the Consultants agree that Xxxxxxxx
shall pay the invoices of the Consultants for the services performed under
this Plan by the issuance of shares of its common stock at a price of $1.00
per share; provided, however, such shares of common stock shall be issued
pursuant to and shall be subject to the filing and effectiveness of a
Registration Statement on Form S-8 covering such shares with the Commission.
1.5 Invoices for Services. Each of the Consultants shall provide
Xxxxxxxx with written invoices detailing the services duly performed and/or
the retainer or flat fee for such services. Such invoices shall be paid by
Xxxxxxxx in accordance with Section 1.4 above, subject to the satisfaction of
the management of Xxxxxxxx that the services have been performed, and to the
extent performed, that the performance was in a satisfactory manner. The
submission of an invoice for the services performed by each of the Consultants
shall be deemed to be a subscription by the respective Consultants to purchase
shares of common stock of Xxxxxxxx at the price outlined in Section 1.4 above,
subject only to the filing and effectiveness of a Registration Statement on
Form S-8 covering such shares with the Commission.
1.6 Common Stock Price. To the extent deemed required or necessary
and for all purposes of this Plan, the Consultants shall have an "option"
covering such shares of common stock at the per share price set forth in
paragraph 1.4 above during the term hereof; the Consultants assume the risk of
any decrease in the per share price or value of the shares of common stock of
Xxxxxxxx that may be issued by Xxxxxxxx for services performed by the
Consultants hereunder, and the Consultants agree that any such decrease shall
in no way affect the rights, obligations or duties of the Consultants
hereunder.
1.7 Limitation on Services. None of the services rendered by the
Consultants and paid for by the issuance of shares of common stock of Xxxxxxxx
shall be services related to any "capital raising" transaction.
1.8 Delivery of Shares. On submission of an invoice by the
respective Consultants, and duly verified to the satisfaction of Xxxxxxxx, and
subject to the filing and effectiveness of a Registration Statement on Form
S-8 of the Commission covering such shares, one or more stock certificates
representing such shares shall be delivered to the respective Consultants at
the addresses listed on the Counterpart Signature Pages, unless another
address shall be provided to Xxxxxxxx in writing prior to the issuance of such
shares.
1.9 Adjustments in the Number of Shares of Common Stock and Price
Per Share. Xxxxxxxx and the Consultants agree that the per share price of
shares of common stock that may be issued by Xxxxxxxx to the Consultants for
services performed under this Plan has been arbitrarily set by Xxxxxxxx;
however, in the event Xxxxxxxx shall undergo a merger, consolidation,
reorganization, recapitalization, declare a stock dividend of its shares of
common stock or cause to be implemented a forward or reverse stock split which
affects the present number of issued and outstanding shares of common stock of
Xxxxxxxx prior to the issuance of shares to the Consultants, that the per
share price and the number of shares issuable to the Consultants for services
actually rendered hereunder after such event shall be appropriately adjusted
to reflect any such event.
1.10 Effective Date. The Effective Date of the Plan for each of the
Consultants shall be the date set forth on the respective Counterpart
Signature Pages.
Section 2
Representations and Warranties of Xxxxxxxx
Xxxxxxxx represents and warrants to, and covenants with, the
Consultants as follows:
2.1 Corporate Status. Xxxxxxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is licensed or qualified as a foreign corporation in all states in which
the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary.
2.2 Compensation Plan. The Board of Directors of Xxxxxxxx has duly
adopted a Compensation Plan as defined in Rule 405 of the Commission pursuant
to which Xxxxxxxx may issue "freely tradeable" shares of its common stock as
payment for services rendered, subject to the filing and effectiveness of an
S-8 Registration Statement to be filed with the Commission by Xxxxxxxx.
2.3 Registration Statement on Form S-8. Xxxxxxxx shall engage the
services of a competent professional to prepare and file a Registration
Statement on Form S-8 with the Commission to cover the shares of common stock
to be issued under the Plan; shall cooperate with such professional in every
manner whatsoever to the extent reasonably required or necessary so that such
Registration Statement shall be competently prepared, which such Registration
Statement shall not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, and
which such Registration Statement shall become effective immediately upon its
filing; such Registration Statement shall be prepared at the sole cost and
expense of Xxxxxxxx; and Xxxxxxxx will provide to the Consultants prior to the
issuance and delivery of any such shares of common stock a copy of such
Registration Statement, the Compensation Plan adopted by its Board of
Directors, all quarterly, annual or current reports or other documents
incorporated by reference into such Registration Statement and any other
similar reports filed or publicly disseminated following the effective date of
any such Registration Statement.
2.4 Federal and State Securities Laws, Rules and Regulations.
Xxxxxxxx shall fully comply with any and all federal or state securities laws,
rules and regulations governing the issuance of any such shares of common
stock.
2.5 Limitation on Services. Xxxxxxxx shall not request the
Consultants to perform any services in connection with any "capital raising"
transaction under this Plan.
2.6 Reports With the Commission. Xxxxxxxx is required to file
reports with the Commission pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and Xxxxxxxx has or will file with
the Commission all reports required to be filed by it forthwith, and shall
continue to file such reports with the Commission so long as required, but for
a period of not less than one year; and such reports are or will be true and
correct in every material respect.
2.7 Corporate Authority and Due Authorization. Xxxxxxxx has full
corporate power and authority to enter into this Plan and to carry out its
obligations hereunder. Execution of this Plan and performance by Xxxxxxxx
hereunder have been duly authorized by all requisite corporate action on the
part of Xxxxxxxx, and this Plan constitutes a valid and binding obligation of
Xxxxxxxx and performance hereunder will not violate any provision of the
Articles of Incorporation, Bylaws, agreements, mortgages or other commitments
of Xxxxxxxx.
Section 3
Representations and Warranties of the Consultants
Each of the Consultants represents and warrants to, and
covenants with, Xxxxxxxx as follows:
3.1 Employment. Each of the Consultants hereby accepts employment
by Xxxxxxxx for the services performed pursuant to this Agreement. The
services performed by the Consultants hereunder have been personally rendered
by the Consultants, and no one acting for or on behalf of the Consultants.
3.2 Accredited Investors. Each of the Consultants represents and
warrants that, by reason of income, net assets, education, background and
business acumen, the Consultants have the experience and knowledge to evaluate
the risks and merits attendant to an investment in shares of common stock of
Xxxxxxxx, either singly or through the aid and assistance of a competent
professional, and are fully capable of bearing the economic risk of loss of
the total investment of services; further, they are "accredited investors" as
that term is defined under the 1933 Act or the rules and regulations
promulgated thereunder.
3.3 Suitability of Investment. Prior to the execution of this
Plan, each of the Consultants shall have provided the services outlined in the
respective Counterpart Signature Pages to Xxxxxxxx, and the Consultants,
singly, or through the advice of a competent professional, fully believe that
an investment in shares of common stock of Xxxxxxxx is a suitable investment
for the Consultants.
3.4 Limitation on Services. None of the services rendered by the
Consultants and paid for by the issuance of shares of common stock of Xxxxxxxx
shall be services related to any "capital raising" transaction.
3.5 Authority and Authorization. Each of the Consultants has full
power and authority to enter into this Plan and carry out the obligations
hereunder. Execution of this Plan and performance by the Consultants
hereunder constitutes a valid and binding obligation of the Consultants and
performance hereunder will not violate any other agreement to which any of the
Consultants is a party.
Section 4
Indemnity
Xxxxxxxx and the Consultants agree to indemnify and hold the
other harmless for any loss or damage resulting from any misstatement of a
material fact or omission to state a material fact by the other contained
herein or contained in the S-8 Registration Statement of Xxxxxxxx to be filed
hereunder, to the extent that any misstatement or omission contained in the
Registration Statement was based upon information supplied by the other.
Section 5
Termination
Prior to the performance of services hereunder, this Plan may
be terminated (1) by mutual consent of Xxxxxxxx and the respective Consultants
in writing; (2) by either the Directors of Xxxxxxxx or the respective
Consultants if there has been a material misrepresentation or material breach
of any warranty or covenant by the other party; and (3) shall automatically
terminate at the expiration of the term hereof, provided, however, all
representations and warranties shall survive the termination hereof; provided,
further, however, that any obligation of Xxxxxxxx to pay for any services
actually rendered by the Consultants hereunder shall survive any such
termination.
Section 6
General Provisions
6.1 Further Assurances. At any time, and from time to time, after
the execution hereof, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to carry
out the intent and purposes of this Plan.
6.2 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class registered or certified mail, return receipt
requested, as follows:
If to Xxxxxxxx: 00 Xxx Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Consultants: The addresses listed on the
Counterpart Signature Pages
6.3 Entire Agreement. This Plan constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
6.4 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Plan.
6.5 Governing law. This Plan shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, except to
the extent pre-empted by federal law, in which event (and to that extent
only), federal law shall govern.
6.6 Assignment. Neither Xxxxxxxx nor the Consultants can assign
any rights, duties or obligations under this Plan, and in the event of any
such assignment, such assignment shall be deemed null and void.
6.7 Counterparts. This Plan may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan effective
the day and year first above written.
XXXXXXXX COACH, INC.
By /s/ Xxxxx Xxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxx, Chairman, CEO and President
EXHIBIT "A"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth herein below.
Consultant:
S. Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Date: January 6, 2000 /s/ S. Xxxxxxx Xxxxxx
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit A-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 305,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT A-1
January 7, 2000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxx #000X
Xxxx Xxxx Xxxx, XX 00000
Via Facsimile
Re: Xxxxxxxx Coach, Inc.
Dear Xx. Xxxxxxxx:
This will confirm for purposes of any filing requirements the source
obligation(s) for the shares of Xxxxxxxx Coach, Inc. that Xxxxxxxx Coach, Inc.
wishes to have issued to me.
1.260,000 shares represents my contingent fee interest in Xxxxxxx x.
Xxxxxxxx Coach, Inc. et al. In that lawsuit, Xxxxxxxx Coach, Inc. prevailed
through settlement on its counterclaim. The settlement agreement you have
reviewed reflects the 260,000 shares payable to me as my fee.
2.15,000 shares represents payment of a long-overdue account on Xxxx Link
x. Xxxxxxxx Coach. I represented Xxxxxxxx Coach, again, on a contingent fee
basis, in that matter. After a successful resolution of that lawsuit, I
agreed to defer a portion of my fee.
3.30,000 shares represents payment for general litigation work I
performed for Xxxxxxxx Coach, Inc. prior to the filing of the Xxxxxxx
lawsuit. Specifically, my services related to the following matters: Xxxxxxx
(prelitigation); Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxx, Corporate Imaging,
and general litigation consulting.
Please call with any questions you may have.
Sincerely,
/s/ S. Xxxxxxx Xxxxxx
EXHIBIT "B"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Xxxxxxx Xxxxxx
Date: January 4, 2000 /s/ Xxxxxxx Xxxxxx
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit B-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 100,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT "B-1"
January 4, 2000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000X
Xxxx Xxxx Xxxx, XX 00000
Via Facsimile
Re: Services qualifying for issuance of compensatory shares of common stock of
Xxxxxxxx Coach, Inc., a Delaware corporation (the "Company"), to be registered
on Form S-8 of the Securities and Exchange Commission
Dear Xx. Xxxxxxxx:
As per your request, the following is a list of the services I have rendered
for the Company from March 1999 through the present:
$35,000 General litigation and related consulting for the Company
$40,000 Litigation and related consulting regarding Xxxxxxx Xxxxxxx
$25,000 General corporate counseling
Please let me know if I can be of further assistance.
Respectfully,
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxx Xxxxxx
EXHIBIT "C"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Xxxxxxx X. Xxxxxxxx
Date: January 4, 2000 /s/ Xxxxxxx X. Xxxxxxxx
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit C-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 100,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT "C-1"
January 4, 2000
Xxxxxxxx Coach, Inc.
00 Xxx Xxxxx 000
Xxxxxxxxxx, XX 00000
Via Facsimile
Re: Services qualifying for issuance of compensatory shares of common stock
of Xxxxxxxx Coach, Inc., a Delaware corporation (the "Company"), to be
registered on Form S-8 of the Securities and Exchange Commission.
Gentlemen:
As per your request, the following is a list of the services I have
rendered for Xxxxxxxx from April 1999 through present:
Legal research and opinion regarding consultant relationship with
Commonwealth and Xxxxxxx
Legal research, opinion and review of documentation regarding DRK
management contract
General transactional review and consultation with other counsel for
Company
Annual and quarterly filings for company, including amendments
Additional required filings for company
Drafting of opinion letters re: 144 sales
Drafting of convertible debentures
Drafting of S-1 Registration Statement
General consulting regarding securities laws
Combined from above: $100,000
Please let me know if I can be of further assistance.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
EXHIBIT "D"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Xxxxxxx X. Xxxxxxx
Date: January 10, 2000 /s/ Xxxxxxx X. Xxxxxxx
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit D-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 200,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT "D-1"
January 10, 2000
Xx. Xxxxx Xxxxxxxxx
Xxxxxxxx Coach Inc.
00 Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
After considering your offer to me last October 1999, I have decided to accept
your offer of paying me for my services with 200,000 shares of Xxxxxxxx Coach
trading stock, rather than cash.
As you know from our many years of my providing my services to you my
expertise is in materials handling, scheduling and quality assurance. I will
continue as I have through 1999 and through the year 2000 in exchange for this
stock.
I will take primary responsibility for all quality assurance, including
paperwork, forms, staffing and monitoring of our quality assurance Program.
I will assist Xxxx Xxxxxxx and Xxx Xxxxx in purchasing to assure the highest
quality material at the best price. I will also continue to work with Xxxx
Xxxxxxxxx and Xxxxxx Xxxxx to assure coordination of materials and production
in order to try to improve Xxxxxxxx'x ability to deliver on time.
Sincerely Yours,
Xxxxxxx X. Xxxxxxx
d/b/a
Transportation Consultant
/s/ Xxxxxxx X. Xxxxxxx
EXHIBIT "E"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Xxxxxxx Xxxxxxx
Date: January 10, 2000 /s/ Xxxxxxx Xxxxxxx
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit E-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 100,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT "E-1"
7 January 2000
Xx. Xxxxx Xxxxxxxxx
Xxxxxxxx Coach Inc.
00 Xxx 000
Xxxxxxxxxx, XX 00000
Dear Xxxxx:
Further to earlier conversations, this will serve to confirm our agreement
made in November 1999 regarding payment of fees for consulting projects
performed recently.
We had agreed that there were consulting matters that I would handle on an
incentive/contingency consulting basis. The arrangement of a fee of 5% would
be applicable for projects including:
4.) Sales activity generated from my involvement in marketing efforts, at
several major truck and RV expositions; estimated value 1999 of $500,000,
5%=$25,000, (5%)
5.) Co-ordinating efforts for the company's re-location to Pennsylvania.
Estimated value $150,000=$7500.(5%)
We agreed that I would accept my payment of these fees in common stock. I
agreed in connection with these matters to accept 100,000 shares of free
trading stock. I have also reviewed this matter with Xxxxxxx Xxxxxxxx and
Xxxxxxx Xxxxxx.
Thank you,
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
EXHIBIT "F"
CONSULTANT COMPENSATION AGREEMENT No. 2
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 2 between Xxxxxxxx Coach, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Xxxxxxx X. "Xxxx" Xxxxxxx
Date: January 10, 2000 /s/Xxxxxxx X. "Dick" Whitney
Number of Shares and Maximum Value of Services
General Description of Services to be Performed
See Exhibit F-1 attached hereto and incorporated herein by reference as set
forth and as will be set forth in invoices
Options for 150,000 shares of Xxxxxxxx common stock, at $1.00 per
share.
EXHIBIT "F-1"
January 10, 2000
Dear Xx. Xxxxxxxxx,
I have thoroughly contemplated your offer to pay me directly for services I
have been providing Xxxxxxxx Coach from my home after normal business hours in
the areas of accounting, material sourcing, purchasing, computer work
including typing, drafting and other secretarial items.
I have worked with your for well over the past 25 years and have a very strong
belief that the Kinglsey project will be immensely successful.
For my services as described above for the years of 1999 and 2000, I do accept
your offer for 150,000 free trading shares of Xxxxxxxx Coach, Inc. Stock
Sincerely,
Xxxxxxx X. "Dick" Whitney
/s/ Xxxxxxx X. "Xxxx" Xxxxxxx
