EXHIBIT 10.2
STOCK TRANSFER AND CONSULTING AGREEMENT
THE FOLLOWING AGREEMENTS are made effective this 31st day of March, 2003 (the
"Effective Date") by and between CONSOLIDATED AMERICAN ENERGY RESOURCES, INC.
(Consolidated"), whose principal offices are located at 000 Xxxxxx Xxxxxx, Xxxxx
#000 Xxxxxx, XX 00000 and XX. XXXXXXX X. XXXXX ("Xxxxx"), whose principal
offices are located at 0000 Xxxxxxxx, Xxxxxxx Xxxxx Xxxxx, Xxxxx 000 Xxxxxx, XX
00000.
PURPOSES: The parties desire to enter into the following Stock Transfer
Agreement and to cause certain financial adjustments to be made by Availent
Financial, Inc. of which Xxxxx is presently a Director, Officer and Stockholder.
In addition, they agree to enter into, and to use their best efforts to cause
Availent to enter into the Consulting Agreement, as set forth below. The
execution of the Stock Transfer is a condition precedent to Consolidated's
obligation to enter into its Consulting Agreement as set forth below. They
further agree to cause all of these agreements to ratified by Availent.
RECITALS
A. WHEREAS Consolidated is experienced in providing corporate financial and
investment banking consulting services.
B. WHEREAS Consolidated has developed relationships with brokers, institutional
investors, investment bankers, financial public relations firms and individual
accredited investors which may assist Xxxxx in the corporate restructuring and
possible debt and equity financing of AVAILENT FINANCIAL, INC. ("Availent" or
the "Company").
C. WHEREAS according to the unaudited financial statements of Availent (updated
by the Company on March 20, 2003, hereinafter referred to as the "Financial
Statements"), Availent's negative net worth was ($3,474,069) and ($4,256,117) on
December 31, 2002 and February 28, 2003, respectively. According to the
Financial Statements, Availent lost ($3,016,310) for the fiscal year ending
December 31, 2002 and lost ($782,048) for the two months ending February 28,
2003.
D. WHEREAS, Xxxxx in consideration of Consolidated's best efforts participation
in the corporate restructuring and possible fixture equity and/or debt financing
of Availent, Xxxxx agrees to the following:
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are expressly acknowledged, Consolidated and Xxxxx agree as
follows:
[1] Xxxxx does hereby agree to transfer and convey all (1,691,161 more or
less) of the common shares of Availent (the "Shares") owned or
controlled by Xxxxx to Consolidated and Consolidated's agents and
assigns, or Consolidated's order, effective immediately upon execution
of this Agreement and any other agreement
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deemed by Consolidated to be necessary to effectuate said transfer of
Shares. Further, Xxxxx agrees to notify the escrow agent of the
transfer of Shares to Consolidated, said escrow agent is currently
holding the Shares in accordance with the Loan Agreement between
Availent and Xxxxx Xxxx dated February 12, 2003. In addition,
immediately upon receipt of written instructions from Consolidated,
Xxxxx agrees to notify Availent's Stock Transfer Agent of the transfer
of Shares to Consolidated, its agents and assigns.
[2] Xxxxx does hereby agrees to convert all principal balances owed to him
and his wife (Xxxxxxxx Xxxxx) as evidenced by Notes Receivable (the
"Notes") from Availent into Availent common shares at the price of
$1.00 per share. As of March 28, 2003, Availent owed Xxxxx and his
wife $221,250. These Notes Receivable amounting to $221,250 are hereby
converted to equity at $1.00 per share in the amount of 221,250 shares
with piggyback registration rights.
[3] Xxxxx and Xxxxxxxx Xxxxx do hereby agree to forgive immediately as of
March 28, 2003 any and all interest accrued and unpaid on the Notes
(see Section 3 above,) now and forevermore.
[4] Bane does hereby agree to forgive immediately any and all deferred
compensation payable to him by Availent as of March 28, now and
forever more. Said deferred compensation amounts to $48,916 + FICA for
FY 2001, $130,035 + FICA for FY 2002 and approximately $47,500 + FICA
for FY 2003 (total is $226,451 plus FICA).
[5] To immediately elect up to five additional directors to Availent's
Board of Directors, said five directors to be chosen and nominated by
Consolidated, at Consolidated's request.
E. Consolidated, as further consideration for Xxxxx'x agreement and performance
as shown in Section D. [1] thru [5] above and elsewhere in this agreement, does
hereby agree to use its best efforts to have Availent issue and execute an
Employment Agreement, an Executive Stock Option Plan and an Executive
Performance Bonus Plan with the provisions as shown below. Note that the
aforementioned agreements and all provisions contained therein are subject to
review and approval of Availent's general counsel and Board of Directors:
[1] Annual salary, pay to commence immediately as of March 30, 2003, every
two weeks, payable in arrears. Xxxxx'x annual salary is $100,000.
[2] A Quarterly Bonus Plan (the "Bonus Plan") for the Executives of
Availent as designated by the Board of Directors equal to 5% of the
Net Income Before Taxes (in accordance with GAAP) of Availent
Financial up to $5 million Net Income Before Taxes annually, payable
within 45 days subsequent to the end of the quarter. Should Net Income
Before Taxes exceed $5 million per annum, the executives shall be paid
2% of any NIBT in excess of $5 million.
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[3] The term of employment is 5 years, from March 31, 2003 to March 31,
2008.
[4] Xxxxx will retain the title of President of Availent Mortgage.
[5] Xxxxx will participate in a stock option plan with the participants
limited to whatever employees of Availent that are dictated by Federal
statutes and ERISA. Xxxxx'x minimum participation in the ESOP under
any and all circumstance will be 40% of the total options. The ESOP
will provide for the issuance in the aggregate of at least 5% of the
total common shares issued and outstanding of Availent for three years
as of fiscal year end 2003, 2004 and 2005. For purposes of calculating
the number of shares issued and outstanding, December 31 will be
utilized. 50% of the options shall be earned automatically. 25% of the
options shall be earned as annual gross revenue target amounts are
achieved (amounts to be determined) for FY 2003, 2004, 2005. 25% of
the options shall be earned according to Net Income Before Tax target
amounts (to be determined) for FY 2003, 2004, 2005. These options will
be cashless exchange options and will vest 100% as earned.
[6] Consolidated does hereby agree to use its best efforts to facilitate
Availent's payment to Xxxxx for reimbursable expenses in the aggregate
amount of $33,956.78. The future payments related to these charge
cards are subject to and conditional upon an audit.
F. The services provided herein are to be provided on a "best efforts" basis
directly and through the Consolidated's officers, agents or others employed or
retained by and under the direction of Consolidated provided however, that the
services shall expressly exclude all legal advice, accounting services or any
other services which require licenses or certification which Consolidated does
not possess.
G. Should further documents be reasonably required to affect the purposes to
these agreements and the assent of either or both of the parties be necessary
then they hereby agree to execute such agreements.
CONSULTING AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are expressly acknowledged, Consolidated and Xxxxx agree as
follows and to cause Availent to ratify, approve and enter into the following
agreement:
1. SCOPE OF REPRESENTATION. Consolidated shall provide the corporate
consulting, restructuring and financing services detailed in Sections D and E of
the Stock Transfer Agreement as set forth above and Section 2 of this agreement
as set forth below (the "Services").
2. CONSOLIDATED'S EXPENSES. Expense reimbursement shall be covered in
a separate consulting agreement between Consolidated and its agents and assigns
and Availent. Availent
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and Consolidated agree that such agreement shall provide for the recovery by
Consolidated of all of its reasonable and necessary expenses incurred in the
performance of Consolidated's efforts to affect the purposes of this and future
agreements entered into for the benefit of Availent The reasonable necessity for
such expenses shall be presumed until established otherwise.
3. INDEPENDENT CONTRACTOR: NO POWER TO BIND. Consolidated and its
agents and assigns are not employees of Xxxxx nor Availent any purpose
whatsoever, but are independent contractors. Xxxxx is interested only in the
results obtained by Consolidated, and Consolidated shall have, subject to the
terms of this Agreement, sole control of the manner and means of performing
under this Agreement.
4. COMPENSATION. The transfer of shares as set forth in Section D. [1]
herein shall constitute Consolidated's compensation. Any additional compensation
to be paid to Consolidated for its consulting services will be set forth in a
separate agreement with Availent.
5. TERM. The term of this Agreement shall be for 12 (twelve) months
from the date of execution of this Agreement.
6. WARRANTIES AND REPRESENTATIONS OF CONSOLIDATED. Consolidated
represents, warrants and covenants to Xxxxx that it will at all times during
the term of this Agreement satisfy the following warranties and representations.
(a) Consolidated shall at all times comply with any and all
applicable federal, state, local or foreign securities laws, rules and
regulations in its performance hereunder. Consolidated will disclose in all
reports, communications, etc. that it is a consultant of Availent that it is
being compensated by Availent and is a shareholder of Availent. Specifically,
that Consolidated will at all times comply with the requirements of Section
17(b) of the Securities Act and will not solicit the purchase or sale of any
securities of Availent without disclosing any compensation arrangement and the
exact number of shares held by Consolidated and any shares held by related
parties as defined in the Securities Act of 1933, as amended.
(b) Consolidated shall at all times comply with all federal,
state and foreign laws and all applicable rules, regulations and orders of any
court, government or any unit or agency thereof in connection with performing
its duties under this Agreement.
(c) Consolidated acknowledges that the services to be provided
pursuant to this Agreement and the receipt, retention and disposition of the
compensation to be paid to Consolidated under this Agreement are subject to
applicable securities laws, including the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") shall at all times comply
with all applicable securities laws in connection with performing its duties
under this Agreement and in connection with the receipt, retention and
disposition of the compensation to be paid to Consolidated under this Agreement.
(d) Consolidated is free to enter into this Agreement and the
services to be provided pursuant to this Agreement are not in conflict with any
other contractual or other obligation to which the Consolidated is bound.
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(e) Consolidated is providing the Services on a best effort
basis which are based on its management's personal experience and expertise.
There are no guarantees, warranties and representations (express or implied) of
any kind that its advice or Services will produce any specific results for the
benefit of Xxxxx or Availent. Actual results may substantially and materially
differ from those suggested by Consolidated.
(f) Consolidated represents and warrants to Xxxxx that: (i)
it is under no contractual restriction or other restrictions or obligations that
are inconsistent with this Agreement, the performance of its duties and the
covenants hereunder, (ii) its management is under no physical or mental
disability that would interfere with its keeping and performing all of the
agreements, covenants and conditions to be kept or performed hereunder, (iii) it
is familiar with all federal and state securities laws applicable to the
performance of its services as contemplated in this Agreement, including
Sections 17(b) of the Securities Act, Sections 9 and 10(b) of the Exchange Act
and Regulation FD; (iv) it will comply with all applicable federal and state
securities laws in the performance of the services under this Agreement; and (v)
it will cause any person to whom any of the Securities of the Company or other
compensation are transferred to agree and undertake for the benefit of the
Company to comply with all applicable federal and state securities laws in
connection with their ownership or disposition of the Securities (including
compliance with Section 17(b) of the Securities Act to the extent applicable).
(g) Consolidated acknowledges that it is in the business of
consulting and may provide consulting services and consulting advice (of the
type contemplated by this Agreement) to others and that nothing herein contained
shall be construed to limit or restrict the Consolidated in providing such
similar consultant type services to others, or rendering such advice to others.
7. WARRANTIES AND REPRESENTATIONS OF XXXXX. Xxxxx agrees to indemnify
and hold Consolidated, its agents and assigns, harmless from any and all
claims, causes of action or liabilities of any nature whatsoever arising out of
this Agreement or the actions taken by Consolidated pursuant to the terms of
this Agreement, specifically including, but not limited too, any claims by other
Availent shareholders, regulatory authorities, financiers or any other person or
institution whose claim or claims are based upon the terms and conditions of
this Agreement.
8. NOTICE. Except as otherwise specifically provided, any notices to be
given hereunder shall be deemed given upon personal delivery, upon the next
business day immediately following the day sent if sent by overnight express
carrier, or upon the third business day following the day if sent by fax and
separated by postage prepaid by certified or registered mail, return receipt
requested, to the following address (or such other address as shall be specified
in any notice given):
In case of Consolidated: CONSOLIDATED AMERICAN ENERGY RESOURCES, INC.
Xx. Xxxxx Xxxxxx, President
000 Xxxxxx Xxxxxx, Xxxxx #000
Xxxxxx, XX 00000
In case of Xxxxx: XXXXXXX X. XXXXX
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0000 Xxxxxxxx, Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000.
IN CASE OF AVAILENT: Xxxxxxx X. Xxxxx
President of Availent Mortgage
0000 Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxx 000
Xxxxxx, XX 00000
9. WAIVER OF BREACH. The waiver by a party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach of this Agreement.
10. ASSIGNMENT. Except as otherwise provided herein, the rights and
benefits of the parties contained in this Agreement shall inure to the benefit
of and be binding upon the successors, assigns, administrators, and personal
representatives of the parties hereto. Consolidated's duties under this
Agreement can be delegated by the them to the third parties who agree to act in
accordance with the terms and conditions of this Agreement.
12. ARBITRATION. Any controversy or claim arising out of or relating to
any interpretation, breach or dispute concerning any of the terms or provisions
of this Agreement, which disagreement is not settled within thirty days after it
arises, shall be settled by binding arbitration in Dallas, Texas in accordance
wit the laws of the State of Texas and under the rules then obtaining of the
American Arbitration Association and judgment upon the award rendered in said
arbitration shall be final and may be entered in any court of the State of Texas
having jurisdiction thereof. Any party hereto may apply for such arbitration.
13. ATTORNEYS FEES. In the event that an act on at law or in equity is
brought to enforce the provisions of this Agreement or to prevent a breach
thereof, the successful party in such action or arbitration proceeding shall be
entitled to an award of attorney's fees and other costs as shall be established
by the court or pursuant to a binding arbitration proceeding.
14. HOLD HARMLESS AND INDEMNIFICATION. Xxxxx shall hold Consolidated,
its officers and directors harmless from and against any liability, loss, cost,
expenses or damages, including attorney's fees, howsoever caused by reason of
any injury or loss sustained by or to any person or property by reason of any
actual or alleged wrongful act, misrepresentation or omission by Xxxxx and
Availent or its agents or representatives (other than the Consolidated).
Consolidated shall hold the Xxxxx and Availent and its management harmless from
and against any liability, loss, cost, expenses or damages, including attorney's
fees, howsoever caused by reason of any injury or loss sustained by or to any
person or property by reason of any actual or
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alleged wrongful act, misrepresentation or omission by the Consolidated or their
agents or representatives.
15. APPLICABLE LAW. This Agreement shall be construed as whole and in
accordance with its fair meaning. This Agreement shall be interpreted in
accordance with the laws of the State of Texas.
16. ENTIRE AGREEMENT. This Agreement, together with the documents and
exhibits referred to herein, embodies the entire understanding among the
parties and merges all prior discussions or communications among them, and no
party shall be bound by and definitions, conditions or warranties, or
representations other than as expressly stated in this Agreement, or as
subsequently set forth in writing, signed by the duly authorized representatives
of all of the parties hereto. This Agreement, when executed shall supercede and
render null and void any and all preceding oral or written understandings and
agreements. This agreement may be signed in counterparts.
17. NO ORAL CHANGE: WAIVER. This Agreement may only be changed,
modified, or amended in writing by the mutual consent of the parties hereto. The
provisions of this Agreement may only be waived in or by writing signed by the
party against whom enforcement of any waiver is sought.
18. CONFLICT OF INTEREST. Consolidated represents that it is not
presently aware of any conflicts of interest regarding the performance of the
Services in accordance with this Agreement.
19. SEVERABILITY. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, inoperative or unenforceable as applied in
any particular case because it conflicts with any other provision or provisions
hereof; or any other provision or provisions hereof, or any constitution or
statute or rule of public policy, or for any other reason, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses, sections or subsections of this Agreement shall not
affect the remaining portions of this Agreement.
20. INTERPRETATION. Each of the parties acknowledge that they have been
represented by independent counsel of their choice throughout all negotiations
that have preceded the execution of this Agreement, and that they have executed
the same with consent and upon the advice of said independent counsel. Each
party and their counsel cooperated in the drafting and preparation of this
Agreement and the documents referred to herein, and any and all drafts relating
thereto shall be deemed the work product of the parties and may not be
construed against any party by reason of its preparation. Accordingly, any rule
of law, including but not limited to any decision that would require
interpretation of any ambiguities in this Agreement against the party that
drafted it, is of no application and is hereby expressly waived. The provisions
of this Agreement shall be construed as a whole and in accordance with its fair
meaning to affect the intentions of the parties and this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on March 31, 2003,
CONSOLIDATED AMERICAN ENERGY RESOURCES, INC.
BY: /s/ XXXXX XXXXXX
-----------------------
XXXXX XXXXXX, PRESIDENT
WITNESS:
NAME: /s/ XXXXXXX X. XXXXXXX
-----------------------
ADDRESS: 0000 XXXXXXX #000
-----------------------
XXXXXX, XX 00000
-----------------------
XXXXXXX X. XXXXX XXXXXXXX XXXXX
BY: /s/ XXXXXXX X. XXXXX Agreed: /s/ XXXXXXXX XXXXX
-------------------------------------- ----------------------
XXXXXXX X. XXXXX, INDIVIDUALLY AND AS
PRESIDENT OF AVAILENT MORTGAGE, INC.
WITNESS:
NAME: /s/ XXXXXXX X. XXXXX [ILLEGIBLE]
------------------------------------- ----------------------
Secretary of Availent Financial, Inc. President, Availent
ADDRESS: 0000 Xxxxxxxx Xxxx Xxxxx 000 2720 Stemmons
---------------------------------- Xxxxxx, XX 00000
Xxxxxx, XX 00000
----------------------------------
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