CONSULTANT COMPENSATION AGREEMENT No. 2
THIS CONSULTANT COMPENSATION AGREEMENT (the "Plan") is
made this 7th day of May, 1999, 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
"B" hereof: S. Xxxxxxx Xxxxxx, Esq.; Xxxxxx X. Xxxxx, Esq.(collectively,
the "Consultants").
WHEREAS, the Board of Directors of Xxxxxxxx has adopted a
written compensation agreement for compensation of two 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 shall have been performed within: (1) as to Xxxxxx,
one year from the date hereof, at which time this Plan shall terminate,
unless extended by written agreement of Xxxxxxxx and Xxxxxx for one
additional year; (2) as to Xxxxx, 120 days, at which time the Plan shall
terminate. 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 a written invoice detailing the services duly
performed and/or the retainer or flat fee for such services. Such
invoice(s) 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.
1.11 Conditions. The Plan is subject to the following
condition, to-wit:
The number of shares of common stock to be issued under
the Plan shall in no event exceed 3% of the total issued and outstanding
shares of common stock of the Company.
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: May 10, 1999 /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 100,000 shares of Xxxxxxxx common stock, at $1.00 per share.
EXHIBIT A-1
May 8, 1999
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxxxx 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 services I have
rendered and am rendering from 1998 to present:
Litigation, re: Xxxxx Xxxx, $5,000.00
Litigation, re: Xxxxx Xxxxx x. Xxxxxxxx and Westside Charter et
al. V. Custom Bus Charter, Inc., $35,000
Litigation, re: Xxxx Xxxxxxx, $15,000
Litigation, re: Xxxx Xxxxxx, $15,000
General litigation, $15,000
Document review and legal consultation, $15,000
Please let me know if I can be of further assistance.
Respectfully,
/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 herein
below.
Consultant:
Xxxxxx X. Xxxxx
7145 South 000 Xxxx #X000
Xxxx Xxxx Xxxx, XX 00000
Date: May 10, 1999 /s/ Xxxxxx X. Xxxxx
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 5,000 shares of Xxxxxxxx common stock, at $1.00 per share.
EXHIBIT "B-1"
May 10, 1999
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxxxx 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 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 securities
counsel for Company.
Combined from above: $5,000
Please let me know if I can be of further assistance.
Respectfully,
/s/ Xxxxxx X. Xxxxx
