Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "AGREEMENT"), dated as of the 2nd day of April,
2005 (the "COMMENCEMENT DATE"), by and between Execute Sports, Inc. (the
"COMPANY") and Xxxxx Capital (the "CONSULTANT").
RECITALS
WHEREAS, the Company desires to retain the Consultant to provide such
consultation and advisory services as the Company may require from time to time
as set forth herein and the Consultant is willing to be retained by the Company
to provide such services to the Company, all in accordance with the terms and
conditions set forth below.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter contained, the parties hereto hereby agree as follows:
1. RETENTION OF CONSULTANT.
The Company hereby retains the Consultant to assist the Company with its
organization growth, providing guidance and advice in the areas of
acquisitions, financing, management efficiency, and strategic relationship
and such additional services as the President of the Company may
reasonably request, in connection with the Company's business
(collectively, the "SERVICES") and the Consultant hereby agrees to
provides to the Company the Services.
2. INDEPENDENT CONTRACTOR.
The Consultant is an independent contractor and shall not hold himself out
as an officer, director, employee or agent of the other party for any
purpose. The Consultant has not, nor should he represent himself as having
the right, power, or authority to create any contract or obligation,
express or implied, on behalf of, or in the name of, or binding on the
other party unless the other party shall give explicit prior written
consent thereto.
3. TERM.
The Consultant and the Company agree that the Consultant shall be retained
by the Company for a period commencing as of the date hereof (the
"COMMENCEMENT DATE") and concluding December 31, 2006, unless earlier
terminated in accordance by thirty (30) days prior written notice by
either party to the other party (the "TERM").
4. COMPENSATION.
In consideration of Consultant's agreement to make himself available to
render consulting services to the Company and as payment in full for all
Services rendered by the Consultant during the Term, the Company shall pay
to the Consultant, and the Consultant hereby shall accept, a consulting
fee, payable in shares of the Company's common stock as set forth in
subscription agreement attached hereto as Exhibit A.
5. DUTIES
(a) The Consultant agrees that, during the term hereof, he shall
make himself available, when and as reasonably requested by
the Company, to use his best efforts to assist the Company in
providing the Services.
(b) The Consultant shall be required to devote such time as is
reasonably necessary to provide the services requested
hereunder.
6. BINDING AGREEMENT; ASSIGNABILITY.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns;
provided, however, that the Consultant may not assign this Agreement
without prior written consent of the Company.
7. SEVERABILITY.
If any provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8. GOVERNING LAW.
This Agreement shall be governed by and construed under the laws of the
State of California, without regard to principles of conflicts of laws
thereof.
9. ENTIRE AGREEMENT; AMENDEMENT; WAIVER.
This Agreement embodies the entire understanding of the parties pertaining
to the subject matter hereof, and there are no other agreements (except
for the subscription agreement) , representations, understandings or
warranties between the parties relating to the subject matter of this
Agreement that are not set forth herein. This Agreement may be amended,
modified, supplemented or waived only by a written consent by both of the
parties hereto.
10. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all such counterparts together shall
constitute one and the same instrument.
11. HEADINGS.
The headings of sections herein are included solely for convenience of
reference and shall not control the meaning or interpretation of any of
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the effective date above written.
CONSULTANT EXECUTE SPORTS, INC.
By: By:
---------------------------- --------------------------------
Name: Name: Xxx Xxxxxxx
Title: CEO and Chairman
Exhibit A
Compensation for Services and Registration Rights
The Consultant is obligated to render certain consulting and advisory services
to the Company for a period of nineteen months commencing April 2, 2005. In
consideration of Consultant's agreement to render consulting services to the
Company including but not limited to providing Company with introductions for
mergers and acquisitions, strategic partnerships and due diligence services, the
Company shall pay to Consultant $175,000, or $9,210 per month payable in shares
of the Company's common stock with "piggy-back" registration rights (the
"Shares") which carry the terms defined below.
26. Piggyback Registration Rights. For the purposes of this Section 1
references to Consultant or shares held by Consultant shall mean and refer
to the Shares as defined above.
i. Inclusion in Registration Statement. If, at any time during the Term, as
defined in Section 5 below, Company intends to file a registration
statement with the Securities and Exchange Commission (other than
registrations filed on Form S-8 or on Form S-4, or any similar or
successor forms then in effect under the 0000 Xxx) (collectively referred
to as a "Registration Statement") to register any of its securities
pursuant to the 1933 Act, whether or not for its own account (the
"Registration"), then Company shall provide written notice to Consultant
of its intention to do so. (Consultant's rights under this Section 2 are
hereinafter referred to as "Piggyback Registration Rights.") Upon the
request of Consultant, made within ten (10) days of receipt of such
notice, and subject to the provisions set forth herein, Company shall
include such Consultant Shares in the Registration Statement as requested
from Consultant. Company shall keep such Registration Statement effective
for a minimum of sixty (60) days and shall comply with all federal and
state laws or regulations necessary for Company to effect a sale or
disposition during such period.
ii. Information and Documents. In the event Company shall be required by the
provisions of this Section 1.ii to effect the registration of the
Consultant Shares, Consultant shall timely furnish, in writing, such
information as is requested by Company or the Underwriter or their
representatives, including their legal counsel and accountants, for
inclusion in the Registration Statement relating to such Public Offering
and such other information and documentation as Company shall reasonably
request. In addition, Consultant shall execute and deliver such
agreements, certifications and other documents, including, without
limitation, selling shareholder instructions, powers-of-attorney, and
custody agreements, as Company or Underwriter may reasonably request.
Company's obligation to register the Consultant Shares shall be subject to
the fulfilment of the duty of Consultant to cooperate fully with Company
and the Underwriter and their representatives in the preparation of the
Registration Statement covering the Consultant Shares and to otherwise not
be in default of any provisions of this Supplemental Agreement or the
Agreement.
iii. Expenses All expenses incurred in connection with any Registration under
this Section 1, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and expenses of any audits incident
to or required by any such registration are herein called "Registration
Expenses." All underwriting discounts and selling commissions applicable
to any offer and sale of securities herein are called "Selling Expenses."
Company will pay all Registration Expenses attributable to the Consultant
Shares in connection with any Registration pursuant to this Section 1. All
Selling Expenses in connection with any registration pursuant to this
Section 1 shall be borne by Company and Consultant, pro rata as the shares
registered thereby being sold or registered by each of them bears to the
total number of shares being registered. Consultant shall bear the fees
and costs of its own counsel. Notwithstanding the foregoing provisions of
this Section 1, Consultant shall pay for all Registration and Selling
Expenses which applicable state securities or other regulatory agencies
(whether governmental or otherwise) require to be paid by persons selling
shares in the Public Offering as a condition to qualification or
registration of the securities being sold or registered.
iv. Prospectus Delivery. Consultant shall comply with the prospectus delivery
requirements of applicable federal or state securities laws in connection
with any registration. If any prospectus becomes outdated, inaccurate, or
misleading, Consultant shall cease using all such prospectuses upon notice
thereof from Company and shall return all copies of such prospectuses
under Consultant's control to Company.
v. No Registration Required. Company shall not be required to effect a
registration under this Section 1 if Consultant would otherwise be able to
sell, in its entirety on the day following the receipt by Consultant of
the Notice under Section 1, without registration, the number of shares
sought to be registered at the time of the registration, pursuant to Rule
144 promulgated by the Securities and Exchange Commission as then in
effect or pursuant to any other exemption from the registration provisions
of the 1933 Act then available to Consultant (collectively referred to as
"Rule 144"), so long as the purchaser thereof shall acquire shares that
are not subject to any restriction on resale as may otherwise be imposed
pursuant to Rule 144.
