EXHIBIT 10.2
AMENDED AND RESTATED CONSULTING AGREEMENT
This AMENDED AND RESTATED CONSULTING AGREEMENT (the "Agreement") is made as of
October 12, 2001 (the "Effective Date"), by and between PRO2, SQUARED, INC., a
Texas corporation doing business as Pro , Inc. (the "Company"), and XXXXXXX X.
XXXXXXXX, an individual residing in Houston, Xxxxxx County, Texas
("Consultant").
WITNESSETH:
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WHEREAS, Xxxxx Xxxxxxxx d/b/a Pro2 Consulting ("Xxxxxxxx") and Consultant
executed that certain Consulting Agreement dated June 15, 2001 (the "Original
Consulting Agreement"), whereby Consultant agreed to provide certain consulting
services to Xxxxxxxx;
WHEREAS, Xxxxxxxx subsequently formed the Company and transferred his
consulting business and assets, including the Original Consulting Agreement, to
the Company;
WHEREAS, the Company and Consultant desire to amend and restate the
Original Consulting Agreement to provide for the correct names of the
contracting parties and to amend certain terms and provisions thereof,
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties covenant and agree as follows:
1 . Engagement. The Company hereby engages Consultant, and Consultant
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hereby accepts the engagement with the Company on the terms and conditions set
forth in this Agreement.
2. Term of Engagement. The term of Consultant's engagement hereunder
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(the "Term") shall commence as of June 15, 2001, and shall continue (subject to
termination as hereinafter provided) until December 31, 2003 (the "Expiration
Date"). At the expiration of the Term, the Company shall have no further
obligation to Consultant other than payment of any earned and unpaid fees under
Section 4(a), the payment of reimbursable amounts pursuant to Section 4(b), and
any rights under the Warrant (as herein defined), and Consultant shall have no
further obligation to the Company. Notwithstanding the foregoing, in the event
the Company requests additional services after the Expiration Date, the
providing of such services shall continue to be subject to the Agreement.
3. DUTIES.
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(a) During the term hereof, Consultant shall provide and performing for the
Company an average of two (2) Consulting Days of services that generally conform
to the
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description of services contained on EXHIHIT "A" attached hereto and that are
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designated by the President or principal of the Company from time to time.
Consultant agrees to provide to the Company a monthly description of the
services performed. Consultant shall retain full direction and control of the
means and methods by which Consultant performs the above services and of the
places at which such services are to be rendered.
(b) All consulting services hereunder shall be performed by Consultant,
or such individual as is directed by Consultant and directly supervised by
Consultant.
4. COMPENSATION AND OTHER BENEFITS
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(a) As compensation for all services rendered by Consultant in
performance of Consultant's duties or obligations under this Agreement, the
Company shall pay Consultant $12,500 on signing this agreement, and an aggregate
fee of $5,000 per month during the Tenn. Amounts due hereunder shall be due and
payable three (3) months in advance, beginning June 15, 2001; provided however,
until such time as a factoring line of credit, loan funding, or equity placement
of at least $100,000 has been funded, all amounts due hereunder shall accrue,
but not be paid. Once the funding has been made, all amounts accrued hereunder
shall be immediately payable and all amounts thereafter due hereunder shall be
payable as described herein. For purposes of this Agreement, "Consulting Day"
shall mean the providing of eight hours of consulting services to the Company by
Consultant (excluding travel time). The Consultant shall have the option to
receive, in lieu of the cash compensation provided for in this Section 4(a),
such number of shares of common stock of the Company, par value $0.0001
("Company Stock"), with a value equal to the cash compensation due to
Consultant. The value of each share of Company Stock shall be equal to the
greater of (i) $0.01 and (ii) the lowest price per share at which any shares of
Company Stock were sold between June 15, 2001, and March 31, 2002. The Company
shall have the obligation to immediately register under an S-8 registration an
adequate number of shares of Company Stock under this formula to provide free
trading shares to the Consultant for all sums due under this Agreement.
(b) The Company shall reimburse Consultant for all expenses reasonably
incurred by Consultant in connection with performing services hereunder,
including, without limitation, business class travel and other business expenses
and costs. Amounts reimbursable by the Company to Consultant hereunder shall be
paid by the Company to Consultant within fifteen (I 5) days after receipt by the
Company of Consultant's invoice therefore. Consultant shall not spend more than
$500 per month without the express consent of the Company.
5. WARRANT. As a further inducement to Consultant to accept the
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consulting engagement upon the terms set forth herein and in consideration of
Consultant's execution of this Agreement, Consultant shall be issued a warrant
(the "Warrant") to purchase 100,000 shares of Company Stock at a price per share
equal to the greater of (i) $0.01 and (ii) the lowest price per share at which
any shares of Company Stock were sold between June 15, 2001, and March 31, 2002.
The Company is executing on even date herewith a Warrant Agreement evidencing
the issuance of the Warrant, a copy of the form of which is attached hereto as
EXHIBIT "B" . The Company Stock underlying the Warrant shall be registered under
an S-8 registration as soon after
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the issuance of the Warrant as is reasonably practicable, and the Company shall
diligently pursue the registration process through completion.
6. REMEDIES; INJUNCTION. In the event of a breach by of any of the
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provisions of this Agreement, Consultant agrees that the Company, in addition to
and not in limitation of any other rights, remedies or damages available to the
Company at law or in equity, shall be entitled to seek a permanent injunction in
order to prevent or restrain any such breach by Consultant.
7. NOTICES. Any notice, demand or request which may be permitted,
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required or desired to be given in connection therewith shall be given in
writing and directed to the Company and Consultant as follows:
If to the Company, at: 0000 Xx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
or, if to Consultant, at: 0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Notices shall be deemed properly delivered and received when and if either: (i)
personally delivered; (ii) delivered by nationally-recognized overnight courier;
or (iii) when deposited in the U.S. Mail, by registered or certified mail,
return receipt requested, postage prepaid. Any party may change its notice
address for purposes hereof to any address within the continental United States
by giving written notice of such change to the other parties hereto at least
fifteen days prior to the intended effective date of such change.
8. SEVERABILITY. If any provision of this Agreement is rendered or
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declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, the Company and
Consultant shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable, but all the remaining provisions
of this Agreement shall remain in full force and effect.
9. ASSIGNMENT. This Agreement may not be assigned by any party without
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the prior written consent of the other parties.
10. BANDING AGREEMENT. This Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto, and their respective legal
representatives, heirs, successors and permitted assigns.
11. ATTORNEY'S FEES. In the event of ANY dispute between the parties
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regarding this Agreement, the prevailing party shall be entitled to be
reimbursed for such prevailing party's attorney's fees and costs of court by the
non-prevailing party.
12. AGREEMENT READ, UNDERSTOOD AND FAIR. Consultant has
carefully read and considered all provisions of this Agreement and
agrees that all of the restrictions set forth are fair and
reasonable and are reasonably required for the protection of the interests
of the Company.
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13. INDEPENDENT CONTRACTOR. Consultant shall operate at all times as an
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independent contractor of the Company, and is in no way considered an employee
of he Company. This Agreement does not authorize the Consultant to act for the
Company as its agent or to make commitments on behalf of the Company.
14. AMENDMENTS. This Agreement may not be modified or amended except by
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an instrument in writing, signed by the Consultant and by a duly authorized
representative of the Company.
15. ARBITRATION - AGREEMENT: All disputes, claims, and/or requests for
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specific contractual performance, or other equitable relief, or damages or any
other matters in question between the parties arising out of this agreement
shall be submitted for arbitration, solely. Demand shall be submitted for
arbitration, solely. Demand shall be made to the American Arbitration
Association and shall be conducted in Houston, Texas by a one-person arbitrator,
unless the parties mutually agree otherwise. Arbitration shall be in accordance
with the commercial rules of the American Arbitration Association. The Award of
the Arbitrator shall be final and judgment may be entered upon it in any court
having jurisdiction thereof, and the prevailing party shall be entitled to costs
and reasonable attorney's fees arising out of such arbitration.
16. ENTIRE AGREEMENT. The terms of this Agreement are intended by the
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parties to be the final expression of their agreement with respect to the
retention of Consultant by the Company and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that
this Agreement shall constitute the complete and exclusive statement of its
ten-ns and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WBEREOF, the parties have executed this Agreement on this
day of October, 2001.
THE COMPANV:
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PRO SQUARED, INC.
By:
Xxxxx Xxxxxxxx
Consultant
XXXXXXX XXXXXXXX
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EXHIBIT "B"
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FORM OF WARRANT AGREEMENT
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT") OR THE
SECURITIES LAWS OF ANY STATE; THEREFORE, TIUS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE
OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF PRO SQUARED, INC.
VOID AFTER ________ 2001
This certifies that XXXXXXX X. XXXXXXXX, an individual residing in Houston,
Xxxxxx County, Texas ("Xxxxxxxx"), is entitled to purchase at any time on or
prior to 2001, ONE HUNDRED THOUSAND (100,000) Shares of fully paid and
non assessable shares of Common Stock, $0.0001 par value (the "Common Stock"),
of Pro Squared, Inc., a Texas corporation doing business as Pro2, Inc. (the
"Company"), at a price per share equal to the greater of (i) $0.01 per share or
(ii) the lowest price, per share at which any shares of Common Stock were sold
between the date of issuance of the Warrant and March 31, 2002. This Warrant
may be exercised by surrendering this Warrant with the subscription form
hereinafter set forth fully executed, at the principal office of the Company in
Houston, Texas, accompanied by payment of the full purchase price of the shares
so purchased in cash, and upon compliance with and subject to the conditions set
forth herein. The purchase price per share and
the number of shares covered by this Warrant are subject to adjustment from time
to time as hereinafter set forth.
The purchase price per share of Common Stock from time to time in effect
under this Warrant, and the number and character of shares covered hereby, shall
be subject to adjustments from time to time in certain instances as follows, and
the term "Warrant Price" shall mean the price per share originally set forth in
this Warrant or any price resulting from adjustments pursuant to the terms
hereof.
3. In case the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares or shall issue in exchange
for its outstanding shares of
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Common Stock a greater number of shares of Common Stock, then in each such case
from and after the record date for such subdivision or exchange, the number of
shares of Common Stock covered by this Warrant shall be increased in proportion
to such increase in the number of outstanding shares of Common Stock, and the
Warrant Price then in effect shall be correspondingly decreased; and if the
Company shall reduce the number of shares of its Common Stock by a combination
of shares or shall issue in exchange for its outstanding shares of Common Stock
a lesser number of shares of Common Stock, then in each such case from and after
the record date for such combination or exchange, the number of shares of Common
Stock covered by this Warrant shall be decreased in proportion to such reduction
in the number of outstanding shares of Common Stock, and the then prevailing
Warrant Price shall be correspondingly increased.
4. In case the Company shall declare and pay a dividend upon its Common
Stock payable in Common Stock, then in each such case from and after the record
date for determining the stockholders entitled to receive such dividend, the
number of shares of Common Stock covered by this Warrant shall be increased in
proportion to the increase in the number of outstanding shares of Common Stock
through such stock dividend, and the then prevailing Warrant Price shall be
correspondingly decreased.
5. In case of any reclassification or change of outstanding shares of
Common Stock (other than as a result of a subdivision, combination or stock
dividend) or in case of the consolidation or merger of the Company with or into
any other corporation (other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change in its outstanding shares of Common Stock), or in case of any sale by the
Company of all or substantially all of its assets to another corporation, the
holder of this Warrant shall have the right thereafter to receive upon exercise
hereof the amount and kind of shares of capital stock and other securities and
property entitled to be received upon such reclassification, change,
consolidation, merger or sale by a holder of the number of shares of Common
Stock of the Company covered by such Warrant at the then prevailing Warrant
Price, subject to subsequent adjustments as provided herein.
6. In case at any time:
(a) the Company shall declare any dividend upon its Common
Stock or make any other distribution to the holders of its Common Stock; or
(b) the Company shall propose to offer for subscription to the
holders of its Common Stock any additional shares of stock of any class of any
other securities or rights; or
(c) the Company shall propose any reclassification or change
of outstanding shares of Common Stock, or any consolidation or merger of the
Company or any sale by the Company of its assets to which paragraphs 1, 2 or
3 would be applicable, then, in any one or more of such cases, the Company
shall cause at least twenty (20) days' prior notice to be mailed to the
registered holder of this Warrant on the date on which the books of the Company
shall close or a
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record shall be taken for such dividend, distribution or subscription rights, or
for a vote upon such reclassification, change, consolidation, merger or sale, as
the case may be. In addition, the Company shall mail to the registered holder
of this Warrant copies of each report of communication of the Company mailed to
the holders of its Common Stock simultaneously with such mailing to holders of
Common Stock.
7. (a) As a condition precedent to the taking of any action which would
cause an adjustment reducing the Warrant Price below the then par value of the
shares of Common Stock issuable upon the exercise hereof, the Company will take
such corporate action as may be necessary in order that it may validly and
legally issue fully paid and non assessable shares of such Common Stock at such
adjusted Warrant Price.
(b) No adjustment shall be made in the number of shares purchasable
upon exercise of this Warrant in any case in which the adjustment would result
in a change of less than 2/100ths of a share of Common Stock, as such Common
Stock is constituted immediately subsequent to the event giving rise to the
proposed adjustment, except that any action taken by the Company which otherwise
would occasion an adjustment in an amount less than 2/100ths of a share shall be
carried forward and taken into account at the time of any subsequent adjustment
in the number of shares purchasable hereunder.
8. (a) This Warrant or any security issued or issuable upon exercise of
this Warrant may not be offered or sold except in conformity with the 1933 Act.
(b) The Company may cause the legends set forth at the top of the first
page hereof to be set forth on each Warrant and the following legend to be set
forth on each certificate representing Common Stock issued upon exercise of this
Warrant, unless counsel for the Company is of the opinion as to any such
certificate that such legend IS unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE OR THE SECURITIES LAWS OF ANY
STATE. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE
OR TRANSFER.
9. (a) This Warrant may be exercised for all or part of the shares
covered hereby. In the event of a partial exercise of this Warrant, the Company
will issue to the holder hereof the number of shares of Common Stock purchased
under this Warrant, together with a new, similar Warrant for the unused portion.
This Warrant may be subdivided into or combined with similar Warrants at any
time, at the option of the holder hereof, at the principal office of the Company
in Houston, Texas.
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(b) The Company shall not be required to issue fractional shares of
Common Stock upon any exercise of Warrants. As to any final fraction of a share
in which the same holder of one or more Warrants, the rights under which are
exercised in the same transaction, would otherwise be entitled to purchase upon
such exercise, the Company shall pay a sum in cash equal to the excess of the
market value of such fractional share (determined in such reasonable manner as
the Board of Directors of the Company may prescribe) over the proportional part
of the exercise price represented by such fractional share.
10. The holder of this Warrant shall not be entitled, as such, to any
of the rights of a stockholder of the Company.
11. This Warrant is being issued in connection with that certain
Amended and Restated Consulting Agreement dated of even date herewith, executed
by and between the Company and Xxxxxxxx.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS WARRANT TO BE EXECUTED BY
THE PRESIDENT EFFECTIVE AS OF _, 2001.
PRO SQUARED, INC.
By:
Xxxxx Xxxxxxxx, President
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PURCHASE FORM
The undersigned, the Holder of the within Warrant, hereby irrevocably
elects to exercise the purchase rights represented by said Warrant for, and to
purchase thereunder, shares of Common Stock, $0.0001 par value per share, of Pro
Squared, Inc. and herewith makes payment of $____________- in cash
therefor and requests that the certificates for such shares be
issued in the name of __________________________________ and delivered
to____________________________________________________________whose
address
_______________________________________________________________________
and, if such shares shall not be all of the shares purchasable hereunder, that a
new Warrant of like tenor for the balance of the shares purchasable hereunder be
delivered to the undersigned.
Dated:
Name:
Title:
Address:
Social Security
or Tax I. D. No.
or incentive stock option plans. These may be adjusted upward or downward on a
pro rata basis dependent on market conditions.
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EXHIBIT "A"
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Description of Services
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Xxxxxxx X. Xxxxxxxx will provide strategic advice to Your company until December
31, 2003. Our responsibilities will include recommending experienced public
relations, accounting, legal and corporate communications professionals,
marketing strategies and other advisory services.
