CONSULTING AGREEMENT
Exhibit
10.12
THIS
CONSULTING AGREEMENT (this “Agreement”), dated as of December 17, 2007, by and
between Xxxxxx Xxxxxxx, an individual residing at
_________________________________ (the “Consultant”), and United Benefits &
Pension Services, Inc., a Delaware corporation having an address at 000 Xxxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the
“Company”).
WITNESSETH
WHEREAS
the
Company was formed to create a national third party pension and benefit
administration services company specializing in servicing Xxxx-Xxxxxxx
multi-employer benefit plans (the “Business”) through a strategy of acquiring
regional Xxxx-Xxxxxxx third party pension and benefit administration services
companies;
WHEREAS
the
Consultant has extensive experience in the financial services industry and
the
benefits and pension plan administration business;
WHEREAS
the
Company desires to engage the Consultant, and the Consultant desires to be
engaged by the Company, upon the terms and conditions set forth herein;
and
WHEREAS
the
Company has entered into an Agreement and Plan of Merger, dated as of November
30, 2007, among the Company, UBPS Acquisition Sub, Inc. (the “Subsidiary”) and
Associated Third Party Administrators, a California corporation (“ATPA”),
pursuant to which the Company will acquire ATPA, a pension administration and
benefit services company specializing in serving the Xxxx-Xxxxxxx multi-employer
plan market, through the merger of Subsidiary with and into ATPA and, as a
result, ATPA will become a wholly-owned Subsidiary of the Company (the “ATPA
Acquisition”);
NOW,
THEREFORE,
the
parties hereto hereby agree as follows:
1. Consulting
Relationship.
1.1 Scope
of Engagement.
Effective upon the Effective Date (as hereinafter defined), the Company, on
behalf of itself, ATPA, any future subsidiary of the Company or its successors
and assigns, hereby engages the Consultant, and the Consultant hereby agrees
to
be engaged by the Company, ATPA, any future subsidiary of the Company or its
successors and assigns, to perform the services set forth in Appendix I hereto
(the “Services”).
1.2 Consulting
Term.
The
term of this Agreement (the “Consulting Term”) shall be two years, commencing on
the date of, and immediately following, the closing of the ATPA Acquisition
(the
“Effective Date”), unless sooner terminated in accordance with this Agreement.
If the parties mutually agree, in writing, this Agreement may be extended for
subsequent terms of one (1) year each, unless sooner terminated in accordance
with the provisions of Section 5.
1.3 Standards
of Performance.
The
Consultant agrees to provide the Services to the best of his ability and in
accordance with the highest professional standards. The Consultant shall devote
such amount of his time to the performance of the Services as is reasonably
necessary to perform his duties under this Agreement. The Consultant
acknowledges that this is a personal services agreement, and the Consultant
shall not employ, retain, engage, hire, subcontract with, or otherwise use
any
third party or third parties to perform the Services without the prior written
consent of the Company, which consent may be withheld for any reason or for
no
reason, in the sole discretion of the Company.
2. Compensation.
2.1 Consulting
Charges.
As
compensation for the Consultant’s provision of the Services, the Company, its
successors or assigns, either directly or through ATPA or any future subsidiary
of the Company, shall pay to the Consultant the amounts set forth on Appendix
II
hereto (the “Consulting Charges”), subject to and payable upon the acquisition
by the Company, ATPA or any future subsidiary of the Company or its successors
or assigns of any Introduced Acquisition Targets (as defined in Appendix I),
whether by asset purchase, merger, stock purchase or otherwise; provided,
however,
that
the amount of Consulting Charges payable to the Consultant as set forth in
Appendix II shall be reduced by the amount of any fees or commissions payable
by
the Company, ATPA or any future subsidiary of the Company, or its successors
or
assigns, to any broker or finder retained by the Company, ATPA or such other
subsidiary or its successors or assigns in connection with the acquisition
of
the Introduced Acquisition Target with respect to which such Consulting Charges
are due. The Consulting Charges shall be payable in cash and shares of common
stock of the Company (the “Shares”), in the proportions set forth in Appendix
II. The number of Shares to be issued to the Consultant in accordance with
Appendix II, shall be calculated by dividing (x) the dollar amount of the
Consulting Charges payable to the consultant in Shares by (y) the Current Market
Price (as defined below) per share of the Company’s common stock.
Notwithstanding the foregoing, upon the closing of the ATPA Acquisition, the
Company, its successors or assigns shall pay to the Consultant a Consulting
Charge in connection with the ATPA Acquisition in the amount of $150,000,
payable in its entirety by the issuance to the Consultant of 60,000 Shares,
it
being understood and agreed that no other Consulting Charge or other fees shall
be payable to the Consultant in connection with the ATPA Acquisition.
For
the
purpose of any computation under this Section 2.1, the “Current Market Price”
per share of the Company’s common stock on any date shall be deemed to be the
average of the daily closing prices for the 30 consecutive trading days
immediately preceding the date in question. The closing price for each day
shall
be the last reported sales price regular way or, in case no such reported sales
takes place on such day, the closing bid price regular way, in either case
on
the principal national securities exchange (including, for purposes hereof,
any
national market of the Nasdaq Stock Market) on which the Company’s common stock
is listed or admitted to trading or, if the Company’s common stock is not listed
or admitted to trading on any national securities exchange, the closing price
or
the highest reported bid price for the common stock on the OTC Bulletin Board
or
a similar organization if the Company’s Common Stock is no longer listed on the
OTC Bulletin Board. If on any such date the Company’s Common Stock is not listed
or admitted to trading on any national securities exchange and is not quoted
on
the OTC Bulletin Board or any similar organization, the “Current Market Price”
will be the fair value of a share of the Company’s common stock on such date, as
determined in good faith by the board of directors of the Company (with the
Consultant not participating in such determination), whose determination shall
be conclusive absent manifest error.
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2.2 The
Shares; Repurchase of the Shares The
Consultant acknowledges that the Shares will not be registered under any Federal
or state securities laws, that the Consultant would be acquiring such Shares
for
his own account, for investment purposes only and not for distribution or
resale, that there may be no market for the Shares and that the certificates
evidencing such Shares shall bear the following legend or a legend of similar
effect:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED
OR
HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT OR APPLICABLE STATE
LAW HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
ITS
COUNSEL OR AN OPINION OF OTHER COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.”
2.3 In
connection with the financing transactions to be consummated to fund the ATPA
Acquisition, the Consultant agrees to sign an agreement to the effect that,
without the prior written consent of the placement agents in such financings,
he
will not, for a period of one year after the date of completion of such
financings, directly or indirectly, offer, pledge, sell, contract to sell,
sell
any option or contract to purchase, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of any shares of the Company’s
common stock (including, without limitation, the Shares) or any securities
convertible into or exercisable for the Company’s common stock. In addition, the
Consultant covenants and agrees not to transfer, assign or otherwise convey
any
interest in such Shares without the prior written consent of the Company within
90 days prior to a Fundamental Event (as hereinafter defined); provided,
however,
that
such period may be subject to extension in accordance with the Company’s xxxxxxx
xxxxxxx policies including in the event that the Company is a public company
required to file reports under the Securities and Exchange Act of 1934, as
amended.
2.4 Upon
termination of the Consultant’s Services under this Agreement prior to a
Fundamental Event, the Company, its successors or assigns may for any reason
or
for no reason, in the sole discretion of the Company, its successors or assigns,
require the Consultant to sell all of the Shares paid to Consultant pursuant
to
this Agreement back to the Company, its successors or assigns, or its designee
for a price per share equal to the Current Market Price per share (as defined
and determined in Section 2.1) on the date of such termination.
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2.5 For
purposes of this Section 2.2, the term “Fundamental Event” shall mean the
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (i)
a
merger, consolidation, reorganization, or business combination, or (ii) the
acquisition of assets or stock of another entity, in each case other
than
a
transaction (y) which results in the Company’s voting securities outstanding
immediately before the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the Company or
the
person that, as a result of the transaction, controls, directly or indirectly,
the Company or owns, directly or indirectly, all or substantially all of the
Company’s assets or otherwise succeeds to the business of the Company (the
Company or such person, the “Surviving Entity”)) directly or indirectly, at
least a majority of the combined voting power of the Surviving Entity’s
outstanding voting securities immediately after the transaction; and (z) after
which no person or group beneficially owns voting securities representing 50%
or
more of the combined voting power of the Successor Entity; provided,
however,
that no
person or group shall be treated for purposes of this clause as beneficially
owning 50% or more of combined voting power of the Successor Entity solely
as a
result of the voting power held in the Company prior to the consummation of
the
transaction.
2.6 Reimbursement
of Expenses.
The
Company, ATPA, any future subsidiary of the Company or its successors or assigns
shall reimburse the Consultant for his reasonable travel, lodging, meals and
other reasonable expenses (including, without limitation, reasonable expenses
for entertainment of Potential Acquisition Targets) incurred in furtherance
of
providing the Services hereunder, subject to the Consultant’s submission of an
itemized statement (the “Expense Statement”) of such expenses, signed by the
Consultant and stating that the expenses set forth in such Expense Statement
were incurred in furtherance of providing the Services hereunder, together
with
copies of receipts, invoices, paid bills or similar documentation substantiating
the expenses set forth in such Expense Statement. Expenses for which
reimbursement will be sought which, individually or aggregated with all other
expenses incurred from the last reimbursable expense paid by the Company, exceed
$5,000 shall require the prior written consent of the Company, which consent
may
be withheld for any reason or for no reason in the sole discretion of the
Company.
3. Exclusivity;
Non-Solicitation; Confidentiality
3.1 Exclusivity.
The
Consultant shall render the Services exclusively to and for the benefit of
the
Company, ATPA or any future subsidiary of the Company or its successors and
assigns during the Consulting Term. During the Consulting Term and for a period
of one (1) year after the termination or expiration thereof, the Consultant
shall not, without the Company’s prior written consent, which consent may be
withheld by the Company for any reason or for no reason, in its sole
discretion:
(a)
act
as a consultant , broker or finder for, or otherwise provide, directly or
indirectly, services similar to the Services to any direct or indirect
competitor of the Company or any entity or individual (a “Person”) other than
the Company, ATPA or any future subsidiary of the Company or its successors,
or
assigns (a “Third Party”), engaged in a business similar to the Business, or any
aspect thereof; or
(b)
introduce to any Third Party doing business anywhere in the United States any
Person that is engaged in a business similar to the Business or that may
otherwise be suitable for acquisition by the Company ATPA or any future
subsidiary of the Company, its successors or assigns, as determined by the
Company, in its sole discretion.
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3.2 Non-Solicitation.
In
recognition of the considerations described in Section 3.5 of this Agreement,
and that the following covenant is a specific condition for engagement of
Consultant, Consultant covenants and agrees, on behalf of himself and his
affiliates, that during the Consulting Term and for a period of one (1) year
after the termination or expiration thereof, neither the Consultant nor any
of
his affiliates will directly or indirectly, either alone or in association
with
others:
(a)
recruit, solicit or induce, or attempt to induce, any employee, agent or
consultant of the Company, its subsidiaries, affiliates, successors or assigns
to terminate his or her employment or engagement or to otherwise sever their
relationship with the Company, its subsidiaries, affiliates, successors or
assigns;
(b)
solicit for employment, hire or engage as an independent contractor, or agree
to
hire or engage as an independent contractor, any individual who was employed
by
the Company, its subsidiaries, affiliates, successors or assigns at any time
during the Consulting Term other than an individual whose employment with the
Company terminated six (6) months or longer prior to the Consultant’s
solicitation, hiring, engagement of, or agreement to hire or engage, such
individual;
(c)
solicit, divert, take away, terminate or reduce or attempt to divert, take
away,
terminate or reduce the business or patronage of any Person who was a clients,
customer or account, or prospective client, customer or account, of the Company
or any of its subsidiaries, affiliates, successors or assigns during the
Consulting Term; or
(d)
acquire, or assist, advise or encourage any Third Party in acquiring, directly
or indirectly, (w) control of any Potential Acquisition Target (as hereinafter
defined) or (x) any interest in a Potential Acquisition Target’s securities,
business or assets or (y) finance any such acquisition to be made by any Third
Party or (z) enter into any discussion, negotiations, or arrangements with
any
Third Party with respect to any of the foregoing.
3.3 For
purposes of this Agreement, the phrase “prospective client, customer or account”
shall mean a Person whom the Company, its subsidiaries, affiliates, successors
or assigns, at some time during the Consulting Term, solicits or intends or
prepares to solicit as a customer, client or account of the Company, its
subsidiaries, affiliates, successors or assigns either in person or by
customized written materials prepared at the request or with the consent of
such
individual or entity during the Consulting Term. With respect to entities
consisting of more than one business unit, a “prospective client, customer or
account” shall be limited to the business units to which the Company, its
subsidiaries, affiliates, successors or assigns addressed, or intends or
prepares to address, its solicitation.
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3.4 For
purposes of this Agreement, the term “Potential Acquisition Target” shall mean
any entity or business that the Company, its subsidiaries, affiliates,
successors or assigns potentially may acquire or is possibly considering
acquiring.
3.5 Confidentiality.
Consultant acknowledges that he has been and, in the course of providing the
Services, will be provided access to Proprietary Information (as hereinafter
defined) concerning the Company its subsidiaries, affiliates, successors and
assigns. The Consultant shall keep confidential the Proprietary Information
and
shall not use or disclose such Proprietary Information to any Third Party for
any purpose, except when and to the extent required in providing the Services.
In the event of the termination of the Consultant’s consulting relationship with
the Company, ATPA or any future subsidiary or its successors or assigns the
Consultant will upon request deliver to the Company, ATPA or any future
subsidiary or its successors or assigns or destroy and erase (and certify to
the
Company, ATPA or any future subsidiary or its successors or assigns as to such
destruction and erasure), all documents, irrespective of who prepared or created
such document, containing any Proprietary Information.
3.6 As
used
herein, the term “Proprietary Information” shall mean information or data of the
Company, its subsidiaries, affiliates, successors or assigns whether oral or
written, including, without limitation, information or data in an electronic
or
other intangible medium, and whether or not labeled or otherwise designated
“proprietary” or “confidential” or with words of similar effect, including,
without limitation, trade secrets, customer lists, contracts (including the
details and provisions thereof), the identity of acquisition targets (whether
introduced by the Consultant or otherwise) or Potential Acquisition Targets,
acquisition plans, business plans, marketing plans, pricing, budgets,
unpublished financial statements, strategies, forecasts, processes, formulae,
data and know-how, improvements, inventions, techniques, computer programs
(source and object codes), memoranda, notes, reports, and customer and employee
lists. Notwithstanding the foregoing, the term “Proprietary Information” shall
not include (i) any information that is generally available to the public and
easily accessible from sources other than the Company, its subsidiaries,
affiliates, successors or assigns (ii) any information received by the
Consultant from a third party without obligation of confidentiality, other
than
information received from a Potential Acquisition Target during the course
of
any discussions or negotiations between the Company, its successors or assigns
and such Potential Acquisition Target or in connection with the Services or
(iii) any information the Consultant can demonstrate was developed independently
by the Consultant without the use of confidential information of the Company.
3.7 The
parties acknowledge that Consultant’s breach of the covenants in this Agreement
would cause irreparable damage to the Company, its subsidiaries, affiliates,
successors and/or assigns for which monetary damages would not be adequate.
Accordingly, the parties agree that, in the event of a breach, or a threatened
breach, by Consultant of any of the covenants contained in this Agreement,
the
Company, its subsidiaries, affiliates, successors or assigns shall be entitled
to obtain from any court of competent jurisdiction specific performance of
this
Agreement as a remedy for such actual or threatened breach of this Agreement,
which remedy shall be in addition to all other remedies available to the
Company, its subsidiaries, affiliates, successors or assigns at law or equity.
The Consultant hereby consents to the entry of a temporary restraining order
or
preliminary or ex parte injunction enjoining the Consultant from breaching
or
further breaching, as the case may be, this Agreement, in addition to any other
remedies available at law or equity, to enforce the provisions
hereof.
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3.8 If
any
restriction set forth in this Section 3 is held by any court of competent
jurisdiction to be unenforceable or invalid because of the duration of such
provision or the scope of activities or geographic area covered thereby, then
the duration, scope of activities and/or geographical area of such provision
shall be deemed to be limited to the extent necessary, and only to such extent,
to make such provision valid and enforceable.
3.9 The
provisions of this Section 3 shall survive the termination of this
Agreement.
4. Independent
Contractor Status; Taxes; Compliance with Laws
4.1 The
parties hereby acknowledge that the Consultant is being retained as an
independent contractor and neither the Consultant, nor any of his agents, shall
be deemed employees of the Company, its subsidiaries, affiliates, successors
or
assigns. The Consultant shall be responsible for determining the manner and
means by which the Consultant performs the duties and responsibilities assigned
to the Consultant under this Agreement. Nothing in this Agreement shall be
construed to create a joint venture, agency or partnership relationship between
the parties.
4.2 The
Consultant shall be solely responsible for the payment of all income and other
taxes relating to his compensation hereunder and he acknowledges that no payroll
or employment taxes of any kind shall be withheld or paid by the Company, its
subsidiaries, affiliates, successors or assigns with respect to any payments
to
the Consultant.
4.3 The
Consultant acknowledges that any Shares issued to Consultant pursuant to this
Agreement may constitute taxable income for the tax year in which such Shares
are issued to the Consultant and the Consultant agrees that he shall be solely
liable for payment of any taxes which may be imposed on the Consultant by any
Federal, state or local taxing authority in connection with the issuance to
the
Consultant of such Shares.
4.4 The
Consultant shall comply with all applicable laws and regulations in the
performance of the Services.
5. Early
Termination.
The
Consulting Term shall terminate upon the occurrence of any of the
following:
5.1 At
the
election of either party by giving not less than 30 days’ prior written notice
to the other;
5.2 At
the
election of the Company, its successors or assigns, for Cause (as hereinafter
defined), immediately upon written notice by the Company to the Consultant.
For
purposes of this Section 5, “Cause” for termination shall be deemed to exist
upon a good faith finding by the Company that the Consultant:
(a)
failed or refused to perform the Services;
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(b)
has
been repeatedly inattentive to the performance of the Services;
(c)
failed or refused to follow the reasonable requests of the Company, its
successors or assigns hereunder;
(d)
committed any act involving dishonesty, fraud or moral turpitude [in the
performance of the Services];
(e)
engaged in misconduct or gross negligence in the performance of the Services;
(f)
has
been convicted of, or entered a plea of guilty or nolo contendere with respect
to, a felony;
(g)
engaged in conduct of a criminal nature which has, or may have, a material
adverse effect on the business or reputation of the Company, its subsidiaries,
affiliates, successors or assigns, or
(h)
materially breached this Agreement.
With
respect to any alleged act or occurrence constituting “Cause” within subsection
5.2(a), (b), (c) or (h), the Consultant shall not be deemed to have been
terminated for Cause unless the Consultant has been provided with notice of
the
circumstances giving rise to the determination that such Cause exists and the
Consultant fails to cure the act or occurrence giving rise to such “Cause” (but
only to the extent curable in full) within 15 days of such notice, unless an
earlier cure period is necessary to avoid material adverse harm to the Company,
its subsidiaries, affiliates, successors or assigns;
5.3 Upon
the
death or Disability of the Consultant. As used in this Agreement, the term
“Disability” shall mean the inability of the Consultant, with reasonable
accommodation to the extent required by State or Federal law, due to a physical
or mental illness or injury, to substantially perform the Services for a period
of either (i) ninety (90) consecutive days during or (ii) ninety (90)
non-consecutive days during any 360-day period.
5.4 A
determination of the existence of a Disability shall be made by a physician
designated by the Company, its successors or assigns. Consultant
agrees
to
make himself available and to cooperate in any reasonable examination by a
physician selected by the Company, its successors or assigns for the purpose
of
determining disability pursuant to Section 5.3.
6. Effect
of Termination.
6.1 In
the
event the Consultant’s engagement hereunder is terminated by the Company, its
successors or assigns for Cause pursuant to Section 5.2 or at the election
of
the Consultant pursuant to Section 5.1, the Company, its successors or assigns
shall:
(a)
reimburse the Consultant for accrued expenses pursuant to Section
2.3;
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(b)
pay
to the Consultant any accrued and unpaid Consulting Charges with respect to
acquisitions which have closed prior to the date of such
termination;
and
the
Consultant shall not be entitled to any further compensation from the Company,
its successors or assigns .
6.2 Upon
the
expiration of the Consulting Term or in the event that this Agreement is
terminated by reason of the Consultant’s death or Disability pursuant to Section
5.3, or by the Company other than for Cause, the Company, its successors or
assigns shall:
(a)
pay
to the Consultant or his estate, as the case may be, the Consulting Charges
that
would otherwise be payable to the Consultant up to the date of such termination,
death or Disability;
(b)
reimburse the Consultant for any expenses incurred up to the date of such
termination, death or Disability pursuant to Section 2.3; and
(c)
to
the extent the Consultant has introduced an acquisition target to the Company,
its successors or assigns and the Company, ATPA, any future subsidiary of the
Company or its successor or assign closes such acquisition within six months
of
the date of such termination, death or disability, then the Company, its
successor or assign shall pay to the Consultant or his estate, as the case
may
be, the Consulting Charges with respect to such acquisition that would otherwise
be payable to the Consultant;
provided,
that
all payments required by this Section 6.2 shall be subject to receipt by the
Company, its successors and assigns of (y) a general release executed by the
Consultant or his estate, as the case may be, releasing the Company, its
subsidiaries, affiliates, successors, assigns, and each of their respective
directors, officers and employees, and (z) a severance agreement executed by
the
Consultant or his estate, as the case may be, in a form prepared by and
satisfactory to counsel for the Company, its successors or assigns.
7. Exculpation;
Indemnification.
7.1 The
Consultant shall not be liable to the Company for any damages, losses, claims
or
liabilities incurred by the Company or any third party resulting from the
performance of the Services by the Consultant or the actions or omissions of
the
Consultant in connection therewith, provided,
however,
that
the Consultant shall be liable for, and shall defend, indemnify and hold
harmless the Company, its affiliates, subsidiaries, successors, assigns, and
each of their respective directors, officers and employees from and against,
any
and all claims, losses, damages, injuries, liabilities, costs and expenses
arising from the Consultant’s gross negligence, willful misconduct, or breach of
this Agreement.
7.2 The
Company, to the extent permitted by Delaware law, or the Company’s successors or
assigns, to the extent permitted by the law of the jurisdiction in which such
successor or assign subsists, shall indemnify, defend and hold harmless the
Consultant from and against any and all claims, losses, damages, injuries,
liabilities, costs and expenses claimed by any third party resulting from the
performance of the Services by the Consultant or the actions or omissions of
the
Consultant in connection therewith, provided
that the
Consultant has acted in good faith and in a manner reasonably believed to be
in
the best interests of the Company, and provided
further
that the
Company, its successors or assigns shall not be obligated to indemnify the
Consultant for any claims, losses, damages, injuries, liabilities, costs or
expenses arising from the Consultant’s gross negligence, willful misconduct or
breach of this Agreement.
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8. Binding
Effect.
The
terms and provisions of this Agreement shall be binding upon, and inure to
the
benefit of, the Consultant and the Company and their respective successors
and
permitted assigns.
9. Assignment.
This
Agreement is personal as to the Consultant and shall not be assigned by the
Consultant without the prior written consent of the Company, which consent
may
be withheld by the Company for any reason or for no reason, in its sole
discretion. The Company shall have the right to assign this Agreement to any
corporation or other entity (including without limitation, ATPA), which (i)
controls, is controlled by, or is under common control with the Company (ii)
succeeds to the assets of the Company as a result of a merger, consolidation
or
other reorganization involving the Company.
10. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to its conflict of laws
principles. Any dispute arising out of or relating to this Agreement shall
be
resolved exclusively by state or federal courts sitting in New York County,
State of New York. Each party hereby irrevocably submits to the jurisdiction
of
any such court and waives any objection to such jurisdiction, including, without
limitation, the defenses of inconvenient forum and lack of personal
jurisdiction.
11. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and given by hand delivery, by nationally recognized overnight courier
service or by certified or registered mail, postage prepaid, return receipt
requested, to the respective addresses set forth in the preamble to this
Agreement or to such other address as either party may designate by written
notice to the other party.
12. Severability.
If any
covenant, condition or other provision of this Agreement is held by a court
of
competent jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any of the remaining covenants, conditions
or
provisions hereof, and such remaining covenants, conditions and provisions
of
this Agreement shall continue in full force and effect.
13. Entire
Agreement; Amendment.
This
Agreement, including the Appendices hereto, sets forth the entire agreement
and
understanding among the parties as to the subject matter hereof and merges
and
supersedes all prior discussions, agreements and understandings of every kind
and nature among them with respect to such subject matter. There are no
representations or understandings between the parties except as provided herein.
This Agreement may not be amended or modified except by a written amendment
duly
executed by the parties.
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14. Captions.
Captions contained in this Agreement have been inserted for convenience of
reference only and in no way define, interpret or limit the terms of this
Agreement, or any of the provisions hereof.
15. Counterparts.
This
Agreement may be executed in any number of 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 caused this Agreement to be executed on the date first above
written.
|
COMPANY:
|
||
|
UNITED
BENEFITS & PENSION SERVICES, INC.
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxx
Xxxxxxxxx
Chief
Executive Officer
|
||
|
CONSULTANT:
|
||
|
/s/
Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
|
||
-
11
-
APPENDIX
I TO CONSULTING AGREEMENT
DESCRIPTION
OF SERVICES:
The
Consultant shall perform the following services on behalf and for the benefit
of
the Company, ATPA, any future subsidiary of the Company or its successors or
assigns:
|
1.
|
Provide
ATPA, any future subsidiary of the Company or its successors or assigns
with introductions to potential acquisition
targets;
|
|
2.
|
Participate
in discussions between the Company, ATPA, any future subsidiary of
the
Company or its successors or assigns, and Potential Acquisition Targets
which have been introduced to the Company, ATPA, any future subsidiary
of
the Company or its successors or assigns by the Consultant in connection
with the Services (an “Introduced Acquisition Target”) as requested by the
Company, ATPA, any future subsidiary of the Company or its successors
or
assigns.
|
|
3.
|
Between
the execution of a binding or non-binding letter of intent between
the
Company, ATPA, any future subsidiary of the Company or its successors
or
assigns, on one hand, and any Introduced Acquisition Target, on the
other
hand, and prior to the closing of the transactions contemplated thereby,
meet with any clients representing more than 5% of the gross revenue
of
such Introduced Acquisition Target, including, without limitation,
such
client’s directors, trustees, chairman, union president or other members
of such client’s senior management as the Company, ATPA, any future
subsidiary of the Company or its successors or assigns, may deem
necessary
or appropriate, to insure that such client will continue to engage
the
Introduced Acquisition Target (or such other entity as may succeed
to the
assets and business of the Introduced Acquisition Target following
the
contemplated acquisition) after the consummation of the transaction
contemplated by the letter of intent;
|
|
4.
|
Assist
in responding to questions of any Introduced Acquisition Target,
its
officers, directors or principal shareholders from the date the Introduced
Acquisition Target is first introduced to the Company, its successors
or
assigns through the closing of an acquisition by the Company, ATPA,
any
future subsidiary of the Company or its successors or assigns of
such
Introduced Acquisition Target;
|
|
5.
|
Assist
in discussions with potential investors;
and
|
|
6.
|
Serve
as a director and Chairman of the Board of the Company, its successors
or
assigns subject to the approval of the stockholders or directors
of the
Company, its successors or
assigns.
|
-
12
-
APPENDIX
II TO CONSULTING AGREEMENT
CONSULTING
CHARGES AND PAYMENT TERMS:
The
amount of Consulting Charges shall be determined and payable as
follows:
Consulting
Charges
|
Deal Value
|
Payout
|
CASH
|
STOCK
|
||||||||||
|
(Acquisition Price)
|
|||||||||||||
|
%
|
Total
Compensation
(thousands)
|
||||||||||||
|
up
to $5 million
|
1.5
|
Up to $75
|
75
|
%
|
25
|
%
|
|||||||
|
Greater
than $5 million
|
1
|
* |
Up to $150
|
** |
75
|
%
|
25
|
%
|
|||||
*
Represents 1% of the acquisition price in excess of $5 million
**
Represents a cap on total compensation which shall not exceed
$150,000
-
13
-
