Exhibit 10.16
AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement is made as of the 27th day
of July, 2006, by and between Poseidis, Inc. (the "Company"), a corporation duly
organized and existing under the laws of Florida with offices at 000 Xxxxxxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000, and Xxxxxxxxxx Xxxxxxxxxxx (the "Consultant"),
with an address of 000 Xxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, Company is engaged in the business of mineral water resources
exploitation, bottling and distributing; and the Consultant is engaged in the
business of creating, marketing and branding food products. In addition, the
Consultant renders consulting services for planning and implementation of new
business plans and marketing strategies related to new business opportunities
including the La Troliere water spring;
WHEREAS, the Company retained the services of the Consultant, and the
Company and the Consultant have previously entered into consulting agreements
pursuant to which the Consultant has provided consulting services to the Company
and the Company has issued and delivered to the Consultant 6,653,000 shares of
the Company's common stock (the "Shares") in payment of consulting fees; and
WHEREAS, the Company has determined that errors occurred in the historical
accounting treatment of the consulting fees and the issuance of the Shares and
in the calculation of the price per share applicable to the Shares;
WHEREAS, the Company and the Consultant desire to correct such errors and
to consolidate, amend, and restate the terms of the previous consulting
agreements as set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth and intending to be legally bound thereby, the Corporation
and the Consultant hereby agree as follows:
1. The Company hereby confirms retaining the services of the Consultant for
the period commencing January 1, 2001 and terminating on December 31, 2005. In
exchange for the Consulting Services rendered (as that term is defined herein)
during such five-year period, the Consultant and the Company have agreed upon,
and the Consultant has received from the Company, a fee of 6,653,000 shares of
the Company's common stock. The Consultant will be able to request additional
issuance of shares, in a quantity to be validated and approved by the Board, to
individuals and/or corporation that will be necessary, and of significant use in
order to assist the Consultant in the definition and implementation of the
business plan, new products development, market analysis, and more generally all
activities directly related to its mission for the Company. The Consultant
agrees not to transfer the Shares (or any portion of the Shares) directly or
indirectly to any third party for a period of two years commencing July, 11,
2005, except to a purchaser who is acquiring substantially all the assets of the
Company or at least 75% of the Company's issued and outstanding common stock.
2. The Consultant shall, employing his best efforts, assist the Company by
providing the following ("Consulting Services"): business strategy services and
provide the Company with a new business plan and strategy for the Source in La
Troliere, France which shall include new product line development, derived
communication strategies, as well as marketing strategies and implementation of
such new business plan strategy.
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3. The Consultant shall be an independent contractor and shall have no
right or authority to assume or create any obligations or responsibility,
express or implied, on behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No provision of this
Agreement shall be construed to preclude Consultant from pursuing other
consulting projects.
4. The Consultant (including any person or entity acting for or on behalf
of the Consultant) shall not be liable for any mistakes of fact, errors of
judgment, for losses sustained by the Company or any subsidiary or for any acts
or omissions of any kind unless caused by the negligence or intentional
misconduct of the Consultant or any person or entity acting for or on behalf of
the Consultant.
5. The Company and its present and future subsidiaries jointly and
severally, agree to indemnify and hold harmless the Consultant against any loss,
claim, damage or liability whatsoever, (including reasonable attorneys fees and
expenses), to which such indemnified party may become subject as a result of
performing any act (or omitting to perform any act) contemplated to be performed
by the Consultant pursuant to this Agreement if such act or omission did no
violate the provisions of Section 4 of this Agreement. So long as the Company
has not provided counsel to the indemnified party in accordance with the terms
of this Agreement, the Company and its subsidiaries agree to reimburse the
defense of any action or investigation (including reasonable attorneys fees and
expenses), subject to any understanding from such indemnified party to repay the
Company or its subsidiaries if it is ultimately determined that such indemnified
party is not entitled to such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any indemnified party, it
shall notify the Company within twenty (20) days after the indemnified party
receives notice of such action, suit or such threat. The Company shall have the
right to appoint the Company's counsel to defend such action, suit or
proceeding, provided that such indemnified party consents to such representation
by such counsel, which consent shall not be unreasonably withheld. In the event
any counsel appointed by the Company shall not be acceptable to such indemnified
party, then the Company shall have the right to appoint alternative counsel for
such indemnified party reasonably acceptable to such indemnified party, until
such time as acceptable counsel can be appointed. In any event, the Company
shall, at its sole cost and expense, be entitled to appoint counsel to appear
and participate as co-counsel in the defense thereof. The indemnified party, or
its co-counsel, shall promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served or submitted in any of
the aforementioned. No indemnified party shall enter into any settlement without
the prior written consent of the Company, which consent shall not be
unreasonably withheld.
6. This Agreement shall be binding upon the Company and the Consultant and
their successors and assigns. This Agreement terminates as of December 31, 2005
except as to the restrictions on the transferability of the Shares and the
indemnification terms set forth herein.
7. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement
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containing any such provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (ii) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
8. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of any
other provisions hereof (whether or not similar) shall be binding unless
executed in writing by both parties hereto nor shall such waiver constitute a
continuing waiver.
9. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which shall
constitute one and the same Agreement.
10. The Parties agree that should any dispute arise in the administration
of this Agreement, that the agreement shall be governed and construed by the
Laws of the State of Florida, United States of America.
11. This Agreement contains the entire agreement between the Parties with
respect to the consulting services to be provided to the Company by the
Consultant and supersedes any and all prior understandings, agreements or
correspondence between the Parties.
IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be signed by duly authorized representatives as of the day and year
first above written.
Poseidis, Inc. Consultant
A Florida Corporation
By: /s/ Xxxx X. XxXxxxxx /s/ Xxxxxxxxxx Xxxxxxxxxxx
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Xxxx X. XxXxxxxx Xxxxxxxxxx Xxxxxxxxxxx
Executive Vice President and
Chief Financial Officer
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