EXHIBIT 10.1
AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement ("Agreement") is made and
entered into this 16th day of April, 2004 (the "Effective Date") by and
between Xxxxxx Xxxxxxxx (the "Consultant") and Spectrum Sciences & Software
Holdings Corp. (the "Company").
WHEREAS, the Company and Consulting entered into a Consulting Agreement
dated March 11, 2004 (the Initial Agreement"), pursuant to which the Company
engaged Consultant to perform certain corporate planning, business development,
and financial strategy services for the Company.
WHEREAS, certain provisions of the Initial Agreement have been modified by
agreement among the parties; and
WHEREAS, the parties hereto wish to amend and restate the Initial Agreement
to reflect the changes agreed to by the parties.
NOW IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKING HEREIN
CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED THE PARTIES AGREE AS FOLLOWS:
1. ENGAGEMENT OF CONSULTANT: The Company hereby engages Consultant and
Consultant hereby agrees to hold itself available to render, and to render at
the request of the Company, independent advisory consulting services concerning
the following:
a) develop an in-depth familiarization with the Company's business
objectives and bring to its attention potential or actual opportunities which
meet those objectives or logical extensions thereof;
b) alert the Company to new or emerging high potential forms of
production and distribution which could either be acquired or developed
internally;
c) comment on the Company's corporate development including such
factors as position in competitive environment, financial performances vs.
competition, strategies, operational viability, etc.;
d) identify respective suitable merger or acquisition candidates for
the Company, perform appropriate diligence investigations with respect thereto,
advise the Company with respect to the desirability of pursuing such candidates,
and assist the Company in any negotiations which may ensue therefrom; and
e) other such planning and development services, all as requested and
instructed by the Company.
The services to be rendered by Consultant to the Company shall under
NO circumstances include the following:
a) any activities which could be deemed by the Securities and
Exchange Commission to constitute investment banking or any other
activities required by Consultant to be registered as a broker-dealer under the
Securities Act of 1934.
b) services in connection with the offer or sale of securities in a
capital-raising transaction;
c) services that directly or indirectly promote or maintain a market
for the securities of the Company including without limitation the dissemination
of information that reasonably may be expected to sustain or raise or otherwise
influence the price of the securities;
d) services providing investor relations or shareholder communications;
e) consultation in connection with financing that involves any
issuance of the Company's securities, whether equity or debt.
2. TERM: The term of this agreement ("Term") shall begin as of the
Effective Date and shall terminate two (2) years thereafter ("Anniversary
Date"). Consultant shall perform the full term hereof, provided and to the
extent he is compensated as provided herein and requested by Company to so
perform.
3. COMPENSATION: In consideration of the services to be provided for
the Company by Consultant the Company agrees to compensate the Consultant as
follows:
a) Pursuant to the Initial Agreement, the Company issued to Consultant
an option (the "Option") to purchase 9,000,000 shares of the Company's common
stock at an exercise price of the lesser of $1.65 or the fair market value of
the shares at the time of exercise.
b) As soon as practicable after the execution of this Agreement, the
Company agrees to issue to Consultant an option (the "Option") to purchase
9,000,000 shares of the Company's common stock at an exercise price equal to the
greater of $1.95, or sixty percent (60%) of the closing price of the Company's
common stock on the day immediately preceding Consultant's notice to exercise
(the "Option Shares").
c) Additional Compensation.
(1) As soon as practicable after the execution of this Agreement, and
in consideration for (i) procuring the letter of intent with Inland
Fabricators, LLC ("Inland"), (ii) further due diligence assistance
respecting Inland, and (iii) assisting the Company in negotiating the terms
and the closing of the definitive agreement between the Company and Inland,
the Company agrees to issue to Consultant an option (the "Option") to
purchase an 5,000,000 shares of the Company's common stock at an exercise
price of the lesser of $1.65 or the fair market value of the shares at the
time of exercise.
(2) If, during the terms of this Agreement, the Consultant submits
suitable merger or acquisition candidates which, in the aggregate, have
revenues equal to or exceeding $100,000,000 dollars, the Company may, in
its discretion, further compensate Consultant.
d) The Option Shares shall vest immediately upon issuance, and all
shall have "piggyback" or S-8 registration rights.
e) The exercise rights of Consultant shall be limited such that,
unless Consultant gives written notice 75 days in advance to the Company of
Consultant's intention to exceed the Limitation on Conversion as defined herein,
with respect to all or a specified amount of the Option and the corresponding
number of the underlying shares, in no instance shall Consultant (singularly,
together with any Persons who in the determination of the Consultant, together
with the Consultant, constitute a group as defined in Rule 13d-5 of the Exchange
Act) be entitled to exercise the Option to the extent such exercise would result
in Consultant beneficially owning more than five percent (5%) of the outstanding
shares of common stock of the Company. For these purposes, beneficial ownership
shall be defined and calculated in accordance with Rule 13d-3, promulgated under
the Exchange Act (the foregoing being herein referred to as the "Limitation on
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Conversion").
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f) If pursuant to 1(d) above, Consultant introduces a merger or
a combination of sorts with another entity to the Company, the Consultant shall
be entitled to a finder's fee, and the Company shall enter into an agreement
with the Consultant respecting same.
4. INDEPENDENT CONTRACTOR: It is expressly agreed that Consultant is
acting as an independent contractor in performing its services hereunder.
Company shall carry no workmen's compensation insurance or any health or
accident insurance to cover Consultant. The Company shall not pay any
contributions to social security, unemployment insurance, Federal or State
withholding taxes nor pay any other contributions or benefits, which might be
expected in an employer-employee relationship.
5. ASSIGNMENT: This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns but cannot be assigned by Consultant without prior
written consent of Company.
6. EXCLUSIVITY: In order to ensure best efforts on behalf of the
Company, Consultant agrees that during the period of your engagement,
Consultant, nor any person or entity acting on Consultant's behalf or which
Consultant is are a shareholder, partner, interested person, or employee, will
directly or indirectly engage in any consulting arrangements, whether written or
otherwise, with any company, unless, prior to such engagement, Consultant
obtains written consent from the Company.
7. GENERAL PROVISIONS:
a) The Consultant hereby agrees, warrants and covenants that it will
provide to the Company copies of all works product for review, use and retention
as Company sees fit. Consultant further agrees, warrants and covenants not to
utilize or disclose any during the term hereof and for 12 months thereafter.
b) The Consultant agrees to provide full and accurate disclosure of any
and all equity compensation, which Consultant has received or will receive under
this agreement, whereas required under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
c) Governing Law and Jurisdiction: This agreement shall be governed by
and interpreted in accordance with the laws of the state of Delaware. Each of
the parties hereto consents to such jurisdiction for the enforcement of this
agreement and matters pertaining the transaction and activities contemplated
hereby.
d) Attorney's Fees: In the event a dispute arises with respect to this
agreement, the party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorney's fees and expenses
incurred in ascertaining such parties' rights, in preparing to enforce or in
enforcing such parties' right under this agreement, whether or not it was
necessary for such party to institute suit.
e) Complete Agreement: This Agreement supercedes any and all of the
other agreements, either oral or in writing, between the parties with
respect to such subject matter in any manner whatsoever. Each party to
this agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party, or
anyone herein, and that no other agreement, statement or promise not contained
in this Agreement may be changed or amended only by an amendment in writing
signed by all parties or their respective successors-in-interest.
f) Binding: This Agreement shall be binding upon and inure to the
benefit of the successor-in-interest, assignees and personal representatives of
the respective parties.
g) Unenforceable Terms: Any provision hereof prohibited by law or
unenforceable under the law of any jurisdiction in which such provision is
applicable shall adhere to such jurisdiction only to be ineffective without
affecting any other provision of this Agreement. To the full extent, however,
that such applicable law may be waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms, the Parties hereto hereby waive such applicable law knowingly and
understanding the effect of such waiver.
h) Execution Assurances: This Agreement may be executed in several
counterparts and when so executed shall constitute one agreement binding on
all the parties, notwithstanding that all the Parties are not signatory to the
original and same counterpart.
i) Further Assurances: From time to time each party will execute and
deliver such further instruments and will take such other action as any
other party may reasonably request in order to this charge and perform
their obligations and agreement hereunder and to give effect to the
intentions expressed in this agreement.
j) Miscellaneous Provisions: The various heading and numbers
herein and the grouping of provisions of this agreement in to separate articles
and paragraphs are for the purpose of convenience only and shall be considered a
party hereof. The language in all parts of this agreement shall in all cases by
construed in accordance with its fair meanings as if prepared by all parties to
the agreement and not strictly for or against any of the parties.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
day and year first written above.
SPECTRUM SCIENCES &
SOFTWARE HOLDINGS CORP.
By: /s/ Xxxxxxx X. Xxx, Xx. /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxxx X. Xxx, Xx. Xxxxxx Xxxxxxxx
Title: Executive Vice President
