EXHIBIT 10.2
Contract - Xxxxxxx Xxxxxxx
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CONSULTING AND OPTION AGREEMENT
This Consulting and Option Agreement is made and entered into to be effective as
of the date upon which services were first rendered in accordance herewith and
is by and between Xxxxxxx Xxxxxxx ("Consultant") and CNH Holdings Company
("Client"). A. Consultant is willing and able to provide various valuable
services for and on behalf of Client in connection with the business of Client.
B. Client desires to retain Consultant as an independent contractor on behalf of
Client and Consultant desires to be retained in that capacity upon the terms and
conditions hereinafter set forth. In consideration of the foregoing premises,
the mutual promises and agreements hereinafter set forth, and such other and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Client and Consultant agree as follows:
1. Consulting Services. Client hereby retains Consultant as an independent
contractor to Client and Consultant hereby accepts and agrees to such retention.
Consultant shall render to Client services of an advisory or consultative nature
in order to provide for such financial restructuring as is necessary to once
again make Client a viable public entity, and such other and further services to
Client of this nature as it may deem reasonable and necessary from time to time.
It is the intention of the parties that Consultant will gather all
publicly-available information relating to Client and confer with officers and
directors of Client in an effort to consolidate the information obtained for
purposes of discharging the obligations which have been imposed upon Consultant
under this agreement. It is intended that Consultant will use and distribute
this information concerning Client to persons and other parties outside of
Client who Consultant determines, in the sole discretion of Consultant, are
entitled to this information for purposes of Consultant performing in accordance
with the terms and conditions of this agreement. It is not intended that the
performance of the consulting services described herein shall be accomplished
exclusively by Consultant; therefor, Consultant may engage persons as
subcontractors to assist in the discharge of the responsibilities hereunder;
however, any such further employment shall be at the cost and expense of
Consultant.
2. Time, Place and Manner of Performance. Consultant shall be available for
advice and counsel to the officers and directors of Client at such reasonable
and convenient times and places as may be mutually agreed upon. Except as
aforesaid, the time, place and manner of performance of the services hereunder,
including the amount of time to be allocated by Consultant to any specific
service, shall be determined in the sole discretion of Consultant.
3. Term of Agreement. This agreement shall begin when Consultant first began
rendering services for Client, that being on or about October 15, 1997, and
shall terminate when the services have been fully rendered hereunder or when a
change in control of Client shall have occurred.
4. Compensation. Upon termination of this agreement, Client shall pay to
Consultant a fee of $2,500 per month, or, in lieu thereof and at the option of
Consultant, grant Consultant an option to acquire up to 450,000 shares of common
stock of Client. In the event that Consultant exercises his option in this
regards, which may be exercised as to all or any portion, Client shall provide
to Consultant free trading common stock of Client registered under a Form S-8
filed in accordance with the terms and conditions set forth under the Securities
Act of 1933, as amended. The parties have agreed that, although the current
quoted price for the stock is approximately $.01 to $.03 per share, the fair
value of this stock, given the number of shares, does not jive with the current
quotes for the stock. After considering the financial condition and prospects of
Client, the parties have determined that $.50 per share in addition to the
$2,500 per month accrued as a consulting fee is the true market value of the
stock; ergo, the parties have determined that a strike price of $.50 per share
shall apply to the exercise of the option granted.
5. Expenses. Client shall reimburse Consultant on demand for all expenses and
other disbursements, including, but not limited to, travel, entertainment,
mailing, printing and postage, incurred by Consultant, or any of its
subcontractors, on behalf of Client in connection with the performance of the
consulting services pursuant to this agreement. Expenses and disbursements in
excess of $100 shall have Client's prior approval. These expenses shall be paid
in cash, or, at the option of Consultant, in shares of Client's common stock
registered under Form S-8. If this non-transferrable option is exercised, said
shares shall be issued at the fair market value therefor, which Client and
Consultant agree will be the closing inside bid price therefor on the date of
payment.
6. Work Product. It is agreed that, prior to public distribution, all
information and materials produced for Client shall be property of Consultant,
free and clear of all claims thereto by Client, and Client shall retain no claim
of authorship therein.
7. Disclosure of Information. Consultant recognizes and acknowledges that
Consultant has and will have access to certain confidential information of
Client and its affiliates that are valuable, special and unique assets and
property of Client and such affiliates. Consultant will not, during or after the
term of this agreement, disclose, without the prior written consent or
authorization of Client, any such information to any person, except to
authorized representatives of Consultant or its affiliates for purposes of the
services to be rendered under this agreement, for any reason or purpose
whatsoever. In this regard, Client
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agrees that such authorization or consent to disclosure may be conditioned upon
the disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the person to
whom the information is to be disclosed or in compliance with the terms of a
judicial order or administrative process.
8. Nature of Relationship. It is understood and acknowledged by the parties that
Consultant is being retained by Client in an independent capacity, and that in
this connection, Consultant hereby agrees, except as otherwise provided herein,
or unless Client shall have otherwise consented, not to enter into any agreement
or incur any obligation on behalf of Client.
9. Conflict of Interest. Consultant shall be free to perform services for other
persons during the term of this agreement. Consultant will notify Client of the
performance of consulting services for any other person which would conflict
with the obligations of this agreement. Upon receiving such notice, Client may
terminate this agreement or consent to Consultant's outside consulting services.
Failure to terminate this agreement shall constitute Client's ongoing consent to
Consultant's outside consulting activities.
10. Indemnification for Securities Law Violations. Client agrees to indemnify
and hold harmless Consultant and each officer, director or controlling person of
Consultant against any losses, claims, damages, liabilities and /or expenses
(including any legal or other expenses reasonably incurred in investigating or
defending any act or claim in respect thereof) to which Consultant or such
officer, director or controlling person may become subject under the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
because of actions of Client or its agent(s).
11. Miscellaneous Provisions. (a) Notices. Any notices required or permitted to
be given under this agreement shall be sufficient if in writing and delivered or
sent by registered or certified mail to the principle office of each party. (b)
Waiver of Breach. Any waiver by a party of a breach of any provision of this
agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by the waiving party. (c) Assignment. This agreement and
the rights and obligations of the parties hereunder are not assignable by either
party. (d) Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed in accordance with and under and pursuant to the laws of
the State of Nevada and that in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with or by reason
of this agreement, the laws of the State of Nevada shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be instituted. (e)
Severability. All agreements and covenants contained herein are severable, and
in the event any of them shall be held to be invalid by any competent court, the
agreement shall be interpreted as if such invalid agreements or covenants were
not contained herein. (f) Entire Agreement. This Agreement constitutes and
embodies the entire understanding and agreement of the parties and supersedes
and replaces all prior understandings, agreements and negotiations between the
parties. (g) Counterparts. This agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which taken together shall
constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have entered into this agreement
effective as of the day and year first above written.
CONSULTANT: CLIENT: CNH HOLDINGS COMPANY
/s/ Xxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxxx Xxxxxxx Xxxx X. Xxxxxx, President
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