1
EXHIBIT 10.2
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of June 17, 1999 by and between TBM
HOLDINGS, INC., a Florida corporation (the "Company"), and COLT SERVICES,
INC., a Connecticut corporation (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Consultant has worked extensively and been instrumental in
developing and sponsoring the Company's recent business opportunity;
WHEREAS, the Company desires the Consultant to serve as a senior level
advisor to the Company in providing general board level advice and monitoring
the Company as a director; and
WHEREAS, the Company acknowledges that while the Consultant brings
desired and appropriate expertise in providing general board level advice, it
understands that the Consultant does not have the personnel and other
resources required to execute assignments and transactions and is being
compensated only as a director and board level advisor. Therefore, this
Agreement provides the terms under which the Consultant will provide advice
to the Company through general board level participation.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I. TERMS.
1.01. Any reference to the Company or the Consultant includes
a reference to their duly authorized agents except that, with respect to the
Company, the Consultant for this purpose is not deemed to be an agent.
ARTICLE 2. ENGAGEMENT OF THE CONSULTANT.
2.01. The Company hereby engages the Consultant, and the
Consultant hereby agrees, for the period beginning on the date hereof and
ending upon the termination of this Agreement, to provide advice to the
Company regarding the implementation of the Company's Business Plan. The
Consultant will attend board meetings and be available for consultation and
discussion with and advice to the Company's senior management. The
Consultant will provide advice regarding strategy and achievement of
objectives, senior level staffing, financing, financial structure, public
company issues, and other such matters as is mutually agreed to by the
parties hereto.
2
2.02. The Consultant and the Company shall observe and comply
with the provisions of this Agreement and all applicable laws and regulations
in effect from time to time in any and all jurisdictions where the Company
and the Consultant perform services until its appointment shall be terminated
as hereinafter provided.
2.03. The Consultant shall devote as much time as is necessary
and appropriate to the performance of its duties hereunder as it sees fit,
provided, however that the Consultant shall be entitled to the compensation
as provided in Article 3 whether or not called upon by the Company to render
any services hereunder. The functions and duties which the Consultant
undertakes hereunder shall not be exclusive, and the Consultant will perform
similar functions and duties for others and others may perform similar
functions and duties for the Company.
2.04. The Consultant shall keep or cause to be kept such
books, records and statements as may be necessary to give a complete record
of all transactions carried out by the Consultant on behalf of the Company
and support given to the Company in relation to all matters which are the
responsibility of the Consultant hereunder (including, without limitation,
all amounts expended on behalf of the Company) and shall permit the Company
to inspect such books, records and statements at all reasonable times and
shall provide them with such information and explanations as they may
reasonably require.
ARTICLE 3. CONSULTING FEES.
In consideration of the advice to be provided by the Consultant
hereunder during the term hereof, the Company shall pay the Consultant a
consulting fee of $12,500/month in advance on the first day of each month
beginning upon the Company's acquisition of its first operating company
("Initial Acquisition"). At the request of the Consultant and upon the
consent of the Company's Board of Directors, the consulting fee may be paid
in shares of the Company's common stock. The Company shall not withhold any
applicable state, federal or local employment or income taxes from such
payments; each of the Company and the Consultant acknowledging that the
Consultant is an independent contractor. From the date hereof, the
Consultant agrees that neither it nor any of its employees, agents,
shareholders or principals will hold themselves out as or characterize
themselves as an employee of the Company for any purpose.
2
3
ARTICLE 4. TERM.
4.01. This Agreement shall commence on the date first set
forth above and shall continue for so long as Colt, Colt Capital, LLC or its
affiliates, successors or assigns maintain an equity interest in the Company.
4.02. Notwithstanding the foregoing, the Company may terminate
this Agreement in the event of a sale of all or substantially all of the
assets of the Company or a sale of a majority of the voting stock of the
Company in a single transaction or a series of coordinated transactions, but
only if there are no longer any representatives of the Consultant on the
Company's Board of Directors or if representatives of TBM Consulting Group,
Inc. are no longer managing the business operations of the Company.
4.03. On termination of this Agreement, the powers, duties,
discretion and/or functions delegated by the Company to the Consultant
hereunder shall automatically be withdrawn and revoked.
ARTICLE 5. EXPENSES.
5.01. The Company shall reimburse the Consultant for all
pre-approved expenses it incurs in connection with the services performed.
5.02. The Company will provide the Consultant office space and
administrative services in Westport, Connecticut for which the Consultant
will pay rent for the actual office it uses (gross rent per square feet x
size of office) but not for any use of staff and common facilities.
ARTICLE 6. MISCELLANEOUS.
6.01. Neither of the parties hereto, either during the
continuance of this Agreement or after its termination, shall disclose to any
person (except with the written authority of the other party or unless
ordered to do so by a court of competent jurisdiction) any information
relating to the business, assets, finances or other affairs of a confidential
nature of the other party of which it may have become possessed during the
period of this Agreement and each party shall use its reasonable endeavors to
prevent any such disclosure as aforesaid.
6.02. The Consultant shall have no liability to the Company
for any advice or other services rendered hereunder except such as may arise
from the Consultant willful misconduct and gross negligence. The Company
shall indemnify and save harmless the Consultant, its officers, directors,
employees and stockholders from and against any and all
3
4
losses, liabilities, expenses (including, without limitation, reasonable fees
and disbursements of counsel), claims, liens, or other obligations whosoever
which the Consultant may suffer or incur by virtue of or as a result of its
consultancy with the Company.
6.03. This Agreement contains the entire understanding of the
parties hereto. This Agreement shall be binding upon the successors,
permitted assigns, administrators and legal representatives of the parties
hereto. This Agreement may not be assigned by the Company or the Consultant
without the consent of the other party hereto.
6.04. No oral modification or waiver of this Agreement, or
any part hereof, shall be valid or effective unless in writing and signed by
the party or parties sought to be charged therewith; and no waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other subsequent breach or condition, whether of like or different nature.
6.05. This Agreement may be executed simultaneously in two or
more counterparts, each of which is deemed an original, but all of which
together shall constitute one and the same instrument.
6.06. All notices, requests, demands and other communications
hereunder shall be in writing, shall be effective upon receipt and shall be
sent by certified mail, or by cable or telex confirmed by such mail, to the
following addresses:
If to the Consultant: Colt Services, Inc.
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: TBM Holdings, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
provided, however, that any of the parties hereto may, from time to time,
give to the other notice of some other address to which communications to it
shall be sent, in which event notice to such party shall be sent to such
address.
6.07. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut (without giving effect
to the principles of conflicts of laws thereof). In the event that any
action to enforce this Agreement or to seek remedies as a result of a breach
of this Agreement is brought in the State or Federal Courts of Connecticut,
to the extent allowable by applicable law, the prevailing party in any such
action shall be entitled to be reimbursed for all costs of enforcement and
litigation, including, without limitation, all attorneys' fees.
4
5
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
TBM HOLDINGS, INC.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
COLT SERVICES, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
5