EXHIBIT 10.2
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CONSULTING AGREEMENT
THIS AGREEMENT, made as of the 22nd day of January, 2003, by and
between C. Xxxx XxXxxx residing at 00000 X.X. Xxxxxx Xxxx, Xxxxxx, XX 00000 and
Xxxxxx X. Xxxxx, residing at 00 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000
(hereinafter referred to as "Consultants") and XXXxxx.xxx, Inc., a Delaware
corporation located at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000
(hereinafter referred to as the "Company").
WHEREAS, the Company desires to obtain the benefit of the services of
Consultants as a consultant in connection with mergers, acquisitions, and
financing of businesses engaged in the sale, leasing and servicing of small,
medium or heavy construction equipment; and
WHEREAS, Consultants desire to render such services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and the acts herein described, it is agreed between the parties
as follows:
1. Term of Agreement. The Company hereby engages and retains
Consultants and Consultants hereby agree to render consulting services to the
Company for a period of three years commencing on February 1, 2003 and ending on
January 31, 2006.
2. Services to be Rendered. (a) The services to be rendered by
Consultants shall consist of business advice concerning opinions desired by the
Company from Consultants on matters in connection with the operation of the
business of the Company. Consultants shall have the sole discretion as to the
form, manner and place in which said advice shall be given. At the Company's
request, Consultants shall also seek out, meet with and negotiate with companies
and other entities to be considered for mergers with, or acquisition by, the
Company. Consultants, when reasonably requested by the Company, shall devote
only such time as Consultants may deem necessary to the matters of the Company.
(b) The Consultants shall prepare a written report surveying
acquisition opportunities in the business line described above and the strategy
for financing said activities. Such report shall be acceptable to the Company's
Board of Directors.
(c) The Consultants shall not during the term of this Agreement,
without the prior written approval of the Company, render such services to any
person, directly or indirectly, in the Unites States, except that such services
may be rendered to Western Power & Equipment Corp. and its affiliates.
3. Consideration. As consideration for the Consultants' services
hereunder, Consultants shall receive 470,000 shares of the Company's Series B
Preferred Stock, having the rights and preferences described in the Certificate
of Designation set forth hereto as Exhibit A. The shares will be issued to the
Consultants as set forth in Exhibit B. Each share of Series B Preferred Stock
shall have a stated value of $2.50 per share and, subject to certain conditions
set forth in the Certificate of Designation, be convertible into 1,000 shares of
the Company's common stock.
4. No Effect on Other Agreements for Services. The compensation set
forth herein shall be in addition to any compensation to the Consultants for
operating or supervising the business which the Company may acquire.
5. Entire Agreement. This instrument contains the entire agreement of
the parties. There are no representations or warranties other than as contained
herein. The Company shall indemnify and hold harmless the Consultant from and
against any losses, claims, damages or liabilities related to or arising out of,
any services rendered to the Company pursuant to the terms of this Agreement. No
waiver or modification hereof shall be valid unless executed in writing with the
same formalities as this Agreement. Waiver of the breach of any term or
condition of this Agreement shall not be deemed a waiver of any other or
subsequent breach, whether of like or of a different nature.
6. New York Law. This Agreement shall be construed according to the
laws of the State of New York (exclusive of the conflicts of law provisions
thereof) and shall be binding upon the parties hereto, their successors and
assigns.
7. Waiver of Jury Trial. The Company and the Consultant each hereby
waive trial by jury in any judicial proceeding brought by either of them with
respect to this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXX.XXX, INC.
By: Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chairman
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C. Xxxx XxXxxx
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Xxxxxx X. Xxxxx
2
EXHIBIT B
CONSULTANTS
Name No. of Shares
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Xxxxxx X. Xxxxx 235,000
C. Xxxx XxXxxx 235,000
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Total 470,000
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