Exhibit 10.2
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CONSULTING AGREEMENT
AGREEMENT made effective 21st day of June, 2002, by and between Crescent
Communications, Inc. hereinafter referred to as "the Client" and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
hereinafter referred to as "the Consultant".
WHEREAS, the Client is engaged in the business of providing commercial internet
service to small to medium businesses, and the Client desires to improve and
grow its operations, and
WHEREAS, the Client desires to secure the efforts of consultants capable of
providing and developing strategic plans and finding viable candidates for
acquisitions and mergers, increasing and developing sales and other related
services, and
WHEREAS, Consultant desires to provide services to the Client; and
WHEREAS, Client desires to retain the services of Consultant as provided herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the parties hereto agree as follows:
1. Appointment
Client hereby appoints and engages Consultant as its advisor and hereby retains
and employs Consultant on the terms and conditions of this Consulting Agreement.
Consultant accepts such appointment and agrees to perform the services upon the
terms and conditions of said Consulting Agreement.
2. Engagement
Client engages Consultant to provide the services described in paragraph 3
herein. Consultant accepts said engagement and Client as a Client, and agrees
to provide services to Client as further described in paragraph 3 below and
subject to the provisions of this Consulting Agreement.
3. Authority and Description of Services
During the term of this Consulting Agreement Consultant shall furnish some or
all of the various services from time to time as requested by the Client and
agreed upon by the parties as described herein as follows:
1. Consultant shall assist Client in preparing a business plan.
2. Consultant shall provide guidance in the development of a strategic
business and marketing plan for the purpose of guiding the growth of the Clients
business.
3. Consultant shall provide guidance to the Client in regard to the selection
of Merger and Acquisition candidates.
4. Consultant shall not be required to perform any investment banking related
activities on behalf of CLIENT as a condition of this Agreement. For the
purposes of this Agreement investment banking activities shall be defined as
being any of the following:
A. The location, negotiation and/or securing of public or private debt
for Client.
B. The location, negotiation and/or securing of any public or private
equity for Client.
C. The production of any documentation that is to be utilized for the
purposes and activities as relating to the activities as outlined in subheadings
(1) and (2) above.
D. Any other activities as may normally be associated with the practice
of investment banking.
4. Term of Agreement
This Consulting Agreement shall become effective upon execution hereof and shall
continue thereafter and remain in effect for a period of one (1) year. It is
expressly acknowledged and agreed by and between the parties hereto that
Consultant shall not be obligated to provide any services and/or perform any
work related to this Consulting Agreement until such time any agreed and/or
specified retainer (deposit, initial fee, down payment) in U.S. funds, and/or
other specified and/or agreed valuable consideration, has been received by
Consultant. Further, Consultant may terminate services should Client fail to
make all payments upon receipt of invoices. Time is of the essence with respect
to payment by Client of Consultant invoices.
5. Where Services Shall be Performed
Consultant's services shall be performed at the main office location of
Consultant or other such designated location(s) as Consultant and Client agree
are the most advantageous for the work to be performed.
6. Limitations on Services
The parties hereto recognize that certain responsibilities and obligations are
imposed by Federal and State securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
in-house "due diligence" or "compliance" departments of brokerage houses, etc.
Accordingly, Consultant agrees as follows:
a. Consultant shall NOT release any financial or other information or
data about Client without the consent and approval of Client.
b. Consultant shall NOT conduct any meetings with financial analysts
without informing Client in advance of any proposed meeting, the
format or agenda of such meeting and Client may elect to have a
representative of Client attend such meeting.
c. Consultant shall NOT release any information or data about Client to
any selected or limited person(s), entity, or group if Consultant is
aware that such information or data has not been generally released or
promulgated and Client requests in writing that said information or
data is not to be so released or promulgated.
7. Duties of Client
a. Client shall supply Consultant, on a regular and timely basis with all
approved data and information about Client, its management, its products, and
its operations and Client shall be responsible for advising Consultant of any
facts which would affect the accuracy of any prior data and information
previously supplied to Consultant so that Consultant may take corrective action.
b. Client shall promptly supply Consultant with full and complete copies
of all filings with all Federal and State securities agencies; with full and
complete copies of all shareholder reports and communications whether or not
prepared with Consultant's assistance; with all data and information supplied to
any analyst, broker-dealer, market maker, or other member of the financial
community; and with all product/service brochures, sales materials, etc.
c. Consultant reports are not intended to be used in the sale or offering
of securities. In that Consultant relies on information provided by Client for
a substantial part of its preparations and report, Client represents that said
information is neither false nor misleading, nor omits to state a material fact
and has been reviewed and approved by counsel to Client.
8. Representation, Undertakings and Indemnification
a. Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information and data which it
supplies to Consultant and Client acknowledges its awareness that Consultant
will rely on such continuing representation in disseminating such information
and otherwise performing its functions hereunder.
b. Consultant, in the absence of notice in writing from Client, will rely
on the continuing accuracy of material, information and data supplied by Client.
c. Client shall cooperate fully and timely with Consultant to enable
Consultant to perform its duties and obligations under this Consulting
Agreement.
d. The execution and performance of this Consulting Agreement by Client
has been duly authorized by the Board of Directors of Client in accordance with
applicable law, and, to the extent required, by the requisite number of
shareholders of Client.
e. The performance by Client of this Consulting Agreement will not
violate any applicable court decree or order, law or regulation, nor will it
violate any provision of the organizational documents and/or bylaws of Client or
any contractual obligation by which Client may be bound.
f. Client shall promptly deliver to Consultant a complete due diligence
package to include latest 10K, latest 10Q, last six (6) months of press releases
and all other relevant materials, including but not limited to corporate
reports, brochures, etc.
g. Client shall act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of the materials
and shall inform Consultant of any inaccuracies contained therein within a
reasonable time prior to the projected or known publication date.
9. Compensation
a. Compensation payable to Consultant for all general investor relations
services and other services hereunder, including but not limited to acquisition
and merger services, shall be paid by Client to Consultant by the means and in
the manner or manners as described in "Addendum A", a copy of which is attached
hereto and incorporated herein by this reference.
b. All moneys payable hereunder shall be in U.S. funds and drawn on U.S.
banks.
c. For all special services, not within the scope of this Consulting
Agreement, Client shall pay to Consultant such fee(s) as, and when, the parties
shall determine in advance of performance of said special services, provided
Client has agreed to said special services.
10. Consultant as an Independent Contractor
Consultant shall provide said services as an independent contractor, and not as
an employee or of any Client affiliated with Client. Consultant has no
authority to bind Client or any affiliate of Client to any legal action,
contract, agreement, or purchase, and such action cannot be construed to be made
in good faith or with the acceptance of Client; thereby becoming the sole
responsibility of Consultant. Consultant is not entitled to any medical
coverage, life insurance, savings plans, health insurance, or any and all other
benefits afforded Client employees. Consultant shall be solely responsible for
any Federal, State or local taxes, and should Client for any reason by required
to pay taxes at a later date, Consultant shall reassure such payment is made by
Consultant and not by Client. Consultant shall be responsible for all workers
compensations payments and herein holds Client harmless for any and all such
payments and responsibilities related hereto.
11. Amendments
This Consulting Agreement may be modified or amended, provided such
modifications or amendments are mutually agreed upon by and between the parties
hereto and that said modifications or amendments are made in writing and signed
by both parties.
12. Severability
If any provision of this Consulting Agreement shall be held to be contrary to
law, invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Consulting Agreement is contrary to law, invalid or unenforceable, and that
by limiting such provision it would become
valid and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
13. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior to the
expiration of the term provided in paragraph 4 above except as follows:
a. Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary;
b. Upon the other party taking the benefit of any insolvency law;
c. Upon the other party having or applying for a receiver appointed for
either party; or
d. Non performance by either party
14. Non-waiver
The failure of either party, at any time, to require any such performance by any
other party shall not be construed as a waiver of such right to require such
performance, and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require full performance hereunder.
15. Early Termination
In the event Client fails or refuses to cooperate with Consultant, or Consultant
fails to perform its duties hereunder, either party shall have the right to
terminate any further performance under this Consulting Agreement.
16. Notices
All notices hereunder shall be in writing and addressed to the party at the
address herein set forth, or at such other address which notice pursuant to this
section may be given, and shall be given by either personal delivery, certified
mail, express mail or other national or three (3) business days after being
mailed or delivered to such courier service. Any notices to be given hereunder
shall be effective if executed by and sent by the attorneys for the parties
giving such notice, and in connection therewith the parties and their respective
counsel agree that in giving such notice such counsel may communicate directly
in writing with such parties to the extent necessary to give such notice. Any
notice required or permitted by this Consulting Agreement to be given shall be
given to the respective parties at the address first written above, on page one
(1) of this Consulting Agreement.
17. Exclusion with Respect to Partnership
The parties agree that, in no way, shall this Consulting Agreement be construed
as being an act of partnership between the parties hereto and that no party
hereto shall have, as a result of the execution of this Consulting Agreement,
any liability for the commitments of any other party of any type, kind or sort.
18. Inurement
This Consulting Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, personal
representatives, successors, and assigns.
19. Entire Agreement
This Consulting Agreement supersedes and replaces any prior agreement between
the parties. This Consulting Agreement contains the entire agreement of the
parties and may be modified or amended only by agreement in writing, signed by
the party against whom enforcement of any waiver, change, amendment,
modification, extension or discharge is sought. It is declared by both parties
that there are no oral or other agreements or understanding between them
affecting this Consulting Agreement, or relating to the business of Consultant.
This Consulting Agreement supersedes all previous agreements between Consultant
and Client. This contract is performable in ▇▇▇▇▇▇ County, Texas. Any
litigation between the parties must be brought in State District Court in ▇▇▇▇▇▇
County, Texas.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Consulting Agreement.
Client: Crescent Communications, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO ▇▇▇▇ ▇▇▇▇▇▇▇, Individually
SSN:
ADDENDUM A
Compensation:
300,000 shares of CCES common stock to be registered under S-8
