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Form of Amended and Restated
Consulting and Acquisition Management Agreement
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AMENDED AND RESTATED CONSULTING AND ACQUISITION
MANAGEMENT AGREEMENT
This Amended and Restated Consulting and Acquisition Management Agreement
as of the 6th day of August, 1997 by and between Workforce Systems, Corp., a
Florida corporation (the "Company") and Shulman & Associates, Inc., a Florida
corporation ("Shulman").
WHEREAS, on April 3, 1997 pursuant to that certain Consulting Acquisition
Management Agreement (the "April Agreement") the Company engaged the services of
Shulman (the "Services") to identify and evaluate merger or acquisition
candidates for the Company as well as to assist the Company in the
identification, evaluation and structure mergers, consolidations, acquisitions,
joint ventures and strategic alliances (hereinafter collectively referred to as
"Acquisitions").
WHEREAS, on May 29, 1997 the Company consummated the acquisition of
Federal Supply, Inc. and Federal Fabrication, Inc. (the "Federal Acquisition").
The Federal Acquisition was brought to the Company by Shulman and Shulman
rendered certain services to the Company in connection therewith pursuant to the
terms of the April Agreement.
WHEREAS, on July 30, 1997 Shulman was compensated for its services in
connection with the Federal Acquisition.
WHEREAS, based upon discussions between the parties subsequent to the
consummation of the Federal Acquisition, the parties have determined that the
written terms of the April Agreement does not properly reflect the oral
understandings of the parties reached prior to the execution of the April
Agreement.
WHEREAS, the parties hereto wish to clarify the written terms of the April
Agreement to properly reflect the oral understandings of the parties regarding
the terms of the engagement of Shulman and hereby to restate the April Agreement
in its entirety.
NOW THEREFORE, in consideration of the mutual promises contained herein and
intending to be legally binding hereby, the parties hereto agree as follows:
1. RECITALS. The foregoing recitals are true and correct.
2. CONSULTING SERVICES.
2.1 The Company hereby retains Shulman as a consultant to perform
the Services and to assist the Company in the closing of Acquisitions for the
account of Company upon such terms and conditions as are acceptable to Company
and Shulman hereby accepts such engagement. Notwithstanding anything to the
contrary contained herein, each Acquisition shall be subject to the approval of
the Company, which approval may be withheld or delayed for any reason in the
Company's sole and absolute discretion.
2.2 Shulman shall, in connection with each proposed Acquisition
assist the Company as requested in the consummation of the transaction. If any
Acquisition other than the Star Hosiery, Inc. acquisition is completed by the
Company or an affiliate during the term of this Agreement, Shulman shall be
entitled to the compensation set forth in Paragraph 4 hereof. Shulman, however,
agrees that it will participate as may be requested by the Company in the Star
Hosiery, Inc. acquisition.
3. TERM. This agreement shall be for a term ("Term") of five (5)
years from the date of the April Agreement hereof. However, the Agreement may be
terminated by either party on the annual anniversary date of this Agreement upon
thirty (30) days prior written notice.
4. COMPENSATION. The Company shall pay the following compensation
to Shulman in consideration of the Services to be rendered hereunder:
4.l. A monthly fee of one thousand dollars ($1,000.00) during
the term of this Agreement. Such fee shall include normal out of pocket expenses
incurred by Shulman. Any extraordinary expenses for which Shulman desires to be
reimbursed must be approved in writing in advance by the Company; and
4.2 A grant by the Company of options to purchase an
aggregate of 500,000 shares of the Company's common stock, such options to be
effective as of April 3, 1997 and exercisable until July 3, 1997 at an exercise
price of $1.00 per share. Of such amount, one-third of the options (the
"Retainer Options") shall be allocated as a retainer for the Services during the
Term of this Agreement and the remaining two-thirds (the "Transaction Options")
shall serve as a portion of the compensation due Shulman upon the consummation
Acquistions during the Term of this Agreement; and
4.3. Upon the consummation of an Acquisition by the Company
or a subsidiary thereof during the Term of this Agreement, a fee (the
"Transaction Fee") in an amount to-be-negotiated by the parties based upon the
scope of participation of Shulman in such Acquisition will be paid to Shulman;
PROVIDED, HOWEVER, that such Transaction Fee shall be not less than three
percent (3%) of the Aggregate Market Value (as hereinafter defined) of the
Acquisition. It is the understanding of the parties hereto that a portion of the
Transaction Options in an amount to be mutually agreed upon by the parties
hereto shall be allocated to a Transaction Fee due Shulman during the Term of
this Agreement and the balance of such Transaction Fee, if any, to be paid in
cash or registered shares of the Company's common stock or a combination thereof
upon the mutual agreement of the parties hereto.
4.4. For the purposes of this Agreement, Aggregate Market
Value shall mean (i) in the event that the Company, or substantially all of its
issued and outstanding stock is acquired, the number of fully diluted shares of
the Company's common stock so acquired times the fair market value per share of
the cash paid and/or the securities issued by the acquiring party, (ii) in the
event that the Company acquires another entity, or its stock, the fair market
value of the cash paid and/or the securities issued by the Company for such
other entity's common stock, and (iii) in the event of an Acquisition of the
Company's assets, or an Acquisition by the Company of assets of another entity,
the fair market value of the pre-tax consideration received or paid (as the case
may be) by the Company including assumption of indebtedness. For the purpose of
this Agreement, the fair market value of equity and debt securities will be
determined based upon (i) the closing sale price for such securities on the
registered national securities exchange providing the primary market in such
securities on the last trading day prior to the closing date of the Acquisition
or other transaction, or (ii) if such securities are not so traded, the good
faith estimate of the Board of Directors of the Company.
4.5 In the event this Agreement is terminated or expires
pursuant to the provisions of Paragraph 3 hereof, the provisions of subparagraph
4.3 shall be in effect for a period of one year from such termination date; and
with respect to any Acquisitions introduced by Shulman to the Company, for a
period of two (2) years from the termination date.
4.6 In the event Shulman shall have exercised all or any
portion of the options granted pursuant to Paragraph 4.2 hereof, upon the
expiration of the Term of this Agreement and upon the request of the Company,
Shulman shall return to the Company a number of shares of the Company's common
stock equal to the value of the Transaction Options which have not been
allocated by the Company to Acquistions based upon the provisions of
subparagraph 4.3 hereof.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
6. WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies which any party may otherwise have at law or in equity.
7. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida.
8. NO ASSIGNMENT. This Agreement is not assignable by the parties
without the prior consent of the other party.
9. SEVERABILITY. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or other provision
of this Agreement shall in no way affect the validity or enforcement of any
other provision or part thereof.
10. NO AGENCY. Shulman shall not, without the express written
consent of the Company, hold itself out as the agent of the Company, nor shall
Shulman have the authority to bind the Company or incur liabilities on behalf of
the Company, except as otherwise provided for herein, without the express
written consent of the Company.
11. NOTICES. All notices to be given hereunder shall be in
writing, with fax notices being an acceptable substitute for mail and/or and
delivery to:
If to Shulman: 7777 Glades Road
Suite 213
Boca Raton, Florida 33434
Attention: Manny Shulman, President
If to the Company: 1410 SW 8 Street
Pompano Beach, Florida 33069
Attention: Bob Hausman, President
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
WORKFORCE SYSTEMS CORP.
BY:
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Bob Hausman, President
SHULMAN & ASSOCIATES, INC.
BY:
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Manny Shulman, President