exv10w2






Exhibit 10.2




CONSULTING AGREEMENT




     This Consulting Agreement (“Agreement”) is entered into as of this 16th day of August, 2010,
to be effective as of September 1, 2010, between Penson Worldwide, Inc. (“Company”) and Holland
Consulting, LLC, a Texas limited liability company (“Consultant”).



RECITALS:




     Whereas, the Company desires to engage Consultant in accordance with the terms of this
Agreement and the Consultant desires to be engaged to perform consulting services.



AGREEMENT:




     The parties hereto agree as follows:



     1. Term. The term of this Agreement (the “Term”) shall begin September 1, 2010 and
end on December 31, 2012, unless (a) terminated prior to such date pursuant to the terms hereof or
(b) extended by mutual written agreement between Company and Consultant.



     2. Services. During the Term, the Consultant agrees to perform the following services
for Company all of which shall be performed solely by Daniel P. Son to the reasonable satisfaction
of the Company and/or its affiliates (collectively “Penson Group”) in compliance with applicable
law and regulations applicable to Consultant and/or members of the Penson Group (provided that
Daniel P. Son shall not provide services for Consultant to the Company that exceed 20% of the time
he previously worked for the Company as an employee on the basis of a 40 hour standard week):



          (a) Attend meetings at the offices of the Penson Group at such times mutually agreed to by
Consultant and Company; provided that Consultant is given reasonable prior notice of the time and
place of each such meeting; and



          (b) Be available to the senior management of the Penson Group for telephone consultation, as
needed, at reasonable times during normal work days.




     3. Consideration and Compensation.



          (a) Periodic Payments. For Consultant’s services hereunder, Consultant shall receive
$14,584 per month from the Company paid and payable during the Term on a semi-monthly basis.
Consultant will be paid as an independent contractor and will receive a Form 1099 (or other form
required by the Internal Revenue Service) relating to the compensation paid to Consultant pursuant
hereto. No amounts will be withheld from payments made to Consultant for employment or similar
taxes unless required in accordance with applicable laws and regulations as reasonably determined
by the Company.



          (b) Reimbursement of Expenses. The Company will reimburse Consultant from time to
time for all reasonable and necessary out-of-pocket business expenses incurred in rendering
services under and pursuant to this Agreement. Reimbursement will be consistent with the then
existing policies and procedures of Company.



 









 





          (c) Support. During the Term, Consultant will be entitled to receive, at the
Company’s expense, a computer, computer support, access to email and quotation systems, provision
of office space and secretarial support reasonably satisfactory to Consultant and the Company and
as may be required for performance of the terms of this Agreement. Company shall also provide to
Consultant at Consultant’s expense the identical parking space provided for Daniel P. Son while he
was employed with Company.



     4. Termination. Consultant, in its discretion, may terminate this Agreement by giving
the Company written notice at least sixty (60) days in advance of such termination. The Company may
terminate this Agreement by giving Consultant written notice at least sixty (60) days in advance of
such termination in the event the Company is not reasonably satisfied with Consultant’s services.
Notwithstanding the foregoing to the contrary, each party shall also give the other party written
notice at least thirty (30) days in advance if termination occurs as a result of a breach of the
letter agreement dated the date hereof between the Company and Daniel P. Son (“Letter Agreement”)
by the other party.



     5. Indemnification/Other. The Company shall indemnify Consultant to the same extent
that Daniel P. Son is indemnified in his capacity as an officer and director under that certain
Indemnification Agreement (herein so called) entered into as of August 1, 2005 between Company and
Daniel P. Son, as Indemnitee subject to the conditions and limitations set forth therein. The
parties acknowledge that the Indemnification Agreement remains in full force and effect, and is
incorporated herein by this reference; each party also attorns to such agreement by executing this
Agreement with references therein to Daniel P. Son being broadly construed as applicable to
Consultant. Consultant agrees that Section 4(c) in the Letter Agreement applicable to Daniel P. Son
shall be deemed to be binding on Consultant as though set forth herein.



     6. Confidentiality.



          (a) The parties acknowledge that, in order to permit the Consultant to successfully
perform and/or continue to perform the services for which it was contracted by the Company, it
is necessary for the Company to provide the Consultant with access to certain valuable
proprietary information and knowledge of certain modes of business operation (“Confidential
Information”) which are essential to the profitable operation of the Penson Group, and which
give the Penson Group a competitive advantage over other firms pursuing related business
activities. In the context of this Agreement, the term “Confidential Information” shall be
deemed to include



               (i) the identity of the Penson Group’s clients, investors, joint venturers, or customers;



               (ii) computer software or data of any sort developed (in the case of software) or compiled
(in the case of data) by the Penson Group;



               (iii) the fact that the Penson Group uses, has used, or has evaluated for potential use a
particular computer program or system, or any particular database or source of data, supplied
by a party other than the Penson Group;



               (iv) trading and order execution strategies developed, investigated, acquired, evaluated,
modified, tested, or employed by the Penson Group, or any information



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related to, or that might
reasonably be expected to lead to the development of such strategies, whether or not such
information is embodied in a computer program;



               (v) any information that would typically be included in the Penson Group’s financial
statements, including, but not limited to the amount of the Penson Group’s assets, liabilities,
net worth, revenues, expenses, or net income;



               (vi) non-public information related to financial or other products developed, acquired,
researched, or modified by the Penson Group; and



               (vii) any other information gained in the course of the Consultant’s relationship with the
Company that could reasonably be expected to prove deleterious to the Penson Group if disclosed
to third parties, including without limitation any information that could reasonably be
expected to aid a competitor or potential competitor of the Penson Group (a “Competitor”) in
making inferences regarding the nature of the Penson Group’s business activities, where such
inferences could reasonably be expected to allow such a Competitor to compete more effectively
with the Penson Group.



          (b) (i) The Consultant acknowledges that it has acquired and/or will acquire Confidential
Information in the course of or incident to its relationship with the Company, and that the
ability of the Penson Group to continue in business could be seriously jeopardized if such
Confidential Information were to be used by the Consultant or by other persons or firms to
compete with the Penson Group. Accordingly, the Consultant agrees that it shall not, directly
or indirectly, at any time, during the term of this Agreement or at any time thereafter, and
without regard to when or for what reason, if any, such relationship shall terminate, use or
cause to be used any such Confidential Information, whether acquired prior to or subsequent to
the
execution of this Agreement, in connection with any activity or business except the
business of the Penson Group, and shall not disclose such Confidential Information to any
individual, corporation, or other entity unless such disclosure has been specifically
authorized in writing by the Chief Executive Officer of the Company or except as may be
required by any applicable law or by order of a court of competent jurisdiction, a regulatory
or self-regulatory body, or a governmental body.



               (ii) The provisions of Section 6(b)(i) notwithstanding, the Consultant shall be free
to disclose or use any information which (A) is in or which enters the public domain prior to
the time of such disclosure or use except where such information enters the public domain as a
result of unauthorized actions of the Consultant, (B) was or becomes available to Consultant on
a non-confidential basis from a person not otherwise bound by an obligation of confidentiality
to the Company or its affiliates so long as there is no other prohibition on such person’s
transmission of information to Consultant, (C) is or was developed by Consultant without use of
Confidential Information, or (D) was known by Consultant without restrictions prior to
disclosure to Consultant by the Company or its affiliates.



               (iii) In the event that the Consultant is required to disclose Confidential Information
pursuant to judicial or administrative process or other requirements of law, the Consultant
will (A) notify the Company of its receipt of such process within 24 hours of such receipt, and
prior to any disclosure being made, (B) to the extent reasonably practicable, consult with the
Company on the advisability of taking steps to resist or narrow such request



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provided that the
ultimate decision shall be that of the Consultant, and (C) if disclosure is required or deemed
advisable, cooperate with the Company in any attempt that it may make in order to obtain an
order or other reliable assurance that confidential treatment will be accorded to designated
portions of such information. If no such order is obtained by the Company, disclosure of such
information by the Consultant shall not be deemed a violation of this Agreement. The
Consultant shall be entitled to reimbursement for its reasonable expenses, including the fees
and expenses of its counsel, in connection with action taken pursuant to this paragraph.



               (iv) The provisions of Section 6(b)(ii) notwithstanding, the Consultant shall be able to
use and disclose Confidential Information as required for the performance of its assignments in
connection with this Agreement.



          (c) Upon the termination of the Consultant’s retention by the Company for any reason, the
Consultant promises and agrees to return immediately to the Company any and all Confidential
Information and all other materials or documents, including without limitation mailing lists,
rolodexes, computer print-outs, and computer disks and tapes, belonging to the Company which
contain information pertaining to the Penson Group’s business, methods, clients, potential
clients, or employees, unless the Company consents in writing to the Consultant’s retention
thereof.



          (d) All right, title and interest of every kind and nature whatsoever, whether now known
or unknown, in and to any intellectual property (“Intellectual
Property”), including any inventions, trade secrets, patents, trade-marks, service marks,
trade dress, trade names, copyrights, films, video media, scripts, tests, software,
applications, creations and properties invested, created, written, developed, taped, filmed,
furnished, produced or disclosed by or to the Consultant in the course of rendering services to
the Company under this Agreement shall, as between the parties hereto, be and remain the sole
and exclusive property of the Company for any and all purposes and uses whatsoever, and the
Consultant and the Consultant’s successors and assigns shall have no right, title, or interest
of any kind or nature therein or thereto, or in or to any results and proceeds therefrom. Any
works of authorship shall be “works made for hire” to the maximum extent permitted by law.



          (e) Nothing contained in this Agreement shall be deemed to weaken or waive any rights
related to the protection of trade secrets that the Company may have under common law or any
applicable statutes. The provisions of this Section 6 shall survive termination of this
Agreement.



     7. Entirety of Agreement. This Agreement supersedes all other agreements, either oral
or in writing, between the parties relating to the engagement of the Consultant by the Company. It
contains all of the covenants and agreements between the parties with respect to that engagement.
Each party to this Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, that are not embodied in this Agreement, and that no other agreement, statement, or promise
will be valid or binding.



     8. Notices. All notices, requests, demands, claims, and other communications



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hereunder
will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be
deemed duly given if (and then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, or by expedited courier, next day delivery, and
addressed to the intended recipient as set forth below:



If to Company:




Penson Worldwide, Inc.

David Johnson, Chairman, Board of

 Directors Compensation Committee and
 Andrew
Koslow, General Counsel

1700 Pacific Avenue

Suite 1400

Dallas, Texas 75201




If to Consultant:




Holland Consulting, LLC

c/o Daniel P. Son

9507 Meadowbrook Drive

Dallas, Texas 75220



Any party may send any notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means (including personal
delivery, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any party may change the
address to which notices, requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.




     9. General.



          (a) Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas without giving effect to the conflict of laws
principles thereof.



          (b) Amendments; Waivers. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived, only by a written
instrument executed by the parties, or in the case of a waiver, by the party waiving compliance.
The failure of any party at any time or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to enforce the same. No waiver by any
party of the breach of any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other term or covenant
contained in this Agreement.



          (c) No Conflict with Other Agreements/Independent Contractor. Each party represents
and warrants to the other that neither its execution of this Agreement nor the full and



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complete
performance of its obligations hereunder will violate or conflict in any respect with any written
or oral agreement or understanding with any person. The relationship between the Company and the
Consultant hereunder is agreed to be solely that of independent contractors. Nothing contained
herein and no modification of responsibility or compensation made hereafter shall be construed so
as to constitute the parties as partners or joint venturers.



          (d) Successors and Assigns. This Agreement shall inure to the benefit of and shall be
binding upon Company (and its respective successors and assigns) and Consultant (and its respective
heirs and assigns. Neither this Agreement nor any right or interest hereunder shall be assignable
by the Consultant, its beneficiaries, or legal representatives without the Company’s prior written
consent.



          (e) Captions. The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.



          (f) Severability. The holding of any provision of the Agreement to be illegal,
invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision
of this Agreement which shall remain in full force and effect.



          (g) Attorneys’ Fees/Equitable Relief. If any action at law or in equity is brought to
enforce or interpret the provisions of this Agreement or any other agreement or instrument provided
for herein, the prevailing party in such action shall be entitled to recover reasonable attorneys’
fees. Each party acknowledges that any breach of this Agreement may cause the other party
irreparable harm for which there is no adequate remedy at law, and as a result of this, the
non-breaching party shall be entitled to the issuance by a court of competent jurisdiction of an
injunction, restraining order, or other equitable relief in favor of itself, without the necessity
of posting a bond, restraining the breaching party from committing or continuing to commit any such
violation. Any right to obtain an injunction, restraining order, or other equitable relief
hereunder shall not be deemed a waiver of any right to assert any other remedy a party may have at
law or in equity.



          (h) Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same instrument.



[EXECUTION ON FOLLOWING PAGE]






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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	PENSON WORLDWIDE, INC.

 	 
	 	By:  	/s/ David Johnson
 	 
	 	 	David Johnson, 	 
	 	 	Chair, Board of Directors Compensation
Committee 	 
	 
	 	HOLLAND CONSULTING, LLC:

 	 
	 	By:  	/s/ Daniel P. Son
 	 
	 	 	Daniel P. Son,  	 
	 	 	Managing Member 	 
	 




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