Exhibit 10.6
Consulting Agreement with Wien Group.
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") dated as of May the 6th, 2002 between GSI
TECHNOLOGIES USA INC., located at 2001 Avenue XxXxxx College, Bureau 1310,
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0 ("Client") and WIEN GROUP INC., located at 000
Xxxxxxxxxx Xxxx. Xxxxxx Xxxx, XX 00000, a New York Corporation ("Consultant").
WITNESSETH
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WHEREAS, Client desires to receive advisory services from the Consultant in
connection with:
a) Assist in Client's activities as a public company including but
not limited to, corporate finance, merchant banking and mergers
and acquisitions;
b) Assisting in the on-going strategic planning, investment
policies, and financial packaging;
c) Provide representation of Client, and introduction to various
financial institutions, strategic partners, and potential
clients, and
d) Assisting in the negotiation of contracts with lenders,
suppliers, clients, and or strategic partners.
(collectively, the "Objectives").
WHEREAS, the Consultant has established their expertise in, among other things,
financial matters, assisting in the planning of corporate expansion, arranging
private financing and financial consulting services in general.
NOW, THEREFORE, in consideration of the mutual covenants and agreements, and
upon the terms and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties do hereby covenant and agree as follows:
SECTION 1. RETENTION OF CONSULTANT. Client engages the Consultant, and
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the Consultant accepts such engagement, subject to the terms and conditions
of this Agreement.
SECTION 2. SERVICES. At such times as are mutually convenient to the
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Consultant and Client during the Term (as defined below), the Consultant
shall provide consulting services to Client in connection with each of the
Objectives.
SECTION 3. COMPENSATION. For services rendered by the Consultant
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pursuant to this Agreement, Client shall pay the Consultant the following:
a) Upon execution of this Agreement, Client shall pay the Consultant
an Engagement Retainer of 200,000 freely tradable shares.
b) A cash free equal to 4% of the gross amount of any subordinate,
mezzanine and / or equity financing, obtained by Client arranged
by the Consultant payable to the Consultant directly from closing
proceeds; and
c) For any direct business Joint Ventures between Company and
Consultant, these shall be divided equally and for any services
rendered for M & A work these shall be assessed and agreed to on
a case-by-case basis.
SECTION 4. EXPENSES. Client shall pay the Consultant, on a monthly
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basis, all costs and out-of-pocket expenses incurred by the Consultant in
connection with its obligations and duties under this Agreement; provided,
however, that the Consultant shall obtain the prior written consent of
Client for any single item of expense in excess of $100. Client's consent
hereunder shall not be unreasonably withheld or delayed.
SECTION 5. NON-EXCLUSIVITY. The parties hereto acknowledge that
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Consultant have been retained by Client on a non-exclusive basis. If Client
or any principal thereof or any one affiliated with Client or its
principals arranges financing with any person or entity introduced by the
Consultant within five (5) years from such introduction, the Consultant
shall be entitled to the compensation referred to in Section 3 above.
SECTION 6. FULL COOPERATION. In connection with the activities of the
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Consultant on behalf of Client, Client will cooperate with the Consultant
and will furnish the Consultant and the Consultant's representatives
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with all information and data concerning Client as may be required in
connection with the Consultant's services hereunder. Client will also
provide Consultant and the Consultant's representatives with access to
Client's officers, directors, employees, agents, representatives,
independent accountants and legal counsel.
SECTION 7. REPRESENTATIONS. Client warrants and represents to the
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Consultant that this Agreement does not conflict with any other agreement
binding Client. Client warrants and represents to the Consultant, that
Client is fully authorized to offer and pay the Consultant's compensation
referred to in Section 3 above.
Client warrants and represents to the Consultant that to the best of
Client's knowledge all information provided or made available to the
Consultant (including, but not limited to, all information contained in our
Business Plan) will, at all times during the period of this engagement, be
complete and correct, will contain all material facts, and will not omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances under which such statements
are made.
Client further warrants and represents to the Consultant that any
projections provided by Client to the Consultant (whether before, on or
after the date hereof) have been prepared in good faith and are based upon
reasonable assumptions. Client acknowledges and agrees that in rendering
the Consultant's services hereunder, the Consultant will be using and
relying upon the information (and information available from public sources
and other sources deemed reliable by the Consultant) without independent
verification thereof or independent appraisal of any of Client's assets by
the Consultant and that the Consultant assume no responsibility for the
accuracy of the information or any other information regarding Client or
any financing. Any advice rendered by the Consultant pursuant hereto may
not be publicly disclosed or otherwise utilized without the Consultant's
prior written consent.
SECTION 8. NOT A BROKER-DEALER. Client understands that the Consultant
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is not a registered broker/dealer, that the Consultant's activities on
Client's behalf in connection with any financing, will be limited to the
identification of prospective broker-dealers, and that the Consultant has
not been engaged to effect any transaction with respect to Client's
securities for Client or others.
SECTION 9. INDEMNIFICATION. Client agrees to indemnify and hold
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harmless the Consultant, and any company controlling the Consultant or
controlled by the Consultant, and their respective officers, agents and
employees to the full extent lawful, from the against any losses, claims,
damages or liabilities (including reasonable counsel fees) related to or
arising out of this agreement or in connection with a financing and to
reimburse the party entitled to be indemnified hereunder for all reasonable
expenses (including reasonable counsel fees) as may incurred by such party
in connection with investigating, preparing or defending any such action or
claim; provided, however, that Client shall not indemnify and hold harmless
the Consultant or any such other person for any liability attributable to
the Consultant's or such other person's gross negligence or willful
misconduct or to the Consultant's breach of the Consultant's obligations
hereunder.
The Consultant agrees to indemnify and hold harmless Client and its
officers, agents and employees to the full extent lawful, from and against
any losses, claims, damages or liabilities (including full extent lawful,
from and against any losses, claims, damages or liabilities (including
reasonable counsel fees) relating to the Consultant's gross negligence,
willful misconduct or breach of its obligations hereunder and to reimburse
the party entitled to be indemnified hereunder for all reasonable expenses
(including reasonable counsel fees) as may be incurred by such party in
connection with investigating, preparing or defending any such action or
claim; provided, however, that the Consultant shall not indemnify and hold
harmless Client or any such other person for any liability attributable to
Client's or such other person's gross negligence or willful misconduct or
to Client's breach of its obligations hereunder; and provide, further, that
the Consultant's maximum liability hereunder shall not exceed the amount or
monetary value (determined on a liquidity basis) of any compensation
received by the Consultant pursuant to Section 3 hereof.
SECTION 10. WAIVER OF BREACH. The failure by Client to exercise any
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rights or powers hereunder shall not be construed as a waiver thereof. The
waiver by Client of a breach of any provision of this Agreement by the
Consultant shall not operate nor be construed as a waiver of any subsequent
breach by the Consultant.
SECTION 11. NOTICES. All notices, requests, demands and other
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communications which are required or permitted under this Agreement shall
be in writing and shall be deemed sufficiently given upon receipt if
personally delivered, faxed, sent by recognized national overnight courier
or mailed by certified mail, return receipt requested, to the address of
the parties set forth above. Such notices shall be deemed to be given (i)
when delivered personally, (ii) one day after being sent by overnight
courier carrier of (iii) three days after being mailed, respectively.
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SECTION 12. TERM. This Agreement shall be for a term commencing on the
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date hereof and ending in one (1) year with an automatic extension for an
additional one (1) year in the event that the Consultant is successful in
arranging any subordinate, mezzanine and / or equity financing.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and
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construed in accordance with, the internal laws of the State of New Jersey.
SECTION 14. ENTIRE AGREEMENT AMENDMENTS. This Agreement contains the
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entire agreement and understanding between the parties and supersedes and
preempts any prior understandings or agreements, whether written or oral.
The provisions of this Agreement may be amended or waived only with the
prior written consent of Client and the Consultant.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
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upon, inure to the benefit of, and shall be enforceable by the Consultant
and Client and their respective successors and assigns; provided, however,
that the rights and obligations of the Consultant under this Agreement
(with the exception of those rights in Section 3 hereof) shall not be
assignable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
WIEN GROUP INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice-President
GSI TECHNOLOGIES USA INC.
By: /s/ Xxxxxx xx Xxxxxxxx
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Name: Xxxxxx xx Xxxxxxxx
Title: Power of Attorney
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