Contract
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360
GLOBAL FINANCIAL, LLC
2
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This
Financial Consulting Agreement (“Agreement”) is entered into this 17th
day of
November, 2005 by and between 360 Global Financial, LLC 2 a Delaware limited
liability company whose offices are located at 0000 Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxx Xxxxx, XX (the “Financial Consultants”) and 360 Global Wines, Inc (OTC
BB TGWC), a Nevada corporation whose offices are located at Xxx Xxxxxxxx Xxxxx
Xxxx, Xxxx, XX 00000 (the “Client”)
RECITALS
| A. |
The
Financial Consultants are in the business of providing management
consulting services, business advisory services, product development
services, and product marketing and sales services as well as merger
and
acquisitions.
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| B. |
The
Client desires to retain the Financial Consultants to render to the
Client
such services as may be agreed to by the parties from time to time,
and
the Financial Consultants desire to render such services to the Client
as
set forth hereunder.
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AGREEMENT
Therefore,
in consideration of the mutual promises and covenants set forth in this
Agreement, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
| 1. |
Financial
Consulting Services.
The
Client hereby retains the Financial Consultants as an independent
contractor, and the Financial Consultants hereby accept and agree
to such
retention. It is acknowledged and agreed by the Client that the Financial
Consultants carry neither professional licenses nor memberships in
any
self-regulatory organizations. It is further acknowledged and agreed
by
the Client that the Financial Consultants are not rendering legal
advice
or performing accounting services and are not acting and shall not
act as
an investment advisors or broker/dealers within the meaning of any
applicable state or federal securities laws. No portion of the services
rendered pursuant to this Agreement shall be provided in connection
with
the offer or sale of securities in a capital-raising transaction.
The
services of the Financial Consultants shall not be exclusive, nor
shall
the Financial Consultants be required to render any specific number
of
hours or assign specific personnel to the Client or its
projects.
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| 2. |
Time,
Place and Manner of Performance. The Financial
Consultants shall be available to the officers and directors of the
Client
at such reasonable and convenient times and places as may be mutually
agreed upon. Except as otherwise provided in this Agreement, the
time,
place and manner of performance of the services hereunder, including
the
amount of time to be allocated by the Financial Consultants to any
specific service, shall be determined in the sole discretion of the
Financial Consultants.
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| 3. |
Independent
Contractor; Performance by Financial Consultants; Compliance with
Laws.
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| (a) |
The
Financial Consultants agree to perform their consulting duties hereto
as
independent contractors. Nothing contained herein shall be considered
to
create an employer-employee relationship between the parties in this
Agreement. The Client shall not make social security, workers’
compensation or unemployment insurance payments on behalf of the
Financial
Consultants.
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| (b) |
The
parties hereto acknowledge and agree that the Financial Consultants
cannot
guarantee the results or effectiveness of any of the services rendered
or
to be rendered by the Financial Consultants. Rather, Financial Consultants
shall conduct their operations and provide services in a professional
manner and in accordance with good industry practice. The Financial
Consultants will use all reasonable business efforts in providing
services
to the Client.
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| (c) |
The
Financial Consultants will comply with all requirements that any
applicable federal or state law (including without limitation the
Securities Act of 1933, as amended (the “Securities Act”), and the
Securities Exchange Act of 1934, as amended) may impose on the Financial
Consultants with respect to their performance of services under this
Agreement.
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| 4. |
Term
of Agreement. The term of this Agreement shall be thirty
six (36) months, subject to extension or prior termination as hereinafter
provided.
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| 5. |
Compensation.
In consideration of the services to be rendered by the Financial
Consultants pursuant to this Agreement, upon execution of this Agreement
and the completion of a contemplated transaction with First Montauk
Financial, Inc. (FMFK.OB), the Client shall deliver compensation
to the
Financial Consultants in the form of 1.2 million shares (on a post
reverse
stock split basis) of its common stock as follows:
Upon
completion of the acquisition of BMAC, Corp., LLC, one third of the
total
compensation referenced herein above. Upon delivery of fifty one
percent
(51%) of the total outstanding shares of First Montauk Financial
Corporation (symbol FMFK), an additional one third of said compensation.
Upon delivery of board control and/or management control of First
Montauk
Financial Corporation, the remaining one third of said
compensation.
Further
compensation shall include a percentage of profits over a to be negotiated
profit threshold of the First Montauk Financial entity. Additionally,
for
any mergers or acquisitions Financial Consultants deliver, Company
agrees
to pay a fee equivalent to 10% of the value of said merger or acquisition
in the form of 50% cash and 50% warrants with full piggyback registration
rights.
All
Shares of Client Stock so delivered pursuant to this Agreement, shall
contain the normal restrictive covenants common to such
transactions.
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| 6. |
Termination.
Either the Financial Consultants or the Client may terminate
this
Agreement at the end of any month after the
term of this Agreement on thirty (30) days prior written notice,
unless
extended by mutual consent. This
Agreement shall automatically terminate upon the dissolution, bankruptcy
or insolvency of the Client or
the Financial Consultants. The Financial Consultants and the Client
shall
have the right and the discretion
to terminate this Agreement should the other party, in performing
its
duties hereunder, violate any
law, ordinance, permit or regulation of any government entity or
self
regulatory organization, except for
violations that either singularly or in the aggregate do not have
or will
not have a materially adverse effect
on the party desiring termination. In the event of any termination
hereunder, all consideration paid to the
Financial Consultants through date of termination shall be fully
earned
and non-refundable, and the parties
shall have no further duties or responsibilities to each other, except
that the Client shall be responsible
to make any and all payments, if any, due to the Financial Consultants
through the date of termination,
and the parties shall continue to be bound by the confidentiality
provisions contained in Section
8 of this Agreement. Notwithstanding any other provision of this
Agreement, in the event of any breach
by the Financial Consultants of the provisions of Section 3(c),
then: (A) the
Client shall have the right
to terminate this Agreement immediately, and after any such termination,
shall have no further obligation
to the Financial Consultants hereunder; and (B) the
Client shall have the right to require the Financial
Consultants to surrender all shares of Client Stock issued to the
Financial Consultants pursuant to this
Agreement.
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| 7. |
Work
Product. It is agreed that all information and
materials produced for the Client shall be the property of the Client,
free and clear of all claims thereto by the Financial Consultants,
and the
Financial Consultants have no claim of ownership rights
thereto.
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| 8. |
Confidentiality.
The Client and the Financial Consultants each agree to provide
reasonable security measures to keep information belonging to the
other
party confidential, where release of such information could be detrimental
to such party’s business interests (“Confidential Information”). Each
party agrees that Confidential Information shall be subject to this
Agreement if provided to the other party and marked “Confidential” in a
conspicuous manner. Financial Consultants and Client shall each require
their employees, agents, affiliates, sub-contractors, other licensees,
and
others who have access to Confidential Information through Financial
Consultants or Client, as the case may be, to enter into appropriate
non-disclosure agreements, requiring the level and degree of
confidentiality contemplated by this Agreement. Financial Consultants
and
Client each agree that they will not, either during the term or this
Agreement, or any time thereafter, disclose, use or make known for
their
own or another’s benefit, any confidential information acquired or used by
them hereunder. The term “Confidential Information” excludes information
that: (a) is made public by Financial Consultants or Client in violation
of this Agreement, (b) becomes generally available to the public,
other
than as a result of disclosure by Financial Consultants or Client
or
another party in violation of any obligation of confidentiality or
(c)
Client or Financial Consultants obtains from sources other than Client
or
Financial Consultants.
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| 9. |
Conflict
of Interest. The Financial Consultants shall be free
to perform services for other entities or persons. The Financial
Consultants will notify the Client of its performance of consulting
services for any other entity or person that the Financial Consultants
reasonably believe could materially conflict with its obligations
to the
Client under this Agreement.
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| 10. |
Disclaimer
of Responsibility for Acts of the Client; Limitations on
Liability.
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| (a) |
In
no event shall the Financial Consultants be authorized or required
by this
Agreement to represent or make management decisions for the Client.
The
Financial Consultants shall, under no circumstances, be made liable
for
any expense incurred or loss suffered by the Client as a consequence
of
such decisions by the Client or any affiliates or subsidiaries of
the
Client as a result of services performed by the Financial Consultants
hereunder.
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| (b) |
FINANCIAL
CONSULTANTS DISCLAIM ANY AND ALL WARRANTIES RESPECTING THE SERVICES,
INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY
AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FINANCIAL CONSULTANTS
BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR OTHERWISE RELATING TO THE SERVICES TO BE PROVIDED UNDER
THIS
AGREEMENT, HOWEVER CAUSED, EVEN IF FINANCIAL CONSULTANTS HAVE BEEN
ADVISED
OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL
FINANCIAL CONSULTANTS LIABILITY FOR DAMAGES UNDER OR RELATING TO
THIS
AGREEMENT, REGARDLESS OF HOW ARISING, EXCEED THE AMOUNT OF CASH
COMPENSATION PAID TO FINANCIAL CONSULTANTS
HEREUNDER.
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| 11. |
Indemnification.
Each party agrees to indemnify and hold harmless the other
party
as well as each of its officers, directors, employees, agents and
each
person, if any, who controls that party, against any and all liability,
loss, costs, expenses or damages, including, but not limited to,
any and
all expenses reasonably incurred in investigating, preparing or defending
against any litigation or arbitration, commenced or threatened, directly
resulting by reason of any act, neglect; default or omission, or
any
untrue or allegedly untrue statement of a material fact, or any
misrepresentation of any material fact, or any breach of any material
warranty or covenant, by that party or any of its agents, employees
or
other representatives, arising out of, or in relation to, this Agreement.
Notwithstanding the foregoing, in no event shall the liability of
Financial Consultants exceed the amount of cash compensation actually
received by Financial Consultants pursuant to this
Agreement.
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| 12. |
Notices.
Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent
by fax
registered or certified mail, or by Federal Express or other nationally
recognized overnight couriers to the principal office of each party
and
addressed to its principal executive officer at the address set forth
on
the signature page to this Agreement. Faxes should be marked for
the
attention of the principal executive officer and set to the fax number
set
forth on the signature page to this
Agreement.
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| 13. |
Waiver
of Breach. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate
to be
construed as a waiver of any subsequent breach by such
party.
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| 14. |
Assignment.
Neither party may assign this Agreement without the written
consent of the other party.
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| 15. |
Applicable
Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant
to the
laws of the State of Delaware and that in any action, special proceeding
or other proceeding that may be brought arising out of, in connection
with, or by reason of this Agreement, the laws of the State of Delaware,
without regard to state or federal courts located in the County of
Xxxxxxxxx, Xxxxxxxx 00000 and consent to the jurisdiction and venue
of
such courts, and further waive any objection that such courts are
an
inconvenient forum.
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| 16. |
Severability.
All agreements and covenants contained herein are severable,
and
in the event any of them shall be held to be invalid by any competent
court, this Agreement shall be interpreted as if such invalid agreements
or covenants were not contained
herein.
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| 17. |
Entire
Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supercedes
and
replaces all prior understandings, agreements and negotiations between
the
parties.
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| 18. |
Waiver
and Modification. Any waiver, alternation, or modification
of any of the provisions of this Agreement shall be valid only if
made in
writing and signed by the parties
hereto.
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| 19. |
Counterparts
and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed
an original but all of which taken together, shall constitute one
and the
same instrument. Execution and delivery of this Agreement by exchange
of
facsimile copies bearing the facsimile signature of a party hereto
shall
constitute a valid and binding execution and delivery of this Agreement
by
such party.
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SIGNATURES
By
signing below, the parties agree to the terms of this Agreement and further
certify that their respective signatories are duly authorized to execute this
Agreement.
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360
GLOBAL WINE COMPANY
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| /s/ Xxxx Xxxxxxx | |||
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Xxxx Xxxxxxx |
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| CEO and Authorized Signatory |
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360
GLOBAL FINANCIAL, LLC 2
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| /s/ Xxxxxx Eplboim | |||
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Xxxxxx Eplboim |
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| Managing Member |
Primary
360 Global Financial, LLC 2 Operatives for this engagement will be:
| 1. |
Xxxxxx
Eplboim, a Member
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| 2. |
Xxxx
Xxxxxx, a Member
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