CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ( the "Agreement") is made this 6th day of
October 2000, by and between Xxxxxx Consulting Group, Inc., a Nevada corporation
("Consultant") and Professional Wrestling Alliance Corporation, a Delaware
Corporation (the "Company").
WHEREAS, Consultant and Consultants's Personnel (as defined below) have
experience in evaluating and effecting mergers and acquisitions, advising
corporate management, and in performing general administrative duties for
publicly-held companies and development stage investment ventures; and
WHEREAS, the Company desires to retain Consultant to advise and assist
the Company in its development on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Consultant agree as follows:
1. Engagement
The Company hereby retains Consultant, effective as of the date hereof
( the "Effective Date") and continuing until termination, as provided
herein, to assist the Company in it's effecting the purchase of
businesses and assets relative to its business and growth strategy,
general business and financial issues consulting, the introduction of
the Company to consultants and others that may assist the Company in
its plans and future (the "Services"). The Services are to be provided
on a "best efforts" basis directly and through Consultant's officers or
others employed or retained and under the direction of Consultant
("Consultant's Personnel"); provided, however, that the Services shall
expressly exclude all legal advice, accounting services or other
services which require licenses or certification which Consultant may
not have.
It is expressly understood by the parties that while Consultant has
employees who are licensed to practice law and accounting, such
attorneys and accountants represent the interests of Consultant and not
the Company. Consultant is not hired to render legal or accounting
advise and will not do so. The Company agrees that with respect to any
services rendered by Consultant which may involve legal or accounting
issues, the Company will seek the advise of its own attorneys and
accountants..
2. Term
This Agreement shall have an initial term of twelve (12) months (the
"Primary Term"), commencing with the Effective Date. At the conclusion
of the Primary Term this Agreement will automatically be extended on
for the same term ( the "Extension Period") unless Consultant or the
Company shall serve written notice on the other party terminating the
Agreement. Any notice to terminate given hereunder shall be in writing
and shall be delivered at least thirty (30) days prior to the end of
the Primary Term or any subsequent Extension Period.
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3. Time and Effort of Consultant
Consultant shall allocate time and Consultants Personnel as it deems
necessary to provide the Services. The particular amount of time may
vary from day to day or week to week. Except as otherwise agreed,
Consultant's monthly statement identifying, in general, tasks performed
for the Company shall be conclusive evidence that the Services have
been performed. Additionally, in the absence of willful misfeasance,
bad faith, negligence or reckless disregard for the obligations or
duties hereunder by Consultant, neither Consultant nor Consultant's
Personnel shall be liable to the Company or any of its shareholders for
any act or omission in the course of or connected with rendering the
Services, including but not limited to losses that may be sustained in
any corporate act in any subsequent Business Opportunity (as defined
herein) undertaken by the Company as a result of advice provided by
Consultant or Consultants's Personnel.
4. Compensation
The Company agrees to pay Consultant a fee for the Services
("Consultant Fee") as follows:
1. The Company agrees to pay to Consultant for work performed to
the date of this agreement with respect to settlement of
Company's debts, business consulting and finding and introducing
Xxxx Xxxxxx and Gateway Distributors, Ltd. as an acquisition
candidate, the Sum of one hundred fifty thousand dollars
($150,000), which sum shall be due and owing at the closing of
the Acquisition Agreement between Professional Wrestling Alliance
Corporation and Gateway Distributors, Ltd.
2. From the date of this agreement, Consultant will xxxx for time
expended on behalf of the Company and for out of pocket costs.
3. The Company shall pay for time expended at the rate of $240
per hour, payable as follows:
(i) $40.00 per hour shall be paid in cash.
(ii) The remaining $200 per hour will be paid in restricted
shares of the Company at the bid price of the Company's
shares on the date of billing. (iii) All shares issued
pursuant to invoice are considered fully earned and non-
assessable as of the invoice date.
5. Other Services
If the Company enters into a merger or exchanges securities with, or
purchases the assets or enters into a joint venture with, or makes an
investment in a company other than gateway Distributers, Ltd., which
company is introduced to or referred to the Company by Consultant ( a
"Business Opportunity"), the Company agrees to pay Consultant a fee
equal to ten percent (10%) of the value of each Business Opportunity
introduced by Consultant and acquired or otherwise participated in by
the Company (collectively referred to herein, in each instance, as the
"Transaction Fee"), which shall be payable immediately following the
closing of each such transaction, in restricted shares of the Company's
common stock or in kind if an acquisition is made at the Company's
option, if paid in cash the Transaction Fee shall be reduced to five
percent (5%).
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6. Registration of Shares
Company agrees that any shares issued to satisfy a Transaction Fee may
be registered by the Company with the Securities and Exchange
Commission under any subsequent applicable registration statement filed
by the Company at the Company's discretion. Such issuance or
reservation of shares shall be in reliance on representations and
warranties of Consultant set forth herein.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Consultant in
the performance of the Services or for the settlement of debts shall be
paid by the Company, or Consultant shall be reimbursed if paid by
Consultant on behalf of the Company, within ten (10) days of receipt of
written notice by Consultant, provided that the Company must approve in
advance all such expenses in excess of $500 per month.
8. Place of Services
The Services provided by Consultant or Consultant's Personnel hereunder
will be performed at Consultant's offices except as otherwise mutually
agreed by Consultant and the Company.
9. Independent Contractor
Consultant and Consultant's Personnel will act as an independent
contractor in the performance of its duties under this Agreement.
Accordingly, Consultant will be responsible for payment of all federal,
state, and local taxes on compensation paid under this Agreement,
including income and social security taxes, unemployment insurance, and
any other taxes due relative to Consultant's Personnel, and any and all
business license fees as may be required. This Agreement neither
expressly nor impliedly creates a relationship of principal and agent,
or employee and employer, between Consultant's Personnel and the
Company. Neither Consultant nor Consultant's Personnel are authorized
to enter into any agreements on behalf of the Company. The Company
expressly retains the right to approve, in its sole discretion, each
Asset Opportunity or Business Opportunity introduced by Consultant, and
to make all final decisions with respect to effecting a transaction on
any Business Opportunity.
10. Rejected Asset Opportunity or Business Opportunity
If, during the Primary Term of this Agreement or any Extension Period,
the Company elects not to proceed to acquire, participate or invest in
any Business Opportunity identified and/or selected by Consultant,
notwithstanding the time and expense the Company may have incurred
reviewing such transaction, such Business Opportunity shall revert back
to and become proprietary to Consultant, and Consultant shall be
entitled to acquire or broker the sale or investment in such rejected
Business Opportunity for its own account, or submit such assets or
Business Opportunity elsewhere. In such event, Consultant shall be
entitled to any and all profits or fees resulting from Consultant's
purchase, referral or placement of any such rejected Business
Opportunity, or the Company's subsequent purchase or financing with
such Business Opportunity in circumvention of Consultant
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11. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Company and Consultant, or employee
and employer as between Consultant's Personnel and the Company.
12. Termination
The Company and Consultant may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) By the Company.
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(i) If during the Primary Term of this Agreement or any
Extension Period, Consultant is unable to provide the
Services as set forth herein for thirty (30) consecutive
business days because of illness, accident, or other
incapacity of Consultant's Personnel; or,
(ii) If Consultant willfully breaches or neglects the duties
required to be performed hereunder; or,
(iii)At Company's option without cause upon 30 days written
notice to Consultant; or
(B) By Consultant.
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(i) If the Company breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in an Initial
Merger, sells a controlling interest to a third party, or
agrees to a consolidation or merger of itself with or into
another corporation, or enters into such a transaction
outside of the scope of this Agreement, or sells
substantially all of its assets to another corporation,
entity or individual outside of the scope of this Agreement;
or,
(iii)If the Company subsequent to the execution hereof has a
receiver appointed for its business or assets, or otherwise
becomes insolvent or unable to timely satisfy its
obligations in the ordinary course of, including but not
limited to the obligation to pay Fees; or,
(iv) If the Company subsequent to the execution hereof
institutes, makes a general assignment for the benefit of
creditors, has instituted against it any bankruptcy
proceeding for reorganization for rearrangement of its
financial affairs, files a petition in a court of
bankruptcy, or is adjudicated a bankrupt; or,
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(v) If any of the disclosures made herein or subsequent hereto
by the Company to Consultant are determined to be materially
false or misleading.
In the event Consultant elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term or
any Extension Period by mutual written agreement, or by the Company for
any reason, the Company shall be responsible to pay Consultant for
unreimbursed expenses and earned fees accrued up to and including the
effective date of termination.
13. Indemnification
Subject to the provisions herein, the Company and Consultant agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of
any representation, warranty, covenant, condition, or agreement of the
other party to this Agreement.
14. Remedies
Consultant and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance.
Such remedy, however, shall be cumulative and nonexclusive and shall be
in addition to any other remedy to which the parties may be entitled.
15. Miscellaneous
(A) Subsequent Events. Consultant and the Company each agree to
notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could
compromise its efforts and obligations under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) Further Actions and Assurances. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents as may be
reasonably necessary to effectuate the purposes of this
Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this Agreement
to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to
enforce each and every such provision. No waiver of any breach
of or noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
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(E) Assignment. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other or as stated herein.
(F) Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the communication
is addressed:
(i) In the case of the Company:
Professional Wrestling Alliance Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx Xxx Xxxxx, Xxxxxx 00000
Telephone (000) 000-0000
Attention Xxxx Xxxxxx, President
(ii) In the case of Consultant:
Xxxxxx Consulting Group, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Attention Xxxxxxx X. Xxxxxx, President
or to such other person or address designated in writing by the Company or
Consultant to receive notice.
(G) Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) Governing Law. This Agreement was negotiated and is being
contracted for in Utah, and shall be governed by the laws of
the State of Utah, and the United States of America, not
withstanding any conflict-of-law provision to the contrary.
(I) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the
parties relating to the subject matter of this Agreement. No
oral understan dings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express
or implied, other than as set forth herein, have been made by
any party.
(K) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(L) Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be
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executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument, by one or more
parties hereto and such executed copy may be delivered by
facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such
party can be seen. In this event, such execution and delivery
shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(M) Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date above written.
The "Company" "Consultant"
Professional Wrestling Alliance Corporation Xxxxxx Consulting Group, Inc.
A Delaware Corporation A Nevada Corporation
By: /s/Xxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: President Title: President
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