AGREEMENT
AGREEMENT
This
Agreement (the “Agreement”) is made and entered into effective as of October 1,
2005 (the “Effective Date”), between Western Media Group Corporation, Inc., a
Minnesota corporation, with its principal offices located at 00 Xxxx Xxxxx,
Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000 (the “COMPANY”) and High River Corporation,
with a principal address at High
River Corporation, X/X Xxxxx & Xxxxx, X.X. Xxx 0000, Xxxx Xxxx,
Xxxxxxx
Xxxxxxx
Virgin Islands (“CONSULTANT”).
WHEREAS,
the Company is seeking to expand its business through contracts with hospitals
and doctors and various other strategic business relationships in Germany;
and
WHEREAS,
the Company is seeking to increase market awareness of the Company in German
markets; and
WHERAS,
the Company is seeking to list its Class B shares on each of the Berlin and
Frankfurt stock exchanges; and
WHERAS,
the Company is seeking to engage Consultant to assist it in Investment Banking,
Investor Relations, Business Development, and aligning strategic alliances
for
the purposes of introducing the MedLink EHR to the European market;
and
WHEREAS,
Consultant wishes to assist the Company by finding hospitals, doctors, and
other
strategic business relationships in the German market; and
WHEREAS,
Consultant wishes to assist the Company in the listing of the Company’s Class B
shares of common stock on the Berlin and Frankfurt stock exchanges and by
utilizing its substantial business contacts to bring awareness in Germany to
the
Company’s publicly traded common stock; and
WHEREAS,
Consultant has relationships which it can leverage to assist the Company in
strategic business development for the MedLink EHR in the German markets;
and
WHEREAS,
the Company wishes to retain Consultant to provide such services for the
consideration as set forth herein.
NOW,
THEREFORE, the parties agree as follows:
1. Appointment
as Consultant
1.1 Appointment.
On the
basis of the representations, warranties and covenants contained in this
Agreement, but subject to the terms and conditions herein set forth, the Company
is appointing Consultant for the purpose of utilizing the Consultant’s extensive
contacts to structure and consummate strategic business relationships in the
German markets, in addition, to utilizing its expertise and the expertise of
its
employees to bring awareness to the Company’s publicly traded common stock in
German markets, as well as to assist the Company in acquiring listing on the
Frankfurt and Berlin stock exchanges for its Class B shares of common stock,
for
a period of one year from the date of this Agreement (the “Term”). The Term
shall be automatically extended by both parties should the Consultant be engaged
in an ongoing negotiation with any targeted party until the completion of such
negotiation, or as otherwise mutually agreed upon by the parties hereto.
Consultant accepts the appointment, agrees on the terms and conditions herein
set forth and agrees to use its best efforts during the Term to perform the
services described herein.
1.2 Scope
of Appointment.
Consultant, by virtue of this Agreement or otherwise, is not an agent of the
Company. As a Consultant for the Company under this Agreement, Consultant is
to:
| 1.2.1 | contact prospective offerees of the Company’s products and services; |
| 1.2.2 | give such offerees information concerning the Company, its business and personnel as prescribed by the Company; |
| 1.2.3 | introduce such prospective offerees to the Company; |
| 1.2.4 |
assist
the Company in negotiations with prospective
offerees;
|
| 1.2.5 |
assist
the Company in potential investment banking transactions in
Germany;
|
| 1.2.6 |
assist
the Company in acquiring a listing on the Berlin and Frankfurt stock
exchanges for its Class B shares of common stock;
and
|
| 1.2.7 |
align
strategic alliances for the Company to help it introduce the MedLink
EHR
and suite of associated products to the German
market.
|
1.3 Nature
of Relationship.
1.3.1 Independent
Contractor Status.
Consultant shall be an independent contractor and, except as expressly provided
or authorized in this Agreement, shall have no authority to act for or represent
the Company.
1.3.2 Use
of
Other Consultants/Exclusivity.
The
Company shall be free to use other Consultants for the offering of its products
and services. However, Consultant shall not, during the Term, provide services
to any company which offers products or services similar to those offered by
the
Company.
1.3.3 No
Additional Compensation.
Consultant shall not be entitled to any compensation from, or reimbursement
of
expenses by, the Company in connection with the performance of Consultant’s
duties hereunder, except as set forth herein.
2. Representations
and Warranties of the Company.
The
Company represents, warrants and agrees with Consultant that:
2.1 The
Company is duly organized and validly existing corporation under the laws of
the
State of Delaware, and has all requisite authority to own its property and
conduct its business as currently conducted.
2.2 The
execution and delivery by the Company of this Agreement and the Option, and
the
performance by the Company of its obligations hereunder, have been duly and
validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
its terms.
3. Representations,
Warranties and Covenants of the Consultant.
Consultant
represents, warrants and agrees with the Company that Consultant has full power
and authority to execute and deliver, to perform its obligations under, and
to
consummate the transactions contemplated by this Agreement. This Agreement
is a
valid and legally binding obligation of Consultant, enforceable against it
in
accordance with its terms. Consultant is not restricted or prohibited,
contractually, by court order, agreement or otherwise, from entering into and
performing this Agreement, and the services to be performed hereunder, and
Consultant’s execution and performance of this Agreement is not a violation or
breach of any agreement between Consultant and any other person or
entity.
4. Compensation.
As
compensation for the completion of the Consultant’s services as described
herein, , the Consultant shall be: (i) compensated with 1,640,000 shares of
the
Company’s Class B common stock; and (ii) granted the option to purchase up to
610,000 shares of the Company’s Class B common stock (“Option”) exercisable at
$0.177 per share for a period of 90 days from the date of issuance (“Exercise
Period”). After expiration of the Exercise Period Consultant shall have no right
to purchase the Class B shares of common stock underlying the
Option.
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5. Grant
of Option.
5.1 Grant
of Option.
Subject
to the terms and conditions of this Agreement, upon the listing of the Company’s
Class B common stock on the Berlin or Frankfurt stock exchange, the Company
grants to the Consultant the Option to purchase up to 610,000 shares of Class
B
common stock (the “Option Shares”) from the Company.
5.2 Exercise
Price.
The
price to be paid by the Consultant for each Option Share in the event of an
exercise of all or any portion of the Option shall be $0.177 (the “Exercise
Price”) per Option Share.
5.3 Duration
of Option.
The
Option shall vest and become immediately exercisable with respect to the Option
Shares on the day immediately following the date on which the Company’s Class B
common stock is listed on either the Berlin or Frankfurt stock exchange (“Option
Commencement Date”) and shall expire on and no longer be exercisable after the
date expiration of the Exercise Period.
5.4 Exercise
of Option.
5.4.1 Manner.
The
Option may be exercised by the Consultant in whole or in part, subject to the
conditions contained herein, by the Consultant (i) paying in full the total
Exercise Price for the shares purchased and (ii) delivering, in person or by
registered mail, written notice of exercise to the Company substantially in
the
form of the Option Exercise Form attached hereto as Exhibit A. As soon as
practicable after such notice and payment are received, the Company shall cause
the Consultant to be recorded on the books of the Company as the owner of the
Option Shares purchased, and the Company shall deliver to the Purchaser one
or
more duly issued stock certificates evidencing such ownership.
5.4.2 Payment.
At the
time of exercise of this Option, the Consultant shall pay the Exercise Price
of
the Option Shares by certified bank check or wire transfer in immediately
available funds made payable to the Company.
6. Governing
Law; Jurisdiction.
This
Agreement and the enforcement thereof shall be governed by and construed under
the laws of the State of New York. The parties hereto consent to the
non-exclusive jurisdiction of any New York state or federal court and any
appellate court from any appeal thereof in any action or proceeding arising
out
of or relating to this Agreement, or the transactions contemplated
hereby.
7. Termination.
Consultant or the Company shall have the right to terminate this Agreement
by
giving written notice to the other; provided, however, that Consultant shall
be
compensated pursuant to Section 4 in the event that the Company’s Class B shares
of common stock are listed on either the Berlin or Frankfurt stock exchange
as a
result of Consultant’s efforts.
8. Notices.
All
notices provided for by this Agreement shall be made in writing either (i)
by
actual delivery of the notice, or (ii) by the mailing of the notice in the
United States mail to the party's last known address, by certified or registered
mail, return receipt requested. The notice shall be deemed to be received in
case (i) on the date of its actual receipt by the party entitled to notice
and
in case (ii) on the date of deposit in the United States mail.
9. Severability.
If any
portion of this Agreement is held invalid or inoperative, then, so far as is
reasonable and possible (i) the remainder of this Agreement shall be considered
valid and operative and (ii) effect shall be given to the intent manifested
by
the portion held invalid or inoperative.
10. Counterparts.
This
Agreement may be executed in a number of identical counterparts, each of which
shall be deemed to be an original, but all of which constitute, collectively,
one and the same Agreement; but in making proof of this Agreement, it shall
not
be necessary to produce or account for more than one counterpart.
11. Modification
or Amendment.
This
Agreement may not be modified or amended except by written agreement executed
by
the parties to this Agreement.
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12. Captions.
The
captions used in this Agreement are for convenience only and shall not be
construed in interpreting this Agreement.
13. Parties.
This
Agreement shall be binding upon and inure solely to the benefit of the parties
to this Agreement, the controlling persons of the parties and their respective
successors, legal representatives, heirs and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim
under
or in respect of by virtue of this Agreement or any provision contained in
this
Agreement.
14. Entire
Agreement.
This
Agreement contains the entire understanding between the parties and supersedes
any prior understanding or written or oral agreements between them respecting
the subject matter of this Agreement.
15. Arbitration.
In
the
event that there shall be a dispute, controversy or claim arising out of,
relating to or in connection with this Agreement or related to the subject
matter hereof, the Parties agrees that such dispute shall be submitted to
binding arbitration in New York City, under the auspices of, and pursuant to
the
rules of, the American Arbitration Association as then in effect, or such other
procedures as the Parties may agree to at the time, before a tribunal of three
arbitrators, one of which shall be selected by each of the Parties to the
dispute and the third of which shall be selected by the two arbitrators so
selected. Any award issued as a result of such arbitration shall be final and
binding between the Parties, and shall be enforceable
by any court having jurisdiction over the Party against whom enforcement is
sought.
16. Indemnification.
a.
Indemnification
of Company by Consultant. Consultant
agrees to indemnify and hold harmless the Company and its officers, directors,
employees and agents, up to the amount of compensation received under this
Agreement, against any and all loss, liability, claims, damage and expense,
including reasonable attorney fees, arising out of or based upon Finder’s breach
of this Agreement.
b.
Indemnification
of Consultant by Company. The
Company agrees to indemnify and hold harmless Consultant, against any and all
loss, liability, claims, damage and expense, including reasonable attorney
fees,
arising out of or based on this Agreement, including, but not limited to (1)
a
breach of this Agreement by the Company or (2) any claims arising out of
Consultant’s performance of services under this Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement on the date set
opposite their respective signatures below, but effective as provided
herein.
| Western Media Group Corporation | High River Corporation | ||||
| By: | By: | ||||
| Name: | Xxx Xxxxx | Name: | Xxxxxx Xxxxxx | ||
| Title: CEO | Title: | ||||
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Date:
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Date:
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EXHIBIT
A
OPTION
EXERCISE FORM
This
Option Exercise Form (this "Agreement”) by and between the undersigned optionee
High River Corporation, a British Virgin Islands company (the "Optionee"),
and
the undersigned optionor Western Media Group Corporation (the “Company”), is
executed and delivered pursuant to the Consulting Agreement (“Agreement”) dated
October _, 2005 by and between the Optionee and the Company.
Subject
to the foregoing, the Optionee hereby purchases ____________________ shares
(the
“Option Shares”) of common stock of the Company pursuant to that certain option
(the "Option") granted to the Optionee under the Agreement. Such shares are
purchased at a per share exercise price of $0.177 per share (“Exercise
Price”).
Concurrently
upon the delivery of this Agreement to the Company, the Optionee is delivering
the Exercise Price multiplied by the number of shares purchased by Optionee
to
the Company in accordance with and in the manner set forth in the Agreement.
Upon receipt of this notice and payment, the Company hereby agrees to
immediately (i) cause the Optionee to be recorded on the books of the Company
as
the owner of the Option Shares purchased, and (ii) deliver to the Optionee
one
or more duly issued stock certificates evidencing such ownership.
Dated:
[__________________]
| HIGH RIVER CORPORATION, | ||
| Optionee | ||
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| By: | ||
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| Receipt Acknowledged By: | ||
| WESTERN MEDIA GROUP CORPORATION | ||
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| By: | ||
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