Exibit 10.14
Consulting Agreement for Bidville, Inc.
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and entered into as of this 4th
day of January, 2003, by and between Mirador Consulting, Inc., a Florida
corporation, with offices at 0000 X. Xxxxxxx Xxx, Xxxxx X, Xxxx Xxxxx, Xxxxxxx
00000 ("Mirador" or the "Consultant"), and Bidville, Inc., a Nevada corporation,
with offices at 000 Xxxxx Xxxxxxx Xxxxx, #000, Xxxx Xxxx Xxxxx, XX 00000 (the
"Company") (together the "Parties").
WHEREAS, Consultant is in the business of providing services for management
consulting, business advisory, shareholder information and public relations;
WHEREAS, the Company deems it to be in its best interest to retain Consultant to
render to the Company such services as may be needed; and
WHEREAS, the Parties desire to set forth the terms and conditions under which
Consultant shall provide services to the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and other valid consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
Term of Agreement
The Agreement shall remain in effect from the date hereof through the expiration
of a period of six months from the date hereof (the "Term"), and thereafter may
be renewed upon the mutual written consent of the Parties.
Nature of Services to be rendered.
During the Term and any renewal thereof, Consultant shall: (a) provide the
Company with corporate consulting services on a best efforts basis in connection
with mergers and acquisitions, corporate finance, corporate finance relations,
introductions to other financial relations companies and other financial
services; (b) use its best efforts to locate and identify to the Company private
and/or public companies for potential merger with or acquisition by the Company;
(c) contact the Company's existing stockholders, responding in a professional
manner to their questions and following up as appropriate; and (d) use its best
efforts to introduce the Company to various securities dealers, investment
advisors, analysts, funding sources and other members of the financial community
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with whom it has established relationships, and generally assist the Company in
its efforts to enhance its visibility in the financial community (collectively,
the "Services"). It is acknowledged and agreed by the Company that Consultant
carries no professional licenses, and is not rendering legal advice or
performing accounting services, nor acting as an investment advisor or
brokerage/dealer within the meaning of the applicable state and federal
securities laws. The Services of Consultant shall not be exclusive nor shall
Consultant be required to render any specific number of hours or assign specific
personnel to the Company or its projects.
Disclosure of Information
Consultant agrees as follows:
The Consultant shall NOT disclose to any third party any material
non-public information or data received from the Company without the
written consent and approval of the Company other than: (i) to its agents
or representatives that have a need to know in connection with the Services
hereunder; provided such agents and representatives have a similar
obligation to maintain the confidentiality of such information; (ii) as may
be required by applicable law; provided, Consultant shall provide prompt
prior written notice thereof to the Company to enable the Company to seek a
protective order or otherwise prevent such disclosure; and (iii) such
information as becomes publicly known through no action of the Consultant,
or its agents or representatives.
Following receipt of written notice from the Company of a filing in
connection with a proposed public offering of the securities of the
Company, and until the Company informs the Consultant that such offering
has been completed or has terminated, the Consultant shall not engage in
any public relations efforts on behalf of the Company without approval of
counsel for the Company and counsel for the underwriter(s), if any.
Compensation.
The following represents the compensation to be received by the Consultant in
connection with rendering the Services hereunder:
Upon execution of the Agreement, the Consultant shall purchase and the
Company will issue to the Consultant 50,000 shares (fifty thousand) of the
Company's restricted common stock (OTCBB:AREP) for a total purchase price
of fifty dollars ($50.00) (the "Restricted Stock") as per the Investment
Representation Letter (incorporated by reference into the Agreement and
attached as Addendum A).
During the Term of this Agreement, the Company will pay to the Consultant
the sum of five thousand ($5,000.00) dollars per month; provided, however
that such payment for the first month shall be due and payable upon the
execution of this Agreement. Thereafter, monthly payments are due on the
first of every month, during the Term and any renewals thereof.
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Representations and Warranties of the Consultant.
In order to induce the Company to enter into this Agreement, the Consultant
hereby makes the following unconditional representations and warranties:
In connection with its execution of and performance under this Agreement,
the Consultant has not taken and will not take any action that will cause
it to become required to make any filings with or to register in any
capacity with the Securities and Exchange Commission (the "SEC"), the
National Association of Securities Dealers, Inc. (the "NASD"), the
securities commissioner or department of any state, or any other regulatory
or governmental body or agency.
Neither the Consultant nor any of its principals is subject to any sanction
or restriction imposed by the SEC, the NASD, any state securities
commission or department, or any other regulatory or governmental body or
agency, which would prohibit, limit or curtail the Consultant's execution
of this Agreement or the performance of its obligation hereunder.
The Consultant's purchase of shares pursuant to this Agreement is an investment
made for its own account.
The Consultant is permitted to provide consulting services to any
corporation or entity engaged in a business identical or similar to the
Company's.
Duties of the Company.
The Company will supply Consultant, on a regular basis and timely basis, with
all approved data and information about the Company, its management, its
products, and its operations as reasonably requested by Consultant and which the
Company can obtain with reasonable effort; and Company shall be responsible for
advising Consultant of any facts which would affect the accuracy of any prior
data and information previously supplied to Consultant so that the Consultant
may take corrective action.
The Company shall promptly supply Consultant with full and complete copies of
all filings with all federal and state securities agencies; with full and
complete copies of all stockholder reports and communications whether or not
prepared with the assistance of Consultant; with all data and information
supplied to any analyst, broker-dealer, market maker, or other member of the
financial community and with all product/services brochures, sales materials,
etc. filed or prepared by the Company after the date of this Agreement. Company
shall supply to Consultant, within 15 days of execution of this Agreement, with
a list of all stockbrokers and market makers active in the stock of Company, and
a complete list of all shareholders.
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The Company's counsel must, within five (5) business days of receiving written
notice from the Consultant, provide an opinion letter to the Consultant and the
Transfer Agent for the Company's Restricted Stock addressing the permissible
resale of the Restricted Stock and the M&A Restricted Stock (pursuant to Rule
144 of the Securities Act of 1933, as amended (the "1933 Act") transferred to
the Consultant under this Agreement.
The Consultant's reports are not intended to be used in the offering of
securities. Accordingly, the Company agrees as follows:
Company will notify Consultant in writing a minimum of thirty (30) days
prior to making any private or public offering of securities, including but
not limited to an offering registered on form S-8 or made pursuant to
Regulation S or Regulation D.
Company will notify Consultant within 5 business days to any "insider"
selling of Company's stock. Company will not utilize any Consultant reports
in connection with any offering (public or private) of securities without
the prior written consent of Consultant.
Representations and Warranties of the Company.
In order to induce the Consultant to enter into this Agreement, the Company
hereby makes the following unconditional representations and warranties:
The Company is not subject to any restriction imposed by the SEC or by
operation of the 1933 Act, the Exchange Act of 1934, as amended (the "1934
Act") or any of the rules and regulations promulgated under the 1933 Act or
the 1934 Act which prohibit its execution of this Agreement or the
performance of its obligations to the Consultant set forth herein.
The Company has not been sanctioned by the SEC, the NASD or any state
securities commissioner or department in connection with any issuance of
its securities.
All payments required to be made on time and in accordance with the payment
terms and conditions set forth herein.
The Company acknowledges that the Consultant does not guarantee its ability
to cause the consumption of any contract or merger or acquisition with any
corporate candidate.
Compliance with Securities Laws
The Parties acknowledge and agree that the Company is subject to the
requirements of the 1934 Act, and that the 1933 Act, the 1934 Act, the rules and
regulations promulgated thereunder and the various state securities laws
(collectively, "Securities Laws") impose significant burdens and limitations on
the dissemination of certain information about the Company by the Company and by
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persons acting for or on behalf of the Company. Each of the Parties agrees to
comply with all applicable Securities Laws in carrying out its obligations under
the Agreement; and without limiting the generality of the foregoing, the Company
hereby agrees (i) all information about the Company provided to the Consultant
by the Company, which the Company expressly agrees may be disseminated to the
public by the Consultant in providing any public relations or other services
pursuant to the Agreement, shall not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements made,
in light of the circumstances in which they were made, not misleading, (ii) the
Company shall promptly notify the Consultant if it becomes aware that it has
publicly made any untrue statement of a material fact regarding the Company or
has omitted to state any material fact necessary to make the public statements
made by the Company, in light of the circumstances in which they were made, not
misleading, and (iii) the Company shall promptly notify the Consultant of any
"quiet period" or "blackout period" or other similar period during which public
statements by or on behalf of the Company are restricted by any Securities Law.
Each Party (an "indemnifying party") hereby agrees, to the full extent permitted
by applicable law, to indemnify and hold harmless the other Party (the
"indemnified party") for any damages caused to the indemnified party by the
indemnifying party's breach or violation of any Securities Law, except to the
extent that the indemnifying party's breach or violation of a Securities Law is
caused by the indemnified party's breach or violation of the Agreement, or any
Securities Law.
Issuance of Restricted Stock to Consultant
The Restricted Stock shall be issued as fully-paid and non-assessable
securities. The Company shall take all corporate action necessary for the
issuance Restricted Stock, to be legally valid and irrevocable, including
obtaining the prior approval of its Board of Directors.
Expense Reimbursement.
Consultant shall be entitled to receive cash reimbursement, and the Company
shall provide cash reimbursement, of all reasonable and necessary cash expenses
paid by the Consultant on behalf of the Company in performance of its own duties
hereunder. Such expenses shall include, without limitation, reasonable expenses
for communications, deliveries and travel. In no event, however, will the
Consultant incur on behalf of the Company any expense without the prior written
consent of the Company.
Registration Obligations.
At any time following the signing of the Agreement if the Company files a
registration statement with the SEC registering an amount of securities equal to
at least $500,000 ("Registration Statement"), the Company must provide a ten
(10) day prior written notice of the Registration Statement to the Consultant
and any subsequent holder of the Restricted Stock and at the written request and
direction of the Consultant and/or subsequent holders must provide piggy back
registration rights and include the consultant and/or subsequent holders shares
in the Registration Statement.
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Indemnification of Consultant by the Company.
The Company acknowledges that the Consultant relies on information provided by
the Company in connection with the provisions of Services hereunder and
represents that said information does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements made, in light of the circumstances in which they were made, not
misleading, and agrees to hold harmless and indemnify the Consultant for claims
against the Consultant as a result of any breach of such representation and for
any claims relating to the purchase and/or sale of the Company's securities
occurring out of or in connection with the Consultant's relationship with the
Company including, without limitation, reasonable attorney's fees and other
costs arising out of any such claims; provided, however, that the Company will
not be liable in any such case for losses, claims, damages, liabilities or
expenses that arise from the gross negligence or willful misconduct of
Consultant.
Indemnification of the Company by the Consultant.
The Consultant shall identify and hold harmless the Company and its principals
from and against any and all liabilities and damages arising out of any the
Consultant's gross negligence or intentional breach of its representations,
warranties or agreements made hereunder.
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 under and pursuant to the laws of the State of
Florida and that in any action, special proceeding or other proceedings that may
be brought arising out of, in connection with or by reason of this Agreement,
the law of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the jurisdiction on
which any action or special proceeding may be instituted.
Arbitration.
Any and all conflicts, disputes and disagreements arising out of or in
connection with any aspect of the Agreement shall be subject to binding
arbitration before a one arbitrator panel of the American Arbitration
Association located in Miami Dade County, Florida.
Attorney Fees.
In the event a legal action or arbitration is commenced by a Party to the
Agreement alleging a default of the terms or conditions of the Agreement and
judgment is held in favor of the non-moving party (respondent/ defendant), the
non-moving party shall be entitled to recover all costs incurred as a result of
defending such action including reasonable attorney fees, expenses and court
costs through trial, appeal and to final disposition.
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Entire Understanding/Incorporation of other Documents.
The Agreement contains the entire understanding of the Parties with regard to
the subject matter hereof, superseding any and all prior agreements or
understandings whether oral or written, and no further or additional agreements,
promises, representations or covenants may be inferred or construed to exist
between the Parties.
No Assignment or Delegation Without Prior Approval.
No portion of the Agreement or any of its provisions may be assigned, nor
obligations delegated, to any other person or party without the prior written
consent of the Parties except by operation of law or as otherwise set forth
herein.
Survival of Agreement.
The Agreement and all of its terms shall inure to the benefit of any permitted
assignees of or lawful successors to either Party.
Independent Contractor.
Consultant agrees to perform its consulting duties hereto as an independent
contractor. Nothing contained herein shall be considered to as creating an
employer-employee relationship between the parties to this Agreement.
No Amendment Except in Writing.
Neither the Agreement nor any of its provisions may be altered or amended except
in a dated writing signed by the Parties.
Waiver of Breach.
No waiver of any breach of any provision hereof shall be deemed to constitute a
continuing waiver or a waiver of any other portion of the Agreement.
Severability of the Agreement.
Except as otherwise provided herein, if any provision hereof is deemed by
arbitration or a court of competent jurisdiction to be legally unenforceable or
void, such provision shall be stricken from the Agreement and the remainder
hereof shall remain in full force and effect.
Termination of the Agreement.
Either Party may terminate the Agreement, with or without cause, by providing a
thirty (30) day written notification to the other Party. The Agreement will
terminate thirty (30) days following the date of receipt of the written
notification by the non-terminating party ("Date of Termination"). In the event
of termination of the Agreement by the Company, the Consultant shall be entitled
to keep any and all fees, Company stock or other compensation it received from
the Company under the Agreement prior to the Date of Termination.
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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. Such facsimile copies shall constitute enforceable
original documents.
No Construction Against Drafter.
The Agreement shall be construed without regard to any presumption or other
requiring construction against the Party causing the drafting hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, effective as of the date set forth above.
Bidville, Inc. Mirador Consulting, Inc.
By:/s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxx
--------------------------- --------------------
Xxxxxx X. Xxxxxx, President and Chairman Xxxxx X. Xxxx, President
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INVESTMENT REPRESENTATION LETTER
(ADDENDUM A)
The undersigned subscriber, Mirador Consulting, Inc., (the "Subscriber") is
acquiring 50,000 shares of the common stock (the "Shares") of AREP (the
"Company") for Fifty Dollars ($50.00) in connection with the Consulting
Agreement, dated December 22nd 2003, between the Subscriber and the Company. In
order to induce the Company to issue the shares to the Subscriber, the
Subscriber hereby makes the following representations, gives the following
warranties, and acknowledges the following information:
1. The Subscriber represents that it has full power and authority to execute
this statement and make the representations contained herein. The Subscriber
understands that the Company is relying on this statement in issuing it the
Shares.
2. The shares are being purchased solely for investment purposes, for the
Subscriber's own account, and not with a view to, or for sale in conjunction
with, any distribution of the shares within the meaning of the Securities Act of
1933, as amended (the "Securities Act"). The Subscriber further represents that
it does not have any contract, undertaking or arrangement with any person to
sell, transfer or grant participation to such person or to any third person,
with respect to any of the Shares.
3. The Subscriber acknowledges that the Shares have not been registered under
the Securities Act and are to be issued to the Subscriber in reliance upon one
or more exemptions from registration contained in the Securities Act and
applicable state securities laws. The Subscriber has no right to demand the
registration of the Shares to permit them to be resold, and no representations
about subsequent registrations have been made by the Company. The Subscriber
acknowledges that the Shares cannot be transferred except pursuant to a
registration under the Securities Act or pursuant to an exemption from the
Securities Act deemed to be lawfully available. In this connection, the
Subscriber represents that it is familiar with SEC Rule 144 as presently in
effect, and understand the resale limitations imposed thereby and by the
Securities Act.
4. The Subscriber acknowledges that the exemption provided by Rule 144 under the
Securities Act provide for limited sale of unregistered shares but may not be
available to the Subscriber at the time he or she may desire to sell the shares.
No representations have been made to the Subscriber that any part of the shares
will be saleable Pursuant to Rule 144 at any particular time.
5. The Subscriber has had an opportunity to ask questions of and receive answers
from the Company regarding the Company, its business and prospects and the terms
and conditions of the sale of the Shares. It believes it has received all the
information it considers necessary or appropriate for deciding whether to
acquire the Shares.
6. The Shares represent a speculative investment involving a high degree of risk
loss of the purchase price. The Subscriber has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of an investment in the Shares and of making an informed investment
decision. The Subscriber is able to bear the economic risk of the investment in
the Share, to hold the Shares an indefinite period of time, and to afford a
complete loss of the purchase price.
7. The Shares will be represented by a certificate bearing a prominent legend
setting forth the restricted nature of the Shares as deemed appropriate by the
Company's counsel.
8. The Subscriber will not sell, transfer, pledge or otherwise dispose of or
encumber any of the Shares it receives unless and until (i) such shares are
subsequently registered under the Securities Act and each applicable state
securities law; or (ii) (1) an exemption from such registration is available
thereunder,
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and (2) the undersigned has notified the Company of the proposed transfer and
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such transfer will not require registration of such shares
under the Act. The undersigned understands that the Company is not obligated,
and does not intend, to register any such shares under the Act or any state
securities laws.
ACCEPTED BY:
Mirador Consulting, Inc. Bidville, Inc.
By: /s/ Xxxxx X. Xxxx By:/s/ Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------
Xxxxx X. Xxxx, President Xxxxxx X. Xxxxxx, President and Chairman
DATE: January 4, 2004 DATE: January 4, 2004
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