Ex. 10.7.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into as of February
12, 2003 between Paramaco Financial Group, Inc., a Nevada corporation
(the "Company") and Resource Capital Management, Inc., a Delaware corporation
("RCM" or the "Consultants") for the purpose of engaging the Consultants to
act as sole restructuring agent to the Company to create and execute a
comprehensive capital restructuring (Restructuring) of the Company's present
capitalization. The strategy will include (i) recommendation of legal counsel
for the drafting of legal documents, memorandums and securities fillings, (ii)
recommendation of an investment banker to provide analyst reports/valuation
and fairness opinions, (iii) recommendation of one or more consultants to
provide corporate strategic planning, marketing strategy, investor relations,
financial public relations and corporate public relations; and (iv)
coordination of the execution of documents and activities of other experts who
participate in the Restructuring. The delivery of the duly executed agreements
and strategy outline shall be conclusive evidence that the performance by RCM
is satisfactory to the Company and that the Consultants have performed in
accordance with this Agreement.
1. Retention and Services. The Company hereby retains the
Consultants as the exclusive consultant in connection with the
structuring, drafting, presentation and negotiations and endeavoring to
achieve a successful conclusion of the Restructuring. Introductions to
professionals and other consultants made by the Consultants will be
considered exclusive for purposes of this Agreement. Documents
prepared in connection with this Agreement shall not be given to others,
without approval from Consultants. The Consultants will use their
reasonable best efforts to structure, draft, present and negotiate
on behalf of Company. Upon execution of this Agreement, the Consultants
will meet with the Company at the Consultant's offices in Houston, Texas,
to review the available resources, time frames, and develop a critical
path for execution of the proposed strategy.
2. Collection of Information The initial undertakings by the
Consultants will include the collection, confirmation and verification of
the following information; (i) articles of incorporation or other
charter documents and any amendments thereto; (ii) by-laws; (iii) minutes
of all meetings of the board of directors since inception; (iv)
minutes of all meetings of shareholders; (v) all communications with
shareholders, including notices regarding annual meetings, special
meetings, along with copies of the agenda's of such meetings; (vi) leases
the Company is currently a party to; (vii) list of all pending or
threatened litigation, with legal counsel's statement as to current status
and likely outcome as well as a list of any past litigation with outcome
noted; (viii) merger and acquisition agreements, letters of intent, and
plans of reorganization entered into by the Company; (ix) employment
agreements; questionnaire completed by all board members and officers of
the Company; (x) any stock options, plans or agreements of the Company;
(xi) any finders' fee agreements or agreements with any promoters; (xii)
the Company's most recent business plans; (xiii) list of shareholders with
number of shares owned certified as correct by the Company's transfer
agent; (xiv) any material agreements to which the Company is a party; (xv)
the amount of money that the Company wishes to raise, and the potential
sources, if known, (xvi); a detailed description of the use of proceeds
from a successful financing; and (xvii) most recent financial statements.
After collection of the above described information about the
Company, the Consultant(s) will coordinate with experts engaged by the
Company and by Consultants and prepare documents for the Restructuring.
The Consultant(s) will use its reasonable best efforts to accomplish a
successful Restructuring utilizing information obtained by RCM from the
Company, including but not limited to: investor contacts, instrumentation,
presentation, economic analysis, financial modeling, and negotiations
skills needed to achieve a successful Restructuring. RCM or the Company,
with thirty days prior notice, without cause may terminate (except for
Schedule A and Sections 4, 9, and 10 of this Agreement that shall
remain in full force and effect) this engagement at any time. In
the event of termination, if any restructuring takes place within two
years of the date of termination with any party with which RCM or the
Company had been in contact with respect to possible participation in
the restructuring during the term of this Agreement, RCM will be
compensated as though the transaction occurred during the term of this
Agreement. In the event of termination the Company will not be free to
use any documents prepared by or with the help of the Consultants during
the term of the Agreement, the Company will not, directly or
indirectly, offer the Restructuring, or otherwise contact, approach or
negotiate with respect thereto, with any person or persons, other than
through the Consultants, as agent, except as provided above.
3. Information provided by the Company. In connection with
activities hereunder, the Company will furnish the Consultants and their
counsel upon request with all material and information regarding the
business and financial condition of the Company available to the Company
(all such information so furnished being the "Information"). The
Consultants will perform due diligence, however, the Company recognizes
and confirms that the Consultants: (a) will use and rely primarily on the
Information and on information available from generally recognized public
sources in performing the services contemplated by the Agreement without
having independently verified the same; (b) are authorized as the
Company's sole restructuring agent, to transmit to any prospective
investor/lender a copy or copies of the Information, and any additional
information expressly provided by transmission to any
prospective the lender by or on behalf of the Company in connection with
the performance of the Consultants' services hereunder or any transaction
contemplated hereby; (c) does not assume responsibility
for the accuracy or completeness of the Information and such other
information; (d) will not make an appraisal of any securities or assets of
the Company; and (e) retains the right to continue to perform due
diligence during the course of the engagement. The Consultants agree to
keep the information confidential, so long as it is and remains
non-public, unless disclosure is required by law or requested by any
government or regulatory agency or body, and the Consultants will not
make use thereof, except in connection with their services hereunder for
the Company.
4. Use of Name. The Company agrees that any reference to the
Consultants in any release, communication, or material distributed to
prospective investors or lenders is subject to the Consultants' prior
written approval. If the Consultants resign prior to the dissemination of
any such release, communication or material, no reference shall be made
therein to the Consultants
5. Use of Advice. No advice rendered by the Consultants in
connection with the services performed by the Consultants pursuant to this
Agreement will be quoted by either party hereto, nor will any such advice
be referred to in any report, document, release or other communication,
whether written or oral, prepared, issued or transmitted by such party or
any Person or corporation controlling, controlled by or under common
control with such party or any director, officer, employee, agent or
representative of any such party thereof, without the prior written
authorization of all parties hereto, except to the extent required
by law (in which case the appropriate party shall so advise the other in
writing prior to such use and shall consult with the other with respect
to the form and timing of disclosure), provided that the foregoing shall
not prohibit appropriate internal communication or reference with respect
to such advice internally within such parties.
6. Compensation. As full payment for services rendered and to be
rendered hereunder by the Consultants, the Company agrees to issue to
consultants 200,000 restricted shares of Common Stock.
7. Securities Not Registered Under the Securities Act of 1933.
The shares of Common Stock have not been registered under the Securities
Act of 1933 or the laws of any state of the United States and may not be
transferred without such registration or an exemption from registration.
(a) Restrictive Legends. Each share of Common Stock and each
common stock certificate issued upon the transfer of any such shares of
Common Stock (except as otherwise permitted by this Section 7), shall be
stamped or otherwise imprinted with a legend in substantially the
following form: "The securities represented hereby have not been
registered under the Securities Act of 1933. Such securities may not be
sold or transferred in the absence of such registration or an exemption
therefrom under said Act."
(b) Notice of Proposed Transfer; Opinions of Counsel. Except
as provided in paragraph (c) of this Section 7, prior to any transfer of
any such shares of Common Stock the holder thereof will give written
notice to the Corporation of such holder's intention to effect such
transfer and to comply in all other respects with this Section 7. Each
such notice (A) shall describe the manner and circumstances of the
proposed transfer in sufficient detail to enable counsel to render the
opinions referred to below, and (B) shall designate counsel for the
holder giving such notice (who may be house counsel for such holder).
The holder giving such notice will submit a copy thereof to the counsel
designated in such notice and the Corporation will promptly submit a copy
thereof to its counsel, and the following provisions shall apply:
(i) If in the opinion of each such counsel the
proposed transfer of such shares of Common Stock may be effected
without registration under the Act, the Corporation will
promptly notify the holder thereof and such holder shall
thereupon be entitled to transfer such shares of Common Stock
in accordance with the terms of the notice delivered by
such holder to the Corporation. Each share of Common Stock
or certificate, if any, issued upon or in connection with such
transfer shall bear the appropriate restrictive legend set forth
in paragraph (a) of this Section 7, unless in the opinion of each
such counsel such legend is no longer required to insure
compliance with the Act. If for any reason counsel for the
Corporation (after having been furnished with the information
required to be furnished by this paragraph (b)) shall fail to
deliver an opinion of the Corporation, or the Corporation shall
fail to notify such holder thereof as aforesaid, within 20 days
after counsel for such holder shall have delivered its opinion to
such holder (with a copy to the Corporation), then for all
purposes of this Agreement the opinion of counsel for the
Corporation shall be deemed to be the same as the opinion of
counsel for such holder.
(ii) If in the opinion of either or both of such
counsel the proposed transfer of such shares of Common Stock
may not be effected without registration under the Act, the
Corporation will promptly so notify the holder thereof and
thereafter such holder shall not be entitled to transfer such
share of Common Stock until receipt of a further notice
from the Corporation under subparagraph (i) above.
(c) Proposed Transfer to Institutions. Notwithstanding the
foregoing, any holder of such share of Common Stock shall be permitted
to transfer any such share of Common Stock to a
limited number of Institutional Investors, provided that;
(i) Each such holder represents in writing that it
is acquiring such shares of Common Stock for investment and not
with a view to the distribution thereof (subject,
however, to any requirement of law that the disposition thereof
shall at all times be within the control of such transferee);
(ii) Each such holder agrees in writing to be bound by
all the restrictions on transfer of such shares of Common Stock
contained in this Section 7; and
(iii) Such holder delivers to the Corporation an opinion
of counsel who shall be satisfactory to counsel for the
Corporation, stating that such transfer may be effected without
registration under the Act.
8. Anti-Dilution Provisions. In the event the Recapitalization or
any other corporation action results in a combination or other
reduction in its outstanding shares of Common Stock into a smaller
number of such shares, then, in such case, the Company will
immediately cause to be issued additional restricted shares to the
Consultant such that the Consultant will be the holder of the same
300,000 shares in number immediately after the reduction as before
the reduction. The certificate representing such additional shares
shall bear the restrictive legend and be subject to the limitations
on transfer specified in Section 7 of this Agreement.
9. Representations and Warranties. The Company represents and
warrants to the Consultants that this Agreement has been duly
authorized, executed and delivered by the Company, and,
assuming the due execution by the Consultants, constitutes a legal,
valid and binding Agreement of the Company enforceable against the
Company in accordance with its terms. The Company represents that, to
the best of its knowledge, the Information will not, when delivered
at any closing of a financing, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein in light of the circumstances under which they
were made not misleading. The Company agrees to advise the Consultants
promptly of the occurrence of any event or any other change prior to
any closing known to it which results in the Information containing
any untrue statement of a material fact or omitting to state any
material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
10. Indemnity. In partial consideration of the services to be
rendered hereunder, the Company agrees to indemnify the Consultants
in accordance with Schedule A attached hereto. Other identified
Corporation(s) will be working with the Consultants on this
transaction and the Consultants will take full responsibility for
the compensation of all Other Corporation(s), except that the
Company agrees to indemnify Other Corporation(s), and their
principals, in accordance with Schedule A attached, hereto, as
though they were parties named therein.
11. Conditions of Engagement. It is understood that the execution
of this Agreement shall not be deemed or construed as obligating the
Consultants or Company to place any financing.
12. Survival of Certain Provisions. The indemnity and contribution
Agreements contained in Schedule A to this Agreement and the
representations and warranties of the Company contained in Section
5 of this Agreement shall remain operative and in full force and
effect regardless of (a) any investigation made by or on behalf of
Consultants, or any Person controlling them, (b) completion of the
financing, (c) the resignation of the Consultants or any termination
of the Consultants services or (d) any termination of
this Agreement, and shall inure to the benefit of any successors,
assigns, heirs and Personal representatives of the Company, the
Consultants, the Indemnified parties and any such Person.
13. Notices. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered
(a) if to the Company, at the addresses set forth above, and (b) if to
Consultants, at the offices of Resource Capital Management, Inc., 000
Xxxx Xxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
14. Counterparts. This Agreement may be executed in two or more
counterparts and the counterparts, when executed, shall constitute a
single, enforceable document. The signature on counterparts may be
transmitted by fax, with documents so transmitted having the same
force and effect as the executed originals.
15. Third Party Beneficiaries. This Agreement has been made and
is made solely for the benefit of the Company, the Consultants and
the other Indemnified Persons referred to in Schedule A hereto and
their respective successors and assigns, and no other Person shall
acquire or have any right under or by virtue of this Agreement.
16. Construction. This Agreement incorporates the entire
understanding of the parties and supersedes all previous Agreements
relating to the subject matter hereof should they exist and shall be
governed by, and construed in accordance with, the laws of the State
of New York, without regard to principles of conflicts of law.
15. Headings. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not part of
this Agreement.
17. Press Announcements. At any time after the consummation or
other public announcement of the financing, and with the approval of
the Company (which approval shall not be unreasonably withheld or
delayed), the Consultants may at their own expense place an
announcement in such newspapers and publication as they may choose,
stating that Consultants have acted as exclusive financial advisor
and sole Restructuring agent to the Company in connection with the
financing contemplated by this Agreement.
18. Amendment. This Agreement may not be modified or amended
except in writing duly executed by the parties hereto.
19. Legal Services. The Consultants when retained will be
recommending and referring legal counsel to do the restructuring.
Further it is understood that the Consultants are not lawyers and our
not providing directly or indirectly any legal service.
RESOURCE CAPITAL MANAGEMENT, INC.
By:________________________
Name:_________________________
Title:___________________________
PARAMACO FINANCIAL GROUP, INC.
By:_____________________________
Xxxxxxx X. Xxxxx, CEO
