Exhibit 10.1
GenEx
Financial Services
Company
CONSULTING AGREEMENT
AGREEMENT made this 24th day of October, 1997, between GenEx Capital
Corporation and Beacon Capital Partners (hereinafter referred to as "GECC"),
a corporation organized and existing pursuant to the laws of the State of
Nevada, having a principal place of business located at 000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, and Northern Radio Network &
(subsidiaries), a corporation organized and existing under the laws of the
State of Michigan, having a principal place of business located at 0000 X-00
Xxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Client").
WHEREAS, GECC is engaged in the consulting business of providing business
plans, forecasts, expert advice and consulting services and intermediary
services with respect to the identification of sources of investment capital,
equity and other funding and financing for individuals and business clients;
and
WHEREAS, Client desires to retain GECC for the purpose of preparing, and
reorganizing Northern Radio Network ("NRN") for the purpose of completing an
Offering and assisting the Client in preparing documents, business plans,
financial projections of a suitable nature so as to complete the contemplated
Offering; and identifying a source or sources of investment capital and
funding in connection with Client's business; and
WHEREAS, the parties to wish to reduce their agreement to writing.
NOW THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound,
hereby agree to the following.
I. Recitals: The parties agree that the foregoing recitals are true
and correct and are incorporated herein by this reference.
II. Engagement: The Client hereby engages GECC and GECC hereby accepts
such engagement upon the terms and conditions set forth in this Agreement.
Page 1 GenEx Capital Corp.
000 Xxxxx Xxxxxxxx Xxxxx - Xxxxxxxxx Xxxxx, XX 00000 - Phone: (000) 000-0000
- Fax: (000) 000-0000
A. Reasons for Engagement of GECC: Due to the special skills,
knowledge, abilities, experiences, information, contracts, and other
expertise of GECC, the Client has engaged the services of GECC upon the terms
and conditions set forth in this Agreement.
B. Duties: GECC is engaged by Client to perform work and Render
services in connection with the completing of a Business Plan and the writing
and filing of such documents needed to complete best efforts, 505 D Private
Placement or other funding mechanism in the gross amount up to $5,000,000.
Included in the duties will be the identification for Client a potential
source or sources of investment capital and funding in connection with
Client's business, as more specifically set forth and explained in Exhibit A.
"The Services Performed", which is attached hereto and incorporated herein
by this reference (hereinafter referred to as the "Services").
C. Extent of Duties: In addition to providing the particular
services mentioned above, GECC agrees to use its best efforts to identify a
potential source or sources of financing for Client. All responsibilities for
negotiating, structuring and accomplishing the specific terms of the
financing, as well as all other matters regarding the financing other than
the indemnification of a potential source or sources of the financing, will be
the exclusive responsibility of the Client and the party providing the
financing. GECC's responsibility will be to act as a consultant only to the
Client in all aspects of the financing and the contemplated Private Placement.
D. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and effect for a
term of one year from the date hereof, and may be renewed for successive
periods of 12 months thereafter by the mutual written agreement of the
parties hereto made at least ten (10) days prior to the expiration of such
term.
E. Fee Structure:
1. Time is of the Essence: Time is of the essence with respect
to the parties' respective obligations under this Agreement.
2. Amount of Fee: Client hereby agrees to pay GECC the fee
described in Exhibit B, "Fee Structure", which is attached
hereto and incorporated herein by this reference (hereinafter
referred to as the "Fee") with the exception of fees to be
paid "at closing", Client shall pay all fees according to
the timetable set forth on Exhibit B.
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3. Timing of Payment of Fee: Any and all fees due to GECC under
this Agreement shall be paid as specified in the Fee
Agreement and shall be paid at the time specified in the
Agreement. In the event of Client's inability to pay all fees
as specified, GECC retains the right to cancel this Agreement
and retain all fees previously paid as liquidated damages.
Payment shall be made in U.S. Dollars except where payment is
made in such other form as may previously be agreed to in
writing by GECC.
4. For the purposes of this Agreement, the term "closing" shall
refer to the date upon which the Client receives, or becomes
legally entitled to receive, the Financing from a source
identified for Client by GECC.
F. Independent Contractors: In all matters relating to this
Agreement and otherwise, the parties hereto shall be and act as independent
contractors, neither shall be the employee or agent of the other, and each
shall assume any and all liabilities for its own acts. As a result of its
independent contractor status, GECC shall be responsible for any and all
income taxes of federal and/or state authorities, FICA contributions, and any
and all other employment related taxes or assessments which may be required of
GECC under any federal or state statute, regulation or administrative ruling.
Neither party shall have any authority to create any obligations, express or
implied, on behalf of the other party and neither party shall have any
authority to represent the other party as an employee or in any capacity other
than as herein provided.
III. Non-Circumvention Requirement: Client agrees that it will not,
directly or indirectly, interfere with, circumvent or attempt to circumvent,
avoid, by-pass, violate or obviate GECC's interest in the Financing, or the
interest or relationship between GECC and potential sources of the Financing
identified to the Client by GECC, or producers, sellers, buyers brokers,
dealers, consultants, financial institutions, technology owners, or
manufacturers, to change, increase or avoid, directly or indirectly, in whole
or in part, payment of established or to be established business
relationships with manufacturers or technology owners, with intermediaries,
entrepreneurs, legal counsel, or initiate buying or selling relationships, or
transactional relationships that by-pass GECC with any corporation, producer,
technology owner, partnership, consultants, individuals or other parties
revealed or introduced by GECC to Client in connection with the Financing or
any other ongoing or future transaction or project of like nature. In other
words, not only does Client agree not to circumvent GECC with respect to the
Financing which is the subject of this Agreement, but Client also agrees that
it will not in the future seek any additional or other financing or funding
from any source identified for Client by GECC without engaging GECC as
consultant to provide intermediary services with
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respect to the identification of said source or sources of said future
financing or funding and paying GECC its regular and customary fee for doing
so.
IV. Nondisclosure/Confidentiality Requirement: Client agrees that it
will Not at any time, whether during the term of this Agreement or
thereafter, use or disclose or otherwise reveal, directly or indirectly, to
any third party, any confidential information provided by GECC to Client,
particularly including, but not limited to, any contract terms, product
information, or manufacturing method or process, design, process, trade
secret, prices, fees, financing arrangements, schedules and other information
concerning the identity of a potential source or sources of the Financing, or
any confidential record, data or information of GECC; or any customer lists,
contracts or other information; or identity of any supplier, sources of
customers of any other contacts; or any business opportunities for new or
developing business or procuring the Financing, whether or not the Financing
is received from said source; and any contact or information identified for
Client by GECC in connection with seeking the Financing, sellers, producers,
buyers, leaders, borrowers, brokers, lender, distributors, manufacturers,
technology owners, or their representatives, employees and agents; and
specific individual names, addresses, principals, or telex/fax/telephone
numbers and other contact information; references, product or technology
information, and all other information that becomes known to Client through
its dealings with GECC, without the advance specific written consent of GECC;
except that nothing herein shall be construed to prohibit (i) using or
disclosing such information as shall become public knowledge other than by or
as a result of disclosure by a person not having a right to make such
disclosure, and (ii) complying with legal process.
V. Non-compete Requirement:
A. Requirement: Client agrees that it will not, during the term of
this Agreement and for a period of five (5) years thereafter, (i) engage in
any business, whether on its own behalf or for another, whether as officer,
director, consultant, partner, principal, agent, employee, advisor or in any
manner, which is engaged in the business of providing intermediary services
with respect to the identification of sources of investment capital, equity
and other funding and financing for individuals and business clients in
competition with GECC in the United States, or (ii) solicit any past, present
or future clients of GECC, or any prospective client or clients to whom GECC
submitted bids or proposals or with whom GECC conducted negotiations for the
sale of any such consulting services.
B. Duration and Extent of Non-compete Requirement is Reasonable:
The parties hereby agree that the Non-compete Requirement under this
Agreement shall commence on the date of this Agreement and continue for a
duration of five (5) years from the date of this Agreement. The parties
hereby expressly agree that the duration and extent of this Non-compete
Requirement is reasonable and acceptable to them in all respects.
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VI. Termination: This Agreement may be terminated by the written notice
of either party hereto forwarded to the other party hereto. This Agreement
shall be binding on the parties hereto for the Term provided herein, unless
terminated as provided herein.
VII. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the parties themselves, shall
be settled by binding arbitration in Deerfield Beach, Florida in accordance
with the rules of the American Arbitration Association and judgment upon the
award may be entered in any court having jurisdiction thereof. Nothing,
however, contained herein shall limit GECC's rights to injunctive relief as
set out in Paragraph VII of this Agreement. The prevailing party in any
litigation, arbitration or mediation relating to collection of fees, or any
other matter under this Agreement, shall be entitled to recover all its
costs, if any, including without limitation reasonable attorney's fees, from
the other party for all matters, including, but not limited to, appeals.
VIII. Injunctive Relief: Client agrees that its violation or threatened
violation of any of the provisions of this Agreement shall cause immediate
and irreparable harm to GECC, and, in such event, an injunction restraining
Client from such violation may be entered against Client in addition to any
other relief available to GECC.
IX. Representations and Warranties: Client represents, warrants,
covenants and agrees that Client has a right to enter into this Agreement;
that Client is not a party to any agreement or understanding whether or not
written which would prohibit Client's performance of its obligations
hereunder any proprietary information of any other party which Client is
legally prohibited from using. A breach of this Paragraph IX shall be ground
for immediate termination of this Agreement.
X. Indemnification and Hold Harmless Clause: Each party to this
Agreement agrees to indemnify and hold harmless the other party against any
losses, claims, liabilities, damages and the like, joint or several, to which
the other directly or indirectly may become subject to in connection with and
arising out of the services which are the subject of this Agreement, except
as may be the direct cause of the gross negligence or willful misconduct of
the party seeking indemnification.
XI. Notice: Any notice given or required to be given under this
Agreement shall be in writing and service thereof shall be sufficient if sent
be hand or by telex or telegram, facsimile transmission or other similar
means of communication if confirmed by mail, or by certified mail,
return-receipt requested, with postage prepaid, directly to the parties'
respective addresses herein above set forth. Each party may, from time to
time, by like written notice, designate a different address to which notice
should thereafter be sent. Any notice shall be deemed to have been given when
placed in the United States mail.
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XIL. Survival: The covenants contained in this Agreement shall survive
the termination of this Consulting Agreement, for whatever reason, and shall
be binding on the parties.
XIII. Binding Effect: The terms of the Agreement shall be binding upon
the respective parties hereto, their heirs, their owners, co-owners,
partners, associates, employers, affiliates, subsidiaries, parent companies,
nominees, representatives, employees, agents, clients, consultants and
successors and assigns.
XIV. Assignment: This Agreement and the rights and obligations
hereunder may not be assigned or delegated by either party without the prior
consent of the other party.
XV. Choice of Law: This Agreement is made in the State of Florida,
and all questions related to the execution, construction, validity,
interpretation and performance of this Agreement and to all other issues or
claims arising hereunder, shall be governed and controlled by the laws of the
State of Florida.
XVI. Venue: Broward County, Florida, shall be proper venue for any and
all litigation and other proceeds involving this Agreement.
XVIL. Conterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of
this Agreement.
XVIII. Severability: In the event that any term, covenant, or condition
of this Agreement or the application thereof to any party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, covenant or condition to parties
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby; and each term, covenant, or
condition of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law.
XIX. Modification: No amendment, modification, or waiver of this
Agreement or any provision hereof shall be valid unless in writing duly
signed by the parties hereto, which writing specifically refers to this
Agreement and states that it is an amendment, modification, or waiver.
XX. Entire Agreement: This Agreement represents the entire agreement
between the parties to this Agreement concerning its subject matter, any any
and all prior representatives and agreements with respect to such subject
matter, if any, are merged herein and are superseded by this Agreement.
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XXL. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of
this Agreement. Whenever used herein, the singular shall include the plural,
the plural shall include the singular, and pronouns shall be read as
masculine, feminine, or neuter as the context requires.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year first above written.
GenEx Capital Corporation
Date: 10/22/97 By: /s/ Xxxx X. Xxxxxxx
------------------ ----------------------------
Xxxx X. Xxxxxxx, Chairman/CEO
Northern Radio Network, Inc.
Date: 10/31/97 By: /s/ Xxxxxx Xxxxxxx
------------------ ----------------------------
Xx. Xxxxxx Xxxxxxx, Chairman/CEO
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Exhibit A
The Services Performed
GRCC will provide services that will include.
1. Consulting
2. Legal
3. Filing of all documents relating to the Offering
4. Complete Business Plan
5. Forecasting and Projection consulting services. Client will
provide accounting professionals to do the actual schedules,
forecasting data and spread sheets necessary to complete the
formal SEC required financial documents.
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Exhibit B
Fee Structure
1. For providing business Plan and 505D documents............... $25,000.00
2. For providing such other legal services as may be necessary
to complete, Review, file (SEC) and "Blue Sky" (includes 10
states and filing fees)...................................... $35,000.00
3. A fee equal to 6% of the gross amounts of all money raised.
This fee will be paid to Beacon Capital Partners on the Event
of the closing of the contemplated Offering... To be calculated at closing.
Schedule of fee Payments
1. On signing this Agreement............................... $10,000.00
2. On completing Business Plan............................. $10,000.00
3. On Completing 505D (prior to filing).................... $ 5,000.00
4. On Filing with SEC (Beginning Offering.................. $10,000.00
5. When breaking escrow.................................... $25,000.00
Total $60,0000.00 plus approved expenses
6. At closing--6% Fee to Beacon Capital Partners to be calculated at
closing.
*Warrants and stock options may be granted and accepted in lieu of Item #6,
** Financial Advisory Contract to be negotiated at closing at the discretion
of NRN
***All fees to be reimbursed from the proceeds of the offering
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