Exhibit 6(ii)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective this 19th day
of March, 1999 by and between Xxxxx Xxxxxxx ("Consultant"), and Genesis Capital
Corporation of Nevada, a Nevada Corporation, ("Client").
PREMISES
WHEREAS, Client wishes to obtain the consulting services of Consultant.
WHEREAS, Consultant is in the business of providing consulting and
other services to firms, who desire to make complex financial and
structural changes to their firms.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which is expressly
acknowledged, Client and Consultant agree as follows:
I. ENGAGEMENT OF CONSULTANT - Client hereby retains Consultant to serve
Client in the following areas:
A. Consulting with Client in the requirements of becoming a non-
reporting public entity;
B. Consulting with and assisting Client in the techniques and prep-
aration of documents for raising capital and acquiring financing, loans
and other sources of capital; and
C. Use his best efforts in the location or identification of various
assets for potential acquisition and possible entities for merger and
acquisition possibilities.
All of the foregoing services collectively are referred to herein as
the "Consulting Services."
II. TERM - This Agreement shall have a term of one (1) year commencing on
the date of this Agreement ("Initial Term"). In the event that Client
desires to engage Consultant further this Agreement shall continue on a
month to month basis after the expiration of the Initial Term for the
additional terms provided in an Addendum to this Agreement executed by
both parties, should the parties be so interested at any particular
point.
III. COMPENSATION - In consideration of the Consulting Services contemplated
herein, Consultant shall be issued the following compensation, but only
upon the consummation of a merger or acquisition by the Client:
Client shall transfer to Consultant 35,000 shares of Client's common
stock, which stock is acknowledged to bear a restrictive legend
pursuant to the provisions of Rule 144.
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IV. EXPENSES - Client shall be responsible for all expenses associated with
completing the Consulting Services contemplated herein. The Expenses
include but are not limited to the following:
A. All fees associated with the filing of any forms required by state
or federal agencies to bring about the intent of this Agreement;
B. All long distance telephone and facsimile costs incurred by
Consultant and all copying, mail and Federal Express or other express
delivery costs incurred by Consultant and all other expenses reasonably
incurred by Consultant in rendering the Consulting Services
contemplated by this Agreement.
C. Any and all fees associated with obtaining or providing Consultant
with audited financial statements of Client. Consultant will not
perform any accounting services related to Client without obtaining
audited financial statements (NOTE: The cost of this item must be paid
for directly by Client, and does not come out of the Escrow Account
reserved for expenses.)
D. Any and all travel, airfare and hotel expenses which Consultant may
reasonably incur in relation to the performance of the Consulting
Services contemplated herein. While circumstances may change, the
parties do not anticipate any travel during this engagement.
V. BEST EFFORTS - Consultant agrees that it will at all times faithfully
and to the best of its experience, ability and talents, perform all the
duties that may be required of and from Consultant pursuant to the
terms of this Agreement. Consultant does not guarantee that its efforts
will have any impact on Client's business or that any subsequent
financial improvement will result from Consultant's efforts.
VI. CLIENT'S REPRESENTATIONS - Client represents, warrants and covenants to
Consultant that each of the following are true and complete as of the
date of this Agreement:
A. Entity Existence. Client is a corporation or other legal entity duly
organized, validly existing, and in good standing under the laws of the
state of their formation, with full power and authority and all
necessary governmental authorizations to own, lease and operate
property and carry on their business as it is now being conducted.
Client is duly qualified to do business in and is in good standing in
every jurisdiction in which the nature of its business or the property
owned or leased by it makes such qualifications necessary.
B. Involvement in Proceedings or Investigations by Securities
Regulatory Authorities .Client or its officers and 10% or more owners,
and any entity which Client or its affiliates or officers control, has
not been previously involved in any litigation, investigations or
proceedings with the United States Securities and Exchange Commission
or any other State or Foreign Securities Regulatory organization, and
is not presently indicted and/or was never convicted of fraud or any
similar crime involving any allegation of dishonesty or theft, nor
found guilty or is currently involved in legal proceedings of such
conduct in a civil context, other than as disclosed and with full and
complete details attached hereto.
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C. Disclosure Documents. Client has or will cause to be delivered,
concurrent with the execution of this Agreement, copies of its entity
records as requested to effectuate any transaction contemplated herein.
Documents which Client agrees to provide to Consultant shall include
but not be limited to audited financial statements for the past three
years of Client's operations or as long as Client has been in
operation, whichever is less, which have been audited by a United
States Securities and Exchange Commission peer approved financial
auditor, any entity resolutions and any and all other documents which
may in any way relate to the transactions contemplated in this
Agreement.
D. Client's Authority for Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by the Client. This Agreement has been duly
executed and delivered by Client and constitutes the valid and legally
binding obligation of Client enforceable in accordance with its terms,
except to the extent that enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditor's rights generally. To the best of Client's
knowledge, after due inquiry, the execution and delivery of this
agreement and the consummation of the transactions contemplated herein
will not conflict with any mortgage, indenture, lease, contract,
commitment, agreement, or other instrument, permit, concession, grant,
franchise, license, judgement, order, decree, statute, law, ordinance,
rule or regulation applicable to Client or any of its properties or
assets.
E. Consents and Authorizations. Any consent, approval, order or
authorization of, or registration, declaration, compliance with or
filing with any governmental or regulatory authority required in
connection with the execution and delivery of this Agreement to permit
the consummation by Client and Consultant of the transactions
contemplated herein shall be accomplished in a timely manner and in
accordance with federal and/or state laws where applicable.
F. Minute Books. The minute books of Client contain full and complete
minutes of all meetings (or written consents in lieu thereof).
G. Nature of Representations. No representation or warranty made by
Client in this Agreement, nor any document or information furnished or
to be furnished by Client to the Consultant in connection with this
Agreement, contains or will contain any untrue statement of material
fact, or omits or will omit to state any material fact necessary to
make the statements contained therein not misleading, or omits to state
any material fact relevant to the transactions contemplated by this
Agreement.
H. Independent Legal and Financial Advice. Consultant is not a law firm
nor an accounting firm. Client represent that it has not nor will it
rely upon any legal or financial representation made by Consultant, and
that Client has and will continue to seek the independent advice of
legal and financial counsel regarding all material aspects of the
transactions contemplated by this Agreement, including the review of
all documents provided by Consultant to Client and all opportunities
Consultant introduces to Client. Client acknowledge that any attorneys,
accountants and other advisors employed by Consultant represent the
interests of Consultant solely, and that no representation or warranty
has been given to Client by Consultant as to any legal, tax,
accounting, financial or other aspect of the transactions contemplated
by this Agreement.
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VII. NON-CIRCUMVENTION- Client agrees to not enter into any other agreements
to provide services for which Consultant has provided services, or
enter into any transaction involving a business opportunity or asset
introduced to Client by Consultant, without compensating Consultant
pursuant to this Agreement. Neither will Client terminate this
Agreement solely as a means to avoid paying Consultant compensation
earned or to be earned, or in any other was attempt to circumvent
Consultant.
VIII. TERMINATION OF AGREEMENT BY CONSULTANT - Consultant may terminate this
Agreement if any of the following occurs:
A. Payments due under this Agreement are not timely made.
B. In the judgment of Consultant, Client's actions or conduct make it
unreasonable for Consultant to perform under this Agreement. Such acts
include, and are or may be perceived as being in the nature of
dishonesty, illegal activities, activities harmful to the reputation of
the Consultant, and activities which may create civil or criminal
liability for the Consultant.
C. Consultant makes a bona fide decision to terminate its business and
liquidate its assets.
D. Client misrepresents its corporate or other entity standing, power
to enter and bind itself to this Agreement, misrepresentation of its
guarantees as indicated below, or any other concealed or misrepresented
material fact which would decrease the binding effect of this Agreement
on Client.
E. If after conduct of a due diligence investigation, Consultant
concludes that an intended offering, or other action contemplated under
this Agreement (the "Transaction"), is not viable, Consultant may give
ten (10) days written notice to Client stating in particular why the
Transaction is not viable, and if after ten (10) days of receipt of the
written notice, Client insists that Consultant continue performance on
the Transaction, Consultant may then terminate the Agreement, returning
all monies received after deductions as indicated in Subsection "H"
below.
F. An unanticipated material change in federal or state laws and/or
regulations makes continued performance under this Agreement
unreasonable.
G. Breach of any provision of this Agreement, and in particular, but
not limited to, not providing audited financial statements in a timely
manner.
H. Notwithstanding the termination of this Agreement, Consultant shall
be entitled to receipt of the charges for the work actually performed
up to the time of termination at its normal consulting rates.
Consultant shall also be entitled to reimbursement of any expenses
incurred, up to the time of termination of this Agreement along with
any expenses incurred as a result of the termination.
IX. TERMINATION OF AGREEMENT BY CLIENT - Client may terminate this
Agreement under the following conditions:
A. Consultant fails to follow Client's reasonable instructions. Client
must advise Consultant that his actions or inactions are unacceptable
and give Consultant thirty (30) days in which to comply.
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If Consultant fails to comply within thirty (30) days, Consultant may
be terminated hereunder by Client's service of notice of termination to
Consultant.
B. If, in the judgment of the Board of Directors of Client,
Consultant's actions or conduct would make it unreasonable to require
Client to retain Consultant. Such acts include and are in the nature
of, dishonesty, illegal activities, activities harmful to the
reputation of the Client and activities which create civil or criminal
liability for the Client.
C. Notwithstanding the termination of this Agreement, Consultant shall
be entitled to receipt of all compensation owed pursuant to Section "H"
of Article VIII above up to the time of termination of this Agreement,
for work actually performed. Consultant shall also be entitled to
reimbursement of any expenses incurred, up to the time of termination
of this Agreement, along with any expenses incurred as a result of the
termination.
X. UTILIZATION OF ATTORNEYS - Consultant may utilize attorneys to assist
him in preparing the documentation required to effectuate the
transactions contemplated by this Agreement. The attorneys utilized by
Consultant represent only Consultant, and Consultant's interest in
providing consulting services and do not in an way represent the
interests of any party to this Agreement other than Consultant's.
Client are advised, and have represented, that they will seek
independent legal counsel to review all documentation provided to it by
Consultant.
XI. CONSULTANT IS NOT A BROKER-DEALER - Consultant has fully disclosed to
Client that he is not a broker-dealer and does not have or hold a
license to act as such. None of the activities of consultant are
intended to provide the services of a broker-dealer to the Client and
Client has been informed that a broker-dealer will need to be engaged
to perform any such services. Client has full and free discretion in
the selection of a broker-dealer.
XII. NONDISCLOSURE OF CONFIDENTIAL INFORMATION - In consideration for the
Client entering into this Agreement, Consultant agrees that the
following items used in the Client's business are secret, confidential,
unique, and valuable, and disclosure of any of the items to anyone
other than Consultant's officers, agents, or authorized employees may
cause Client irreparable injury.
A. Non-public financial information, accounting information, plans of
operations, possible public offerings public announcement.
B. Customer lists, call lists, and other confidential customer data;
C. Memoranda, notes or records concerning the technical and creative
processes conducted by Client.
D. Sketches, plans, drawings and other confidential research and
development data or;
E. Manufacturing processes, chemical formulae, and the composition of
Client's products.
Consultant shall have no liability to the Client with respect to the
use or disclosure to others not party to this Agreement, of such
information as Consultant can establish to:
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A. have been publicly known;
B. have become known, without fault on the part of Consultant,
subsequent to disclosure by Client of such information to Consultant;
C. have been otherwise known by Consultant prior to communication by
the Client to Consultant of such information, or
D. have been received by Consultant at any time from a source other
than Client lawfully having possession of such information.
XIII. PLACE OF SERVICES - The Consulting Services contemplated to be
performed by Consultant will be performed through Consultant's offices;
however, it is understood and expected that Consultant may make
contacts with persons and entities in any other place deemed
appropriate by Consultant.
XIV. NONEXCLUSIVE SERVICES - Client acknowledge that Consultant is currently
providing services of the same or similar nature to other parties and
Client agree that Consultant is not prevented or barred from rendering
services of the same nature or a similar nature to any other individual
or entity.
XV. ALL PRIOR AGREEMENTS TERMINATED - This Agreement comprises the entire
agreement and understanding between the parties hereto at the date of
this Agreement as to the subject matter hereof and supersedes and
replaces all proposals, prior negotiations and agreements, whether oral
or written, between the parties hereto in connection with the subject
matter hereof, with the sole exception of an Escrow Agreement to be
executed on the same date. None of the parties hereto shall be bound by
any conditions, definitions, warranties or representations with respect
to the subject matter of this Agreement other than as expressly
provided in this Agreement unless the parties hereto subsequently agree
to vary this Agreement in writing, duly signed by authorized
representatives of the parties hereto.
XVI. CONSULTANT IS NOT AN AGENT OR EMPLOYEE OF CLIENT - Consultant's
obligations under this agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or
bind Client. For the purposes of this Agreement, Consultant is an
independent contractor. All final decisions with respect to acts of
Client or their affiliates, whether or not made pursuant to or in
reliance on information or advice furnished by Consultant hereunder,
shall be those of Client or such affiliates, and Consultant, its
employees or agents shall under no circumstances be liable for any
expense incurred or loss suffered by Client as a consequence of such
action or decisions.
XVII. CONTINUE OPERATIONS IN SUBSTANTIALLY SAME MANNER - Client will not
transfer, sell or hypothecate, assign or distribute any significant
portion of its assets currently in its possession except upon written
notice to the parties to this Agreement, and Client agrees to continue
operations in substantially the same manner as it is presently
functioning, until this agreement has been consummated.
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XVIII. MISCELLANEOUS.
A. Authority. The execution and performance of this Agreement have been
duly authorized by all requisite corporate action. This Agreement
constitutes a valid and binding obligation of the parties hereto.
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. Waiver. No term of this Agreement shall be considered waived and no
breach excused by either party unless made in writing. No consent
waiver or excuse by either party, express or implied shall constitute a
subsequent consent, waiver or excuse.
D. Assignment
1. The rights and obligations of both parties under this Agreement
shall inure to the benefit of and shall be binding upon its successors
and assigns. There shall be no rights of transfer or assignment of this
Agreement by either party except with the prior written consent of the
other party.
2. Nothing in this Agreement, expressed or implied, is intended to
confer upon any person other than the parties and their successors, any
rights or remedies under this Agreement.
E. 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 prepaid provided that the communication is
addressed:
In the Case of Consultant to:
Xxxxx Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
In the Case of Client to:
Genesis Capital Corporation of Nevada
00000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address designated by Client in writing to
receive notice.
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F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any heading and
the text of this Agreement, the text shall control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties with
respect to the transaction contemplated by the Agreement. It may be
executed in any number of counterparts but the aggregate of the
counterparts together constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of
the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or un-enforceability shall not affect any other
provisions of this Agreement, but this Agreement shall be constructed
as if it never contained any such invalid, illegal or unenforceable
provisions.
I. Controlling Law. The validity, interpretation, and performance of
this Agreement shall be governed by the laws of the State of Texas,
without regard to its law on the conflict of laws. Any dispute arising
out of this Agreement shall be brought in a court of competent
jurisdiction in the State of Texas. The parties exclude any and all
statutes, law and treaties which would allow or require any dispute to
be decided in another forum or by other rules of decision than provided
in this Agreement.
J. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relict, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to
recover actual attorney's fees court costs, and other costs incurred in
proceeding with the action from the other party. The attorney's fees,
court costs or other costs, may be ordered by the court in its decision
of any action described in this paragraph or may be enforced in a
separate action brought for determining attorneys fees, court costs, or
other costs. Should either party be represented by in-house counsel all
parties agree that party may recover attorney's fees incurred by that
in-house counsel in an amount equal to that attorney's normal fees for
similar matters, or, should that attorney not normally charge a fee, by
the prevailing rate charged by attorneys with similar background in
that legal community.
K. Time is of the Essence. Time is of the essence of this Agreement and
of each and every provision hereof
L. Mutual Cooperation The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as
may be necessary or convenient to effect the transactions described
herein.
M. Indemnification. Client and Consultant agree to indemnify, hold
harmless and, at the party seeking indemnification's sole option,
defend the other from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties, court fees, and attorney's fees and expenses
asserted against or imposed or incurred by either party by reason of or
resulting from a breach of any representation, warranty, covenant
condition or agreement of the other party to this Agreement. Neither
party shall be responsible to the other party' for any consequential or
punitive damages.
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N. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties
hereto and their successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically states such
intent.
O. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the other
party, the party who receives the transmission may rely upon the
electronic facsimile as a signed original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first written above.
Xxxxx Xxxxxxx
/s/
Genesis Capital Corporation of Nevada
/s/
Xxxxxxxx X. Xxxxx, President
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