Exhibit 10.11
[LOGO OF THE XXXXXX GROUP]
CONSULTING AGREEMENT
This Agreement is effective on February 14, 2008 (the "Effective Date") between
Global Entertainment Corporation (collectively with its subsidiaries and
affiliates, the "Company") and Xxxxxx Capital Corporation ("MCC"), pursuant to
which MCC will furnish to the Company certain services as set forth herein.
1. MCC SERVICES.
MCC will perform the following services for the Company pursuant to this
Agreement:
A. Financial consultation with respect to the Company's funding
requirements and projected associated costs; and
B. Advice and consultation with respect to financial structure and
markets, including (without limitation) advising the Company
regarding, and assisting with the arrangement and structure of private
and public placements of equity and debt financings; and
C. Advice and consultation with respect to potential merger, acquisition,
joint venture, divestiture and other transactions; and
D. Investor relations services; and
E. Preparation of various reports including such reports as; due
diligence review, business operations and financial plan, business
strategy and analysis, financial markets review, business valuation
analysis, fairness opinion, board and executive compensation plan and
analysis and other reports undertaken during the term of this
Agreement that are mutually agreed to with respect to content and
scope (each such report referred to hereinafter as a "Report
Assignment").
It is expressly acknowledged and agreed by the parties hereto that MCC is not
registered with the Securities and Exchange Commission (SEC) as a broker/dealer
or a member of the Financial Industry Regulatory Authority (FINRA). Xxxxxx
Capital Markets, LLC, an affiliate of MCC, is a registered broker/dealer and it
is expressly contemplated that any and all services of the type required under
applicable laws and regulations to be provided by a registered broker/dealer
would be provided to the Company by Xxxxxx Capital Markets, LLC pursuant to a
separate engagement agreement negotiated and entered into by such parties.
It is expressly acknowledged and agreed by the parties hereto that MCC and
employees and affiliates of MCC are independent contractors and are not
employees or officers of the Company.
2. CERTAIN RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In connection with MCC's engagement, the Company will furnish MCC with all
information concerning the Company that MCC reasonably requests and will provide
MCC with access to the Company's officers, directors and controlling
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Global Entertainment Corporation
December 14, 2007
Page 2
shareholders. MCC will have access to the Company's legal and accounting
professionals and, with prior approval from the Company, may utilize its own
outside legal counsel and accounting professionals at the Company's expense. The
Company represents and warrants to MCC that: (a) all such information is and
will be true and accurate in all material respects and does not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading; and (b) any projected financial
information or other forward-looking information which the Company provides to
MCC (including without limitation any information compiled by MCC therefrom)
will be made by the Company in good faith, based on management's best estimates
then available and based on facts and assumptions which the Company believes to
be reasonable. The Company recognizes the necessity of promptly notifying MCC of
all material developments concerning the Company, its business and prospects and
to supply MCC with all such information as may be necessary for MCC to comply
with its own internal procedures as well as any legal or regulatory
requirements. The Company acknowledges and agrees that MCC will be using and
relying upon all information supplied by the Company and its officers, agents
and others and any other publicly available information concerning the Company
without any independent investigation or verification thereof or independent
appraisal by MCC of the Company or its business or assets.
3. CONFIDENTIALITY.
Information provided by the Company to MCC in connection with this Agreement
that is identified by the Company as confidential will be kept confidential and
will only be used by MCC for purposes of its engagement hereunder, except for
information that (i) was in MCC's possession prior to its disclosure by the
Company, (ii) is publicly disclosed other than by MCC in violation of this
Agreement, (iii) is obtained by MCC from a person other than the Company who, to
the knowledge of MCC, is not under a confidentiality obligation to the Company,
(iv) the Company agrees may be disclosed, or (v) is required to be disclosed
under compulsion of law (whether by interrogatory, subpoena, civil investigative
demand or otherwise), by order or act of any court or governmental or regulatory
authority or body or by MCC's independent auditors or accountants. MCC may also
disclose such information to those of its own and its affiliates' respective
officers, directors, employees, auditors and professional advisors who need to
know such information for purposes of performing the services described in this
Agreement.
4. COMPENSATION AND FEES.
For services rendered under this Agreement, MCC shall receive the following
compensation and fees:
A. As compensation for the services set forth in section 1.A. through 1.D
above, the Company shall pay MCC a monthly service fee of $15,000 each
month throughout the term of this Agreement, the first monthly payment
of which is due on the 20th of March, 2008 and continuing on the same
day each month thereafter.
B. The Company will pay MCC a fee with respect to substantive updates of
any previously issued Report, as well as other Report Assignments
undertaken thereafter pursuant to Section 1.E. of this Agreement. The
Company and MCC will negotiate in good faith appropriate compensation
for MCC, which will take into account, among other things, the custom
and practice among consultants and advisors providing similar
services. Payment for each Report Assignment shall be due and payable
on the date such report is presented to the Company.
C. With respect to any other payments for services provided to the
Company by MCC not otherwise covered under A and B above, the Company
and MCC will negotiate in good faith appropriate compensation for MCC,
which will take into account, among other things, the custom and
practice among consultants and advisors providing similar services.
D. Out-of-pocket expenses incurred by MCC in connection with the services
performed hereunder will be payable by the Company upon submission by
MCC of monthly invoices delineating such expense, provided that any
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Global Entertainment Corporation
December 14, 2007
Page 3
expense over $1,000 must be approved by the Company in advance.
Reimbursable travel expenses hereunder shall include first-class air
travel for the Chairman, CEO and President of MCC and coach air travel
for all other MCC travel. All amounts billed shall be paid within
fifteen (15) days following the date invoiced by MCC.
E. All amounts payable under this Agreement are nonrefundable, shall be
paid when due and shall be paid in immediately available funds in U.S.
dollars, without setoff and without deduction for any withholding,
value-added or other similar taxes, charges or fees.
5. RESTRICTED STOCK.
Effective on February 14, 2008, MCC will receive a restricted stock grant
consisting of 6,000 shares of the Company's common stock, which will be fully
vest on the first anniversary of the date of grant and shall contain such other
terms and conditions (including, without limitation, registration rights and
accelerated vesting provisions) as shall generally be applicable to restricted
stock grants made to members of the Company's Board of Directors pursuant to the
Company's equity compensation plans.
6. COMPANY COVENANT RE MCC EMPLOYEES.
The Company recognizes that client service officers and other employees of MCC
are necessary for the continued servicing by MCC of its several clients.
Accordingly, the Company will not, during the term of this Agreement, and for a
period twenty-four (24) month period after its termination, employ any client
service officer, account executive or other employee of MCC in any capacity.
7. ASSIGNMENT.
The benefits of this Agreement shall inure to the respective successors and
permitted assigns of the parties hereto and of the indemnified parties under
such indemnification agreement and their respective successors, permitted
assigns and representatives, and the obligations and liabilities assumed in this
Agreement by the parties hereto shall be binding upon their respective
successors and assigns. This Agreement may not be assigned without the prior
written consent of the non-assigning party.
8. INTEGRATION.
This writing constitutes the full and complete agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements with
respect thereto. This Agreement may not be modified by any method other than
another writing signed by the parties.
9. HEADINGS.
The paragraph headings have been inserted for convenience and shall not be
construed in a manner contrary to the text of this Agreement.
10. ATTORNEY FEES.
In the event of any action or proceeding to enforce the provisions of this
Agreement, the prevailing party shall be entitled to its reasonable attorney
fees, such fees to be set by a judge and not by a jury and to be included in any
judgment entered in such action or proceeding.
Global Entertainment Corporation
December 14, 2007
Page 4
11. INDEMNIFICATION.
Because MCC will be acting for the benefit of the Company in connection with
this engagement, the Company agrees to indemnify MCC and certain other persons,
as set forth in the indemnification provisions attached hereto as Exhibit A, the
provisions of which are incorporated herein in its entirety. The provisions of
this section shall survive any termination of the engagement that is the subject
of this letter.
12. PUBLICITY.
The Company approves the use by MCC of the Company's name and/or logo in
publicity that includes tombstones and advertising related materials used
exclusively by MCC. MCC agrees to obtain prior approval, which approval will not
be unreasonably withheld, for the use of the Company's name or logo in any other
circumstance.
13. EFFECTIVE DATE AND TERM.
This Agreement shall be effective on the Effective Date and shall continue in
effect for a period of twenty-four (24) months thereafter; and provided, that
the expiration of this Agreement shall not relieve the Company of any obligation
to MCC for amounts earned or accrued hereunder through the expiration date.
14. EXCLUSIVITY.
MCC will be the Company's exclusive financial advisor, and the Company covenants
and agrees that it will not engage any other person or entity (other than
affiliates of MCC) to provide services similar to those to be provided by MCC
hereunder without the prior written consent of MCC. Without limiting the
preceding sentence, in no event shall any obligation directly or indirectly
incurred by or on behalf of the Company or any other person or entity for fees
or expenses payable to any other party (including, without limitation, any other
advisor or consultant) reduce, impair or otherwise affect the fees payable to
MCC hereunder.
15. NOTICE.
All notices and other written communications required to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered to the addressee in person or mailed by registered or certified mail,
return receipt requested, to the following addresses:
If to MCM Xxxx X. Xxxxxx
Chairman, President and CEO
Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
If to the Company: Xxxx Xxxxxxxx
President and CEO
Global Entertainment Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Either party may change the address at which notice is to be given by notifying
the other party in writing. Notices shall be deemed delivered upon delivery, if
personally delivered, or, if mailed, three (3) days after deposit in the United
States mail.
Global Entertainment Corporation
December 14, 2007
Page 5
16. APPLICABLE LAW.
The validity and interpretation of this Agreement shall be governed by the laws
of the State of Arizona, without giving effect to the State of Arizona's choice
of law principles, and all actions arising under this Agreement or arising out
of the operative facts represented by services performed pursuant to this
Agreement shall be resolved in the courts of the State of Arizona.
AGREED AND ACCEPTED:
Please confirm that the foregoing correctly sets forth our mutual
understanding by signing and returning the copy of this Agreement provided for
that purpose.
Global Entertainment Corporation Xxxxxx Capital Corporation
Xxxx Xxxxxxxx Xxxx X. Xxxxxx
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Title: President and CEO Title: Chairman, President and CEO
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Date: December 14, 2007 Date: December 14, 2007
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EXHIBIT A
In connection with the engagement, the Company agrees to indemnify and hold
harmless MCC and its affiliates, their respective directors, officers,
controlling persons , if any, agents and employees of MCC or any of MCC's
affiliates (collectively, "Indemnified Persons" and individually, an
"Indemnified Person") from and against any and all actions, claims, suits,
proceedings, liabilities, losses, damages and expenses incurred, joint or
several (collectively, "Claims"), by any Indemnified Person which are related to
or arise from MCC's engagement by the Company, including Claims that relate to
or arise from any actions taken or omitted to be taken (including any untrue or
alleged untrue statements made or any statements omitted or alleged to be
omitted) by the Company or which relate to or arise from securities laws or any
other law or legal theory, and will reimburse MCC and any other Indemnified
Person for all costs and expenses, as they are incurred, in connection with
investigating, preparing for, providing depositions for, testifying in or
defending any such action or claim, formal or informal, investigation, inquiry
or other proceeding, whether or not in connection with pending or threatened
litigation, whether or not MCC or any Indemnified Person is named as a party
thereto and whether or not any liability results therefrom related to or arising
from the foregoing (collectively, "Costs"). The Company will not, however, be
responsible for (a) any amount paid in settlement of Claims without the
Company's consent unless such consent is unreasonably withheld, or (b) any
Claims which are found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have resulted directly and primarily from an
Indemnified Person's gross negligence or willful misconduct.
Promptly after MCC receives notice of the commencement of any action or
other proceeding in respect of which indemnification or reimbursement may be
sought hereunder, MCC will notify the Company thereof; but the omission so to
notify the Company shall not relieve the Company from any obligation hereunder
unless, and only to the extent that, such omission results in the Company's
forfeiture of substantive rights or defenses. If any such action or other
proceeding shall be brought against any Indemnified Person, the Company shall,
upon written notice given reasonably promptly following MCC's notice to the
Company of such action or proceeding, be entitled to assume the defense thereof
at the Company's expense with counsel chosen by the Company and reasonably
satisfactory to such Indemnified Person; provided, however, that any Indemnified
Person may at its own expense retain separate counsel to participate in such
defense. Notwithstanding the foregoing, such Indemnified Person shall have the
right to employ separate counsel at the Company's expense and to control its own
defense of such action or proceeding if, in the reasonable opinion of counsel
retained by the Company, (i) there are or may be legal defenses available to
such Indemnified Person or to other Indemnified Persons that are different from
or additional to those available to the Company, or (ii) a difference of
position or potential difference of position exists between the Company and such
Indemnified Person; which in either case would make it ethically impermissible
for such counsel to represent all potential defendants; provided, however, that
in no event shall the Company be required to pay fees and expenses under this
indemnity for more than one firm of attorneys (in addition to local counsel) in
any jurisdiction in any one legal action or group of related legal actions,
regardless of the number of Indemnified Persons involved or potentially involved
in such action or group of related actions.
The Company agrees that neither MCC nor any other Indemnified Person shall
have any liability to the Company for or in connection with such engagement
except liability for Claims which are found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have resulted directly
and primarily from an Indemnified Person's gross negligence or willful
misconduct. The Company also agrees that the Company will not, without the prior
written consent of MCC, settle or compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which indemnification
may be sought hereunder (whether or not MCC or any Indemnified Person is an
actual or potential party to such Claim). No such settlement, compromise or
consent shall impose any material obligation on MCC or any other Indemnified
Person or contain any admission of culpability on the part of MCC or any
Indemnified Person. Such settlement, compromise or consent shall include an
unconditional release of MCC and each other Indemnified Person from all
liability arising out of such Claim, and the Company shall furnish MCC with a
copy of such settlement reasonably in advance of entering into such settlement.
In order to provide for just and equitable contribution, if a demand for
indemnification or reimbursement for Claims or Costs is made pursuant to these
provisions but is not available for any reason, then the Company, on the one
hand, and MCC, on the other hand, shall contribute to such Claims or Costs for
which such indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to the Company, on
the one hand, and MCC on the other hand, in connection with the transaction or
transactions from which the Claims or Costs in question arose. The relative
benefits received by the Company, on the one hand, and by MCC, on the other
hand, shall be deemed to be in the same proportion as the value (before
deducting expenses) of the consideration paid by or received by the Company or
its stockholders or comparable equity owners, as the case may be, in connection
with the transaction or transactions from which the Claims or Costs in question
arose bears to the total fees actually received by MCC in connection therewith.
If the allocation provided by the foregoing sentence is not permitted by
applicable law, then such allocation shall be based not only on such relative
benefits determined as aforesaid but also on the relative fault of the Company,
on the one hand, and MCC, on the other, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, the parties' relative intents, knowledge,
access to information and, if applicable, whether any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by MCC, and any
other equitable considerations appropriate in the circumstances. Any such
contribution shall be subject to the limitation that in any event MCC's
aggregate contribution to all Claims or Costs for which contribution is
available hereunder shall not exceed the amount of fees actually received by MCC
pursuant to the particular engagement relating to the transaction or
transactions from which the Claims or Costs in question arose.
The foregoing rights to indemnity, reimbursement and contribution shall be
in addition to any rights that MCC and/or any other Indemnified Person may have
at common law or otherwise. The Company hereby consents to personal
jurisdiction, service of process and venue in any court in which any Claim which
is subject hereto is brought against MCC or any other Indemnified Person.
In connection with MCC's engagement of even date herewith, MCC may also be
engaged to act for the Company in one or more additional capacities. The terms
of any such engagement may be embodied in one or more separate written
agreements. These indemnification provisions shall apply to the engagement of
even date herewith, all such other engagements (whether written or oral) and any
modification thereof and shall remain in full force and effect following the
completion or termination of any such engagement.
