EXHIBIT 10.12
BUSINESS CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made and entered into as of
January 3, 2005 by and between Navidec Financial Services, Inc., a Colorado
corporation located at 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ("Client"). and Waterton Financial, LLC a Colorado
limited liability company located at 0000 X. Xxxxxxxxxxxx Xxx, Xxxxxxxxx,
Xxxxxxxx 00000 ("PR Firm").
RECITALS:
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A. Client is a publicly traded company that is engaged in providing strategic
financial consulting services. (the "Business").
B. PR Firm is a strategic financial communications firm focused on the
development and implementation of customized strategies and programs
designed to xxxxxx and enhance corporate awareness within the financial
markets community.
C. Client acknowledges the expertise of PR Firm and desires to avail itself,
for the term of this Agreement, of such expertise, and to compensate PR
Firm in accordance herewith.
NOW, THEREFORE, in consideration of the foregoing recitals and the agreements
and covenants herein set forth, the parties, agreeing to be legally bound,
hereto agree as follows:
1) Retention; Services. Client hereby retains PR Firm as a consultant to
Client, and PR Firm agrees to render consulting services, as defined in
Exhibit A attached hereto, to Client, upon the terms and conditions set
forth in this Agreement. Notwithstanding any other provision of this
Agreement, Client shall have the sole right to approve any arrangements
proposed by PR Firm with regard to the performance of the services PR Firm
is to provide hereunder.
2) Time and Resources Devoted by PR Firm.
a) During the term of this Agreement, PR Firm shall spend such time as
may be reasonably required for the performance of the Services and PR
Firm shall guarantee the dedication of senior account executives to
the performance of the Services.
b) Upon reasonable notice by Client, PR Firm will use reasonable efforts
to accommodate requests by Client to attend and arrange specific
meetings, conferences, and/or other similar formally scheduled events.
c) Upon reasonable notice by Client, PR Firm will use reasonable efforts
to accommodate requests by Client for PR Firm to have completed
specific Services by specifically scheduled and mutually agreed upon
deadlines.
Navidec Financial Service, Inc./Waterton Financial, LLC Agreement
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3) Client Cooperation. Client recognizes and acknowledges that the quality and
accuracy of the Services, and the efficiency and timeliness of their
completion, is significantly dependent on Client's cooperation with PR Firm
as well as Client's available resources. Therefore, upon the reasonable
request of PR Firm, subject to compliance with applicable securities laws,
Client shall provide PR Firm in a reasonably timely manner such information
and resources that may be reasonably obtainable by Client that is/are
necessary for PR Firm to perform the Services completely and accurately in
all material respects. PR Firm shall be entitled to rely on the
completeness, correctness and accuracy of the information provided by
Client to PR Firm in the performance by PR Firm of the Services.
4) Acknowledgement of Publicly Trading Status.
a) PR Firm and Client agree and acknowledge that the public trading
status of Client's common stock necessitates adherence to various
regulations and guidelines provided and enforced by any regulatory
bodies, including the NASD, SEC, NASDAQ or any other stock exchange,
market or trading facility on which its shares are or have been
listed. As such, PR Firm and Client each agrees and acknowledges that
it shall comply at all times with all applicable federal and state
securities laws and adhere to such regulations and guidelines provided
and enforced by any such regulatory bodies.
b) Except as provided for within this Agreement, neither PR Firm, nor any
of its employees, directors, or affiliates shall own, buy, sell,
borrow, lend, transfer, hypothecate, or transact in any way, directly
or indirectly the publicly traded stock of Client during the Term of
this Agreement and for a period of three months thereafter.
c) Neither PR Firm, nor any of its employees, directors, or affiliates
shall discuss with or reveal information concerning this Agreement,
Client or the Services to parties other than i) representatives,
affiliates, and advisors of PR Firm; ii) parties to this Agreement;
iii) parties whom Client has informed the PR Firm are bound by
nondisclosure agreements; iv) professional service providers such as
accountants and counsel with whom Client has informed the PR Firm that
they have a formal professional relationship; and v) appropriate legal
and regulatory persons and/or entities.
Navidec Financial Service, Inc./Waterton Financial, LLC Agreement
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5) Authorized Representatives. Client shall be duly represented by its
President, CEO, CFO or such other person as mutually designated in writing
by both its President and CEO, who are each individually authorized to
commit and legally bind Client and to provide suggestions and
recommendations to PR Firm as needed for PR Firm to provide the Services.
PR Firm shall be duly represented by its President, or other person
designated in writing by the President of PR Firm, who is authorized to
commit and legally bind PR Firm.
6) Compensation. In consideration of the Services agreed to be provided and/or
provided to Client hereunder, Client shall compensate PR Firm in accordance
with this Agreement and as set forth on Exhibit B attached hereto.
7) Additional Expenses
a) Ordinary Operational Expenses of PR Firm. In the performance of the
Services, PR Firm shall incur certain expenses which are considered to
be ordinary internal operational expenses (the "Ordinary Operational
Expenses") and, as such, are to be paid by PR Firm and not passed on
to the Client in any way. The Operational Expenses include those
expenses which are expected to allow for the performance of the
Services, including the following:
i) Facsimile expenses;
ii) Telecommunications expenses;
iii) Printing expenses of general communications;
iv) Leasehold expenses.
b) Extraordinary Expenses of PR Firm. Client shall pay certain reasonable
costs and expenses incurred by PR FIRM, its directors, officers,
employees and agents, in carrying out certain duties and obligations
pursuant to the provisions of this Agreement, excluding Ordinary
Operational Expenses, but including and not limited to the following
costs and expenses (the "Out-of-Pocket Expenses"); provided all costs
and expense items in excess of $500.00 must be approved by Client in
writing prior to PR Firm's incurrence of the same:
i) Travel expenses, including but not limited to
transportation, lodging and food expenses, when such travel
is conducted on behalf of the Company;
ii) Seminars, expositions, money and investment shows;
iii) Radio and television time and print media advertising costs,
when applicable;
iv) Subcontract fees and costs incurred in preparation of
research reports, when applicable;
v) Cost of on-site due diligence meetings, if applicable;
vi) Printing and publication costs of brochures and marketing
materials which are not supplied by the Company;
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vii) Development of a Client corporate web site (independent of
the web site components present on the PR Firm home web
site); and
viii) Printing and publication costs of Company annual reports,
quarterly reports, and/or other shareholder communication
collateral material which is not supplied by the Company.
8) Start Date; Term; Termination.
a) The performance of the Services by PR Firm shall start on January
3, 2005 (the "Start Date").
b) Term. Subject to the further provisions of this Section 8, the
term of this Agreement shall be for the period of twelve months
beginning on the Start Date and continuing until 5:00 PM EST on
January 02, 2006 (the "Term"), unless sooner or later terminated
in accordance with the further provisions of this Section 8. This
Agreement may be extended by the mutual agreement of the parties,
as evidenced by an amendment pursuant to Section 14(a) of this
Agreement.
c) Termination by Client. Effective at any point following the first
ninety (90) days of this Agreement, Client shall have the right
to terminate this Agreement with thirty (30) days prior written
notice for any reason whatsoever or for no reason (the "Early
Termination"). Upon the occurrence of a Early Termination, PR
Firm shall be paid in cash, immediately upon such termination,
that dollar amount equal to all Out-of-Pocket Expenses paid or
incurred by PR Firm pursuant to Section 7(b) of this Agreement to
the date of termination, and Client shall pay PR Firm that dollar
amount equal to unpaid fees up to the termination, pursuant to
Section 6 of this Agreement.
9) PR Firm Status. PR Firm is an independent contractor performing
certain consulting services for Client and is not an employee, agent,
representative, officer, or partner of Client. PR Firm has no power or
authority to act for, represent, or bind Client or any affiliate of
Client in any manner. PR Firm acknowledges and agrees, and it is the
intent of the parties hereto, that, under this Agreement, PR Firm
receive no Client sponsored benefits (except as contemplated in
Sections 6 and 7(b)) from Client, including, but not limited to, paid
vacation, sick leave, medical insurance, and 401(k) or other
retirement plan participation. Nothing contained herein nor any titles
held with Client shall be deemed to create any relationship between
the parties other than that of a principal and independent contractor.
10) Confidentiality; Return of Client Property.
a) "Confidential Information" of a party means and includes, but is
not limited to, all information about that party, including, but
not limited to, hardware, software, screens, specifications,
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designs, plans, drawings, data, prototypes, discoveries,
research, developments, methods, processes, procedures,
improvements, "know-how," trade secrets, compilations, market
research, marketing techniques and plans, business plans and
strategies, customer names and other information related to
customers, price lists, pricing policies and financial
information or other business and/or technical information and
materials, in written, graphic, machine-readable form or in any
other medium. Notwithstanding anything to the contrary contained
in this Agreement, Confidential Information shall not include any
information that: (i) is in the public domain or becomes
generally known to parties outside of this Agreement on a
non-confidential basis, through no wrongful act of the party to
this Agreement having received such information from the
disclosing party; (ii) is lawfully obtained by either party of
this Agreement, as the case may be, from a party outside of this
Agreement without any obligation to maintain the information as
proprietary or confidential; (iii) was known to either party to
this Agreement, as the case may be, prior to its disclosure by
the other party to this Agreement, without any obligation to keep
it confidential as evidenced by tangible records kept in the
ordinary course of business; (iv) is independently developed by
either party to this Agreement, as the case may be, without
reference to any Confidential Information disclosed by the other
party to this Agreement as evidenced by tangible records kept in
the ordinary course of business; (v) is the subject of a written
agreement whereby PR Firm or Client, as the case may be, consents
to the use or disclosure of such Confidential Information by the
other party to this Agreement; or (vi) is required by applicable
law to be disclosed by either Client or PR Firm.
b) PR Firm agrees that at all times during the Term of this
Agreement, PR Firm shall preserve as confidential all
Confidential Information concerning Client, and any actual or
potential financial, strategic or operational partners that has
been disclosed to the PR Firm, and PR Firm shall not, without the
prior written consent of Client, use for PR Firm's own benefit or
purposes, or disclose to any other party such Confidential
Information, except as required by PR Firm's engagement with
Client, or as required by applicable law. These obligations with
respect to confidentiality shall continue for a period one year
after the expiration or termination of this Agreement. The terms
of this paragraph do not impair the right to disclose such
Confidential Information by PR Firm in order to defend PR Firm
from any claim in any court of law once PR Firm gives Client
notice of such intended use.
c) All records, business plans, financial statements, manuals,
memoranda, documents, correspondence, reports, records, charts,
lists and other similar data delivered to or compiled by PR Firm
or by or on behalf of Client or its representatives, which
pertain to the Business of Client shall be and remain the
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property of Client and be subject at all times to its discretion
and control. In the event of the expiration or termination of PR
Firm's engagement hereunder, all such materials pertaining to the
Business of Client which has been obtained by PR Firm shall be
delivered promptly to Client upon written request by Client once
all Compensation and expenses have been paid in accordance with
this Agreement; provided, however, that PR Firm may retain copies
of any such documents and materials which may be reasonably
necessary to maintain business, accounting, and legal records
associated with this Agreement subject to the non-disclosure
provisions of Section 10(b).
11) Notice/Cure. Anything contained in this Agreement to the contrary
notwithstanding, neither party shall have failed to perform any
material obligation or duty under this Agreement unless and until:
(a) Consideration. In the case of a failure to pay any consideration,
such failure shall not have been cured within fifteen (15)
business days after receipt of written notice thereof from the
party demanding payment.
(b) Non-Money. In the case of any other failure to perform any
obligation or duty under this Agreement, such failure shall not
have been cured within fifteen (15) business days after receipt
of written notice from the demanding party describing in
reasonable detail the failure.
12) Indemnification.
a) Client shall indemnify and hold PR Firm and its officers,
directors, employees, agents, PR Firm's affiliates, and
representatives harmless from and against any and all actions,
suits, proceedings, liabilities, losses, damages, judgments,
fines, amounts paid in settlement, losses, costs and expenses,
including, but not limited to, reasonable attorneys' and experts'
fees and court costs, (each, a "Loss"), paid or incurred by PR
Firm and arising out of or in connection with any claim by a
third party relating to any untrue statement of a material fact,
or any omission to state a material fact, based upon information
furnished by Client to PR Firm in connection with the Services or
any other work performed for Client by the PR Firm.
b) PR Firm shall indemnify and hold Client and its officers,
directors, employees, agents, consultants, affiliates, and
representatives harmless from and against any and all Losses,
paid or incurred by Client and arising out of or in connection
with any claim by a third party relating to PR Firm's performance
of the Services or any other work performed for Client by the PR
Firm; provided, however, that notwithstanding the foregoing, in
no event will PR Firm indemnify Client for any Losses arising out
of or in connection with any untrue statement of a material fact,
or any omission to state a material fact, based upon information
furnished by Client to PR Firm in connection with the Services or
any other work performed for Client by the PR Firm.
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13) Representations and Warranties.
a) Client represents and warrants to PR Firm that:
i) Client is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado.
Client is not in breach or violation of, and the execution,
delivery and performance of this Agreement by Client will
not result in a breach or violation of, any of the
provisions of Client's articles of incorporation, as amended
to the date of this Agreement (the "Charter"), by-laws, as
amended to the date of this Agreement (the "By-laws") or any
other contract to which Client is a party that is material
to its business plans or prospects.
ii) Client has the full right, corporate power and authority to
execute and deliver this Agreement and to perform the
transactions contemplated by this Agreement. The execution
and delivery of this Agreement by Client and the performance
by Client of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate
action. This Agreement has been duly executed, acknowledged,
and delivered by Client and is the legal, valid and binding
obligation of Client, enforceable against Client in
accordance with its terms, except to the extent that the
enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or by general
principles of equity.
b) PR Firm represents and warrants to Client that:
i) PR Firm is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Colorado. PR Firm is not in breach or violation of, and the
execution, delivery and performance of this Agreement by PR
Firm will not result in a breach or violation of, any of the
provisions of PR Firm's articles of incorporation or
organization, as amended to the date of this Agreement (the
"Charter") or by-laws or operating agreement, as amended to
the date of this Agreement (the "By-laws").
ii) PR Firm has the full right, corporate power and authority to
execute and deliver this Agreement and to perform the
transactions contemplated by this Agreement. The execution
and delivery of this Agreement by PR Firm and the
performance by PR Firm of the transactions contemplated
hereby have been duly and validly authorized by all
necessary corporate and member action. This Agreement has
been duly executed, acknowledged, and delivered by PR Firm
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and is the legal, valid and binding obligation of PR Firm,
enforceable against PR Firm in accordance with its terms,
except to the extent that the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights
generally or by general principles of equity.
14) Miscellaneous.
a) Amendments. This Agreement may be amended, supplemented or
modified only in a writing signed by the parties hereto.
b) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be delivered
personally, by facsimile or by courier service providing for next
day service, or sent by registered or certified mail, postage
prepaid, and return receipt requested, or electronic mail, if
confirmed by a subsequent written letter to the party at the
address noted below:
If to Client: If to PR Firm:
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Navidec Financial Services, Inc. Waterton Financial, LLC
Attention: Xxxx X. XxXxxxx Attn: Xxx X. Xxxxxxx
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx 0000 X. Xxxxxxxxxxxx Xxx
Xxxxx 000 Xxxxxxxxx, Xxxxxxxx 000000
Xxxxxxxxx Xxxxxxx, XX 00000 Telephone:
Telephone: (000) 000-0000 Facsimile:
Facsimile: (000) 000-0000 Email:
Email: xxxxxxxxxxx@xxxxxxx.xxx
c) Governing Law; Jurisdiction. This Agreement shall be governed by
the laws of the State of Colorado without regard to conflicts of
laws principles, the parties agree to submit to the jurisdiction
of the courts of the State of Colorado for all purposes, and sole
and exclusive venue for any dispute or disagreement arising under
or relating to this agreement shall be in a court sitting in the
City and County of Denver, Colorado.
d) Waiver. Failure or delay on the part of either party hereto to
enforce any right, power, or privilege hereunder shall not be
deemed to constitute a waiver thereof Additionally, a waiver by
either party or a breach of any promise hereof by the other party
shall not operate as or be construed to constitute a waiver of
any subsequent waiver by such other party.
e) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns.
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f) Assignability. Neither party may assign or delegate any or all of
its rights (other than the right to receive payments) or its
duties or obligations hereunder without the consent of the other
party, which consent will not be unreasonably withheld or
delayed; provided, however, that either party may assign this
agreement, without the need to obtain consent of the other party,
to an affiliate of such party or to its successor-in-interest. An
assignee will have all of the rights and obligations of the
assigning party set forth in this Agreement.
g) Attorneys' and Experts' Fees; Remedies. In any action, suit or
proceeding brought to enforce any provision of this Agreement, or
where any provision of this Agreement is validly asserted as a
defense, the prevailing party shall be entitled to recover
reasonable attorneys' and experts' fees and expenses in addition
to any other available remedy. Other than the right to recover
fees in the preceding sentence, in any dispute between the
parties arising out of this Agreement, neither party shall be
liable to the other for any indirect, special, consequential or
incidental damages (including, without limitation, lost profits).
h) No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party
hereof and their respective successors or permitted assigns, and
it is not the intention of the parties to confer third-party
beneficiary rights upon any other person or entity.
i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction.
j) Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect
its construction or interpretation. All words used in this
Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
k) Entire Agreement. This Agreement (including all Exhibits and
Appendices) constitutes the entire agreement among the Parties
and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
1) Currency. All references to currency within this Agreement,
unless otherwise stated, shall mean United States Dollars.
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m) Business Day. For the purposes of this Agreement, a business day
is defined as any calendar day during which the New York Stock
Exchange is scheduled to be officially open for business for any
period of time.
n) Counterparts. This Agreement may be executed in one or more
counterparts, by the parties hereto and any successor in
interest, each of which shall be deemed to be an original and all
of which together shall be deemed to constitute one and the same
agreement and the signature of any party to any counterpart shall
be deemed a signature to, and may be appended to, any other
counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as set forth below.
PR FIRM:
Waterton Financial, LLC
a Colorado limited liability company
Date: March 11, 2005 By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Managing Member
CLIENT:
NAVIDEC FINANCIAL SERVICES, INC
a Colorado corporation
Date: March 11, 2005 By: /s/ Xxxx X. XxXxxxx
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Name: Xxxx X. XxXxxxx
Title: President and Chief Executive Officer
Navidec Financial Service, Inc./Waterton Financial, LLC Agreement
Exhibit A
Exhibit A
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Services Description
PR Firm will use its best efforts in seeking to achieve the following objectives
and service provisions:
A-1) PRIMARY CAMPAIGN OBJECTIVES:
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a) Provide strategic counsel, policy guidance and program execution
leading to sound investor relations' performance and consistent,
credible communications programs.
b) increase general market awareness of Client and promote
understanding and appreciation for the Company's strategic
direction among the retail, wholesale, institutional and
individual investing communities.
c) Promote enhanced and pervasive education of our retail broker and
institutional network.
d) Promote positive awareness of Client among securities and
industry analysts. Research and track analysts' perceptions and
attitudes towards Client and benchmark these measurables against
realization of program objectives.
e) Coordinate all media activity to promote mass awareness of Client
and material events via traditional and new media outlets - both
industry-specific as well as general financial.
e) Assist management with the development of high-impact strategic
approaches to the equity and debt markets that will deliver
enhanced shareholder value and lower Client's cost of capital.
Navidec Financial Service, Inc./Waterton Financial, LLC Agreement
Exhibit B
Exhibit B
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Compensation
B-1) Options. Upon execution of this agreement, Client shall issue to PR
Firm options to purchase 100,000 shares of Navidec Financial Services, Inc.
common stock at an exercise price of $.05 per share exercisable until March 09,
2006 (the "Options"). The options are vested upon issuance and may not be
cancelled even upon early termination.
B-2) Options. Upon execution of this agreement, Client shall transfer to PR
Firm options to purchase 20,000 shares of BPZ Energy Inc.'s common stock at an
exercise price of $2.00 per share exercisable until July 31, 2006 (the
"Options"). The options are vested upon issuance and may not be cancelled even
upon early termination.
B-3) One time Retainer. Client shall pay PR Firm a one time retainer of
$5,000 which is payable upon signing of agreement.
B-4) Monthly Retainer. Upon completion of the $2,000,000 private placement
contemplated by Client regarding its mortgage lending business segment, Client
shall pay PR Firm a monthly retainer of $1,000 per month for a period of not
less than six months. Such monthly retainer payment may be terminated by Client
at any time after the aforementioned six month period.
