EXHIBIT 10.9
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT is made and entered into as of March 6, 2001 by and
between New Visual Entertainment, Inc., a Utah corporation ("Company") and
STRATEGICA SERVICES CORPORATION, a Florida corporation ("Strategica").
WITNESSETH THAT:
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WHEREAS, the Company desires to engage Strategica as a consultant for
advice regarding the Company's financial and capital structure; and
WHEREAS, Strategica is willing to provide such services to the Company
for a fee; and
WHEREAS, the parties hereto desire to enter into this Agreement upon
the terms and conditions hereinafter set forth, and
WHEREAS, the persons signing below are duly authorized to do so on
behalf of Company and its directors and shareholders, as applicable, and this
agreement is binding upon such persons and entities.
NOW, THEREFORE, in consideration of the premises and the agreements and
other consideration contained herein, the sufficiency of which is hereby
expressly acknowledged, the parties hereby agree as follows:
1. SERVICES. Strategica agrees to provide certain financial advice and
services as relates to the Company's financial and capital structure as
requested by the CEO or President of the Company from time to time.
In the context of this Agreement, the terms financial, and consulting
services are defined and understood to include, at this time, to endeavor to
arrange for equity investments or other funding of up to $15 million. Strategica
makes no representation or warranty as to the results of its services or the
success the Company may achieve by reason of the advice provided by Strategica.
During the period provided herein, Strategica will conduct negotiations on the
Company's behalf with prospective investors. The Company is not obligated to
accept any deal negotiated by Strategica.
2. CONSULTING FEES. The Company hereby engages Strategica as its
consultant and shall be responsible for, and shall pay in consideration for such
on-going services, as part of its advisory services, as to any transaction
provided, arranged or introduced by Strategica directly or indirectly, 5% in
cash, of the gross amount of any equity or other funding and 10%, in stock, of
any shares issued, and 10% in warrants of any warrants issued, as and when
issued, by the Company for the equity investment or funding. The fees payable by
the Company to any other financial advisor shall not reduce or otherwise affect
any fee payable hereunder to Strategica. Furthermore, the fee arrangement, both
cash and stock, shall apply to the exercise of any warrants issued as part of
the transaction, as and when exercised.
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3. TERM. The Term of this Agreement shall commence on the date hereof
and continue for a term of 6 months. The Term of this Agreement shall be
automatically extended to accommodate the successful conclusion of any good
faith negotiations pursuant to the financings substantially described or for the
outstanding period of any warrants issued with respect to any transaction. The
provisions of this Paragraph shall survive termination of this agreement.
4. NON-EXCLUSIVE. The consultative and advisory services to be rendered
hereunder by Strategica shall be on a non-exclusive basis. Strategica may render
to the Company similar and/or dissimilar services that may obtain from any other
person, firm or corporation.
5. COSTS AND EXPENSES. The Company shall reimburse Strategica for the
cost of all reasonable and necessary out of pocket expenses incurred by
Strategica in performing its services hereunder within ten (10) days after
billing thereof. Fees and expenses in excess of $1,000 shall not be incurred
prior to the Company's written approval.
6. INDEMNIFICATION. The Company will indemnify and hold harmless,
Strategica, its officers, directors, employees, agents, counsel, and controlling
persons (each and "Indemnified Person") from and against any and all losses,
claims, damages, liabilities, and expenses, joint or several or both (including
all fees of counsel and expenses in connection with the preparation for or
defense of any claim, action or proceeding), caused by or arising out of an
Indemnified Person's action pursuant to this Agreement, except such losses,
claims, damages, liabilities or expenses as are found in a final judgment of a
court of competent jurisdiction to have resulted primarily from an Indemnified
Person's willful misconduct. No Indemnified Person shall have any liability to
the Company as a result of such claims, damages, or expenses except for those,
which a final judgment of a court of competent jurisdiction determines were
incurred as a result of such Indemnified Person's willful misconduct. The
Company will promptly notify an Indemnified Person of the assertion against it
or any other person of a claim or the commencement of any action or proceeding
relating to transactions contemplated by this Agreement. The provisions
contained herein relating to indemnification will survive any termination of
this Agreement.
7. NO PARTNERSHIP, NO AGENCY. Neither party to this Agreement is the
agent, partner, employee or joint venturer of or with the other. Neither party
shall act as any of the above for or on behalf of the other, nor in any manner
assume or create any financial or other obligation on behalf of the other.
8. SEVERABILITY. Nothing in this Agreement shall require the commission
of any act or payment of any compensation which is contrary to any express
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provision of law or contrary to the policy of express law; and if there shall
exist any conflict between any provision of this Agreement and any such law or
policy, the latter shall prevail; and the provision or provisions of this
Agreement as effected shall be curtailed, limited or eliminated to the extent
(but only to the extent) necessary to remove such conflict; and as so modified,
this Agreement shall continue in force and effect.
9. NOTICES. All notices required or given under or in connection with
this Agreement shall be given in writing by addressing the same at the following
addresses:
If to Company: Xxx Xxxxxxxxxx, Xx.
New Visual Entertainment, Inc.
0000 Xxxxxx Xx.
Xxxxx 000
Xxx Xxxxx, XX 00000
000-000-0000 phone
000-000-0000 fax
If to Strategica: Xxxx Xxxxxxxx
Strategica Services Corporation
000 Xxxxxxxx Xxx., Xxx. 0000
Xxxxx, Xxxxxxx 00000
000-000-0000 phone
000-000-0000 fax
or at such other addresses which one party from time to time may give
the other by written notice and by the mailing of the same by registered or
certified mail, return receipt requested, so addressed, postage prepaid, or by
delivery of same, toll prepaid, to a telegraph or cable company, or by delivery
of the same personally.
10. OBLIGATIONS EXPRESSED. This Agreement contains the entire
understanding of the parties and no other representation, promise or agreement,
oral or otherwise shall be of any force and effect. The Company acknowledges
that Xxxxx Winehouse and any of his affiliated entities was introduced to the
Company by Strategica.
11. MISCELLANEOUS PROVISIONS. The instrument sets forth the entire
agreement between the parties hereto and may not be canceled, altered or amended
except by an instrument in writing duly executed by both of the parties hereto.
No waiver of any breach hereof in any one instance shall be deemed to be a
waiver of any term or condition. This Agreement shall be construed and governed
in accordance with the laws of the State of Florida and the parties agree that
proper venue shall be in Miami Dade County, Florida. The parties waive trial by
jury in the event of any dispute.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
day and year above written.
NEW VISUAL ENTERTAINMENT, INC.
By: /s/ Xxx Xxxxxxxxxx, Xx.
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Name: Xxx Xxxxxxxxxx, Xx.
Title: President, CEO
STRATEGICA SERVICES CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman & CEO
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