EXHIBIT 6.3
Exhibit 6.3 Amended Consulting Agreement between the Registrant and Madison
Venture Capital II, Inc.
AMENDED CONSULTING AGREEMENT
AMENDED CONSULTING AGREEMENT made as of October 1, 1998, by and between
Madison Venture Capital II, Inc., a New York corporation with offices at 000
Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to
as "Consultant") and Adirondack Pure Springs MT. Water Co., Inc., a New York
corporation with offices at 0000 Xxxxxxx Xxxxxx - Xxxxx 000, Xxxxxx Xxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Company").
WHEREAS, the Company and the Consultant entered into a Consulting
Agreement, dated as of July 15, 1998 (the "Consulting Agreement"); and
WHEREAS, the Company and the Consultant both desire to amend the
Consulting Agreement to reflect additional work done by the Consultant beyond
the scope of work originally contemplated by the Company and the Consultant; and
WHEREAS, the Company desires to obtain the continued benefit of the
services of Consultant to provide the services hereinafter set forth during a
five year period commencing October 1, 1998 and ending September 30, 2003 at the
modified rate of compensation set forth herein; and
WHEREAS, Consultant desires to render such services to the Company;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and the acts herein described, it is agreed between the parties
as follows:
1. The Company hereby engages and retains Consultant and Consultant
hereby agrees to render services and advice to the Company, for a five (5) year
period commencing October 1, 1998 and ending September 30, 2003.
2. The services to be rendered by Consultant shall consist of providing
one of its principals to serve on the Board of Directors of the Company to give
advice and opinions to the Company concerning, but not limited to, consulting
with management concerning the development of the business of the Company and
general business advice. Consultant may also seek and evaluate acquisition
candidates for the Company. Consultant shall have the sole discretion as to the
form, manner and place in which said advice shall be given and the amount of
time to be devoted to serve under this Agreement. Except as provided
hereinafter, an oral opinion by Consultant to the Company shall be considered
sufficient compliance with the requirements of this paragraph. Consultant shall
devote to the Company only such time as it may deem necessary, and when
reasonably requested by the Company, and shall not by this
agreement be prevented or barred from rendering services of the same or similar
nature, as herein described, or services of any nature whatsoever for or on
behalf of persons, firms or corporations other than the Company. The Company
recognizes the Consultant provides services to other clients. The Company
acknowledges that it has already received substantial advice and services from
the Consultant and its beneficial owners.
3. The Company shall compensate the Consultant as follows:
(i) The payment of a fee of $2,000 by check on the first day of each
month during the term of this Agreement; provided, however, that at such time as
the Company's net worth, as reflected on its year end or interim balance sheet
equals or exceeds $4,000,000, the compensation payable hereunder shall be
increased to $4,000 per month and remain at such rate for the balance of the
term;
(ii) In connection with any Merger or other Acquisition where the
acquired company was introduced to the Company by the Consultant payment, in
cash, upon the closing of the transaction (unless the Consultant and the Company
shall mutually agree to a payment other than in cash) based upon the value of
the transaction with any of the Company's securities being valued at their
market value at the time of the transaction based on the following formula:
(A) 5% of the first one million ($1,000,000) dollars of
the value of the transaction;
(B) 4% of the amount of the value of the transaction in
excess of one million ($1,000,000) dollars up to and
including two million ($2,000,000) dollars;
(C) 3% of the amount of the value of the transaction in
excess of two million ($2,000,000) dollars up to and
including three million ($3,000,000) dollars;
(D) 2% of the amount of the value of the transaction in
excess of three million ($3,000,000) dollars up to
and including four million ($4,000,000) dollars; and
(E) 1% of the amount of the value of the transaction in
excess of four million ($4,000,000) dollars.
The payment of fees under this sub-paragraph (ii) shall apply to any
merger or acquisition which is consummated with any party introduced to the
Company be the Consultant during the term of this Agreement or within two years
thereafter.
For purposes of this Agreement, "Merger or Acquisition" means (A) any
transaction or series of transactions whereby, directly or indirectly, (i) 50%
of the assets, revenues or income of the Company or any of its subsidiaries or
affiliates or (ii) more than 50% of the capital stock of the Company or any of
its
subsidiaries or affiliates is acquired, licensed or leased, with or without a
purchase option, by another party or parties or is transferred to another party
or parties in any manner, including by way of stock purchase, sale, or exchange,
merger, consolidation, reorganization, recapitalization, liquidation, joint
venture or partnership, minority investment, tender or exchange offer, open
market or negotiated purchase or any similar transaction or any combination of
the foregoing or (B) any transaction or series of transactions whereby, directly
or indirectly, (i) 50% of the assets, revenues or income of any other entity or
(ii) more than 50% of the capital stock of any other entity is acquired,
licensed or leased, with or without a purchase option, by the Company or any of
its subsidiaries or affiliates or is transferred to the Company or any of its
subsidiaries or affiliates in any manner, including by way of stock purchase,
sale, or exchange, merger, consolidation, reorganization, recapitalization,
liquidation, joint venture or partnership, minority investment, tender or
exchange offer, open market or negotiated purchase or any similar transaction or
any combination of the foregoing.
(iii) The Company shall reimburse the Consultant for any out-of-pocket
disbursements and expenses in connection with services rendered, upon submission
of substantiation therefore.
4. The Company agrees to indemnify and hold harmless Consultant,
its officers, directors, employees and agents and each person, if any who
controls the Consultant, against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to attorneys' fees and any and all
expense whatsoever reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever)
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained (i) in any information provided to Consultant by the
Company or (ii) arising out of Consultant's services.
If any action is commenced against the Consultant or any of its
officers, directors, employees, agents or controlling persons (an indemnified
party) in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such indemnified party or parties shall promptly
notify the indemnifying party in writing of the commencement of such action and
the indemnifying party shall assume the defense of such action, including the
employment of counsel (satisfactory to such indemnified party or parties) and
payment of expenses. Such indemnified party or parties shall have the right to
employ its or their own counsel in any such case but the fees and expenses of
such counsel shall be at the expense of such indemnified party in connection
with the defense of such action or the indemnifying party or parties unless the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action or the
indemnifying party shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying party. Anything in
this paragraph to the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without its written
consent. The Company agrees promptly to notify the Consultant of the
commencement of any litigation or proceeding against the Company or any of its
officers or directors in connection with any matter covered by the services to
be rendered by Consultant.
None of Consultant its officers, directors, employees, affiliates,
subsidiaries, agents or controlling persons shall have any liability to the
Company, its subsidiaries or affiliates or any person asserting a claim on
behalf of or in the right of the Company or its subsidiaries or affiliates in
connection with or as a result of Consultant's engagement hereunder or any
matter referred to herein, except to the extent that a loss, claim, liability,
damage or expense incurred by the Company or its subsidiary or affiliate is
finally determined by a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct or fraud of the person or entity
performing services hereunder. The Company, for itself and for anyone claiming
through it or in its name or on behalf of its security holders or other owners
irrevocably waives any right it may have to a trial by jury with respect to
relative to or arising under this Agreement or Consultant's engagement
hereunder. Without the prior written consent of Consultant, which shall not be
unreasonably withheld, the Company shall not settle, compromise, or consent to
the entry of a judgement in any pending or threatened claim, action or
proceeding if, following such event, indemnity against the Consultant or its
officers, directors, employees affiliates subsidiaries, agents, or controlling
persons may be sought.
5. This instrument contains the entire agreement of the parties.
There are no representations or warranties other than as contained herein, and
there shall not be any liability to Consultant for any services rendered to the
Company pursuant to the terms of this Agreement. No waiver or modification
hereof shall be valid unless executed in writing with the same formalities as
this Agreement. Waiver of the breach of any term or condition of this Agreement
shall not be deemed a waiver of any other of subsequent breach, whether of like
or of a different nature.
6. This Agreement shall be construed according to the laws of the
State of New York as they are applied to agreements executed and to be performed
entirely within such State and shall be binding upon the parties hereto, their
successors and assigns.
7. Wherever this Agreement conflicts with the Consulting Agreement, this
Agreement shall be controlling.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed and their respective seals to be hereunto affixed the day and year first
above written.
Madison Venture Capital II, Inc.
By: /s/ Xxxxxx Xxxxxxxx
Xx. Xxxxxx Xxxxxxxx, President
/s/Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Secretary - Treasurer
Adirondack Pure Springs MT. Water Co., Inc.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
