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EXHIBIT 10
LKB FINANCIAL LLC./LAHAINA ACQUISITION, INC.
CONTRACT OF ENGAGEMENT
THIS IS AN ENGAGEMENT AGREEMENT (this "Agreement") by and between LKB
FINANCIAL, LLC., a Georgia corporation ("LKB") and Lahaina Acquisitions, Inc.
(the "Company"), and by which LKB and the Company, in consideration of the
mutual agreements set forth below (the mutuality, adequacy, and sufficiency of
which are hereby acknowledged), hereby agree as follows:
1. RETENTION OF LKB AS INVESTMENT BANKER. The Company hereby
engages LKB, and LKB hereby agrees to provide specific financial advisory
services to the Company for the purpose of securing financing for the Company.
Neither LKB nor the Company shall make any commitment, representation, or
warranty of any kind whatsoever on behalf of the other, nor shall either party
have any right or authority to sign for, bind, or commit the other to any
obligation or undertaking in connection with any transaction contemplated
herein, or otherwise, without the written consent of the other.
2. NON-CONTRAVENTION.
2.1 The Company agrees not to engage in, or enter into a
contract to engage in, any Financing with any party, or related or affiliated
party, to whom it is introduced by LKB for the purposes of this financing for a
period of Two (2) years from the Closing Date of this financing. In the event of
circumvention of this prohibition by the Company, the Company shall be required
to pay to LKB the same compensation with respect to such other Financing as is
set forth in Section 4 of this Agreement. The terms of this paragraph shall
remain in effect regardless of whether this contract is terminated under Section
2(c) or 7 below, and regardless of the term of this Agreement.
2.2 The Company agrees that LKB or its representative
shall participate in any and all communications concerning this transaction
between the Company and the Investor(s), affiliates, associates or
representatives of the Investor introduced by LKB other than such communications
that are made to shareholders generally. In the event of such circumvention,
without prior approval from LKB, LKB may, at its sole option, cause the
immediate termination of this Agreement.
3. SERVICES. During the term of this Agreement, LKB will provide
the services set forth on Attachment A hereto (the "Services").
4. COMPENSATION. For all Services to be provided under this
Agreement, the Company shall pay LKB the fees set forth on Attachment B hereto.
5. ACKNOWLEDGMENT OF THE COMPANY. The Company acknowledges and
agrees that LKB may be called upon by other parties or entities from time to
time to provide services similar to the Services to such other parties or
entities and in such an event the Company hereby consents to LKB providing any
such services to such other party of entity.
6. TRADE SECRETS; CONFIDENTIAL INFORMATION. The parties agree
that:
6.1 all of the trade secrets of each party (which
include, but are not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, or a list of actual or
potential customers or services, whether currently existing or otherwise
developed during the term of this Agreement, that derives economic value, actual
or potential, from not being generally known to and not being readily
ascertainable by proper means by other persons who can obtain economic value
from its disclosure or use and is the subject of efforts which are reasonable
under the circumstances to maintain its secrecy and any other information or
materials that is a trade secret within the meaning of Official Code of Georgia
Annotated ss. 10-1-760), and
6.2 all of the confidential information of each party
(which includes any data or information of either party other than trade
secrets, whether currently existing or otherwise developed or acquired by either
party during the term of this Agreement, which is competitively sensitive and
not generally known to the public);
6.3 all of the information contained herein, the Terms of
the transaction, and the structure of the transaction, except as required by the
Securities and Exchange Commission;
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that either has been provided, or will be provided, to the other or that has
been obtained, or will be obtained, by either party in connection with this
Agreement (such trade secrets and confidential information being referred to
collectively as the "Information") is proprietary Information of the disclosing
party and is the sole, exclusive and valuable property of the disclosing party
(and the recipient party acknowledges and agrees that he has, and will acquire,
no right, title or interest in such property).
Thus, the recipient party agrees:
6.3.1 that he will not use the Information to the detriment
of the disclosing party and
6.3.2 that he will hold the Information in strict
confidence, use the Information only in connection with the matters
covered by this Agreement, and not disclose the Information to any
person or entity (other than an employee of the recipient party) unless
the disclosing party directs otherwise
indefinitely in the case of trade secrets (so long as they remain trade secrets)
and until Sixty (60) months after the termination of this Agreement in the case
of confidential information; provided, however, that the agreements in clause
(ii) shall not apply to the Information to the extent the recipient party
demonstrates that:
(a) it was in the public domain at the time of
its communication to the recipient party; or
(b) it entered the public domain through no
action of the recipient party subsequent to the time of communication
to the recipient party; or
(c) it was rightfully received by the recipient
party from a third party without a similar restriction and without
breach of this Agreement or any other agreement with the disclosing
party; or
(d) it was independently developed by the
recipient party without breach of this Agreement; or
(e) it was approved for release by written
authorization of the disclosing party.
Immediately after termination of this Agreement, the recipient party shall
deliver to the disclosing party all materials in its possession involving the
disclosing party's Information. Any trade secrets shall also be entitled to all
of the protection and benefits under O.C.G.A. ss. 10-1-760, O.C.G.A. ss. 16-8-13
and any other applicable law. If any information which the parties deem to be a
trade secret is found by a court of competent jurisdiction not to be a trade
secret for purposes of this section 6, then the Information shall be considered
confidential information for purposes of this section 6.
7. TERM. The term of this Agreement shall be for a period of
Three Hundred Sixty-Five (365) days from the execution of this Agreement, unless
sooner terminated in accordance with this Agreement.
8. LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary in this Agreement, LKB's liability to the Company for any loss or
damage arising out of LKB's performance or nonperformance of the Services shall
be limited to loss or damage directly resulting from willful misconduct or gross
negligence of LKB or its agents. It is expressly agreed that in no event shall
LKB's liability to the Company ever exceed the fees paid to LKB by the Company
for the Services set forth on Attachment B hereto. NEITHER LKB NOR ITS OFFICERS,
DIRECTORS, SHAREHOLDERS OR AGENTS SHALL BE LIABLE FOR INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUES SUFFERED BY THE COMPANY OR
FOR ANY CLAIM, DEMAND OR ACTION AGAINST THE COMPANY OR ANY OF ITS
REPRESENTATIVES BY ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
9. INDEMNIFICATION. The Company shall be solely responsible for,
and hold harmless and indemnify LKB (including its successors, officers,
directors, shareholders, employees, agents and representatives) from and
against, all losses, claims, damages, liabilities, and expenses (including any
and all reasonable expenses and attorneys fees incurred in investigating,
preparing or defending against any litigation or proceeding, commenced or
threatened, or any claim whatsoever whether or not resulting in any liability)
in connection with LKB's provision of the Services to the Company, unless such
loss, claim, damage, liability or expense results from the willful misconduct or
gross negligence of LKB or its employees or agents.
10. MISCELLANEOUS.
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10.1 NOTICES. Each notice under this Agreement shall be in
writing and given either in person or by facsimile, overnight delivery
service or first class mail, postage and any other costs prepaid, to
the address of the party being given notice set forth below his or its
signature or to such other address as a party may furnish to the other
as provided in this sentence; and if notice is given pursuant to the
foregoing of a permitted successor or assign, then notice shall
thereafter be given pursuant to the foregoing also to such permitted
successor or assign.
10.2 ASSIGNMENT; SUCCESSORS IN INTEREST. No assignment,
transfer or delegation of any rights or obligations under this
Agreement by a party shall be made without the prior written consent of
the other party. This Agreement is binding upon the parties and their
respective successors and assigns, and inures to the benefit of the
parties and their respective permitted successors and assigns.
References to a party are also references to any successor or assign of
such party.
10.3 NUMBER; GENDER; CAPTIONS; CERTAIN DEFINITIONS.
Whenever the context requires, the singular includes the plural, the
plural includes the singular, and the gender of any pronoun includes
the other genders. Titles and captions of or in this Agreement are
inserted only as a matter of convenience and for reference and in no
way affect the scope of this Agreement or the intent of its provisions.
The parties agree: (i) that "this Agreement" includes any amendments or
other modifications and supplements, and all exhibits, schedules and
other attachments, to it; (ii) that "parties to this Agreement" and
variations of that phrase includes all persons who have executed and
delivered this Agreement and, in the event of a successor or assign to
a person who has executed and delivered this Agreement, such successor
or assign; and (iii) that "including" and other words or phrases of
inclusion, if any, shall not be construed as terms of limitation, so
that references to "included" matters shall be regarded as
non-exclusive, non-characterizing illustrations.
10.4 SEVERABILITY. Any determination by any court of
competent jurisdiction that any provision of this Agreement is invalid
shall not affect the validity of any other provision of this Agreement,
which shall remain in full force and effect and which shall be
construed as to be valid under applicable law.
INTEGRATION; AMENDMENT, WAIVER. This Agreement (i) constitutes
the entire agreement of the parties with respect to its subject matter, (ii)
supersedes all prior agreements, if any, of the parties with respect to its
subject matter, and (iii) may not be amended except in writing signed by the
party against whom the change is being asserted. The failure of any party at any
time or times to require the performance of any provision of this Agreement
shall in no manner affect the right to enforce the same; and no waiver by any
party of any provision (or of a breach of any provision) of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
or construed either as a further or continuing waiver of any such provision or
breach or as a waiver of any other provision (or of a breach of any other
provision) of this Agreement.
10.5 ATTACHMENTS. All schedules, attachments and exhibits
to this Agreement are hereby incorporated into this Agreement and are
hereby made a part of this Agreement as if set out in full in the first
place that reference is made thereto.
10.6 CONTROLLING LAW. This Agreement is governed by, and
shall be construed and enforced in accordance with the laws of the
State of Georgia.
10.7 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, and all such counterparts taken together shall be
deemed to constitute one and the same agreement.
DULY EXECUTED and delivered by the parties hereto on January 19, 1999,
and effective as of January 19, 1999.
LKB FINANCIAL LLC. LAHAINA ACQUISITIONS, INC.
By: By:
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Xxxxx X. Xxxxxx, Chairman Xxxxxxx X. Xxxxx, President
Address: 000 Xxxxxx Xxxx Xx. Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000 Xxxxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 Florida 32037
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ATTACHMENT A - SERVICES
The Services to be provided by LKB shall include the following:
1. The introduction of an Investor or Investors;
2. Facilitating financing of a Working Credit Line and Notes in the amount
of $300,000.00, on a Best Efforts Basis;
3. Negotiations of terms between the Investor(s) and the Company;
4. Introduction of Escrow Agent, and providing the Escrow Agreement.
5. Provide specific financial advisory services during the term of this
Engagement Contract.
ATTACHMENT B - COMPENSATION
Total Compensation to be paid by the Company shall be as follows:
1. $15,000.00 to be paid in cash via wire transfer at the time of closing
the initial funding.
2. 15,000 Warrants with a strike price equal to the average of the five
closing bid prices of the Company's Common Shares, listed on the O.T.C.
Bulletin Board as reported by Bloomberg, L.P. prior to the initial
closing date. The term of the Warrants will begin at the closing date
hereof and continue through five years from the closing date.
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