EXHIBIT 6.2
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into
on July 29, 1999 by and among Halter Financial Group, Inc., a Texas corporation
("HFG"), RBS Acquisition Corp., a Texas corporation (the "Public Company) and
Microwave Transmission Systems, Inc., a Texas corporation and any subsidiary,
affiliate or successor thereof (the "Company").
WHEREAS, HFG is experienced in assisting companies that wish to become
publicly held entities through reverse merger or reverse acquisition
transactions;
WHEREAS, in order to further its business purpose, the Company desires
to enter into a reverse merger or reverse acquisition transaction (the "Public
Merger Transaction") with the Public Company, a publicly-held "shell"
corporation controlled by HFG.
WHEREAS, the shares of Common Stock in the Public Merger Transaction
will be issued in reliance on the exemption from registration provided in
Section 4(2) under the Securities Act of 1933, as amended (the "Securities
Act");
WHEREAS, the Public Company is entering into this Agreement for the
purpose of assuming the same obligations that the Company has hereunder
subsequent to the completion of the Public Merger Transaction; and
WHEREAS, HFG is willing to provide certain consulting services to the
Company with respect to the Public Merger Transaction and certain other related
matters on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants contained in this Agreement, the parties hereby agree as follows:
1. CONSULTING SERVICES. HFG hereby agrees to provide the
following consulting services to the Company on a best efforts basis, under the
terms and conditions set forth in this Agreement:
(i) Providing the Public Company;
(ii) Preparing proposals involving the structure of the Public
Merger Transaction and certain other related matters contemplated by
this Agreement;
(iii) Preparing and reviewing the necessary documents to
effect the Public Merger Transaction in a form mutually satisfactory to
the parties thereto;
(iv) Preparing a proxy statement (the "Proxy Statement") that
will submit certain matters to the Public Company's shareholders for
approval in accordance with applicable law, including, but not
necessarily limited to, the Public Merger Transaction and a corporate
name change. Such proxy statement may also contain additional
PAGE 1
proposals regarding such other matters appropriate for shareholder
approval as may be mutually agreed upon by the parties;
(v) Subsequent to the Public Merger Transaction and as soon as
permitted by the rules of the National Association of Securities
Dealers, Inc., and any applicable law, rule or regulation during the
term of this Agreement, HFG will assemble documentation required and
draft and prepare application for quotation of the Public Company's
common stock (the "Common Stock") on the Pink Sheets maintained by the
National Quotation Bureau, Inc. for review by the Company and its legal
counsel. In addition, as soon as permitted by the rules of the National
Association of Securities Dealers, Inc., and any applicable law, rule
or regulation, including the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations thereunder
during the term of this Agreement, HFG will assemble documentation
required and draft and prepare application for quotation of the Common
Stock on the OTC Bulletin Board for review by the Company and its legal
counsel. This obligation does not require HFG to prepare and file a
Registration Statement on Form 10. However, to the extent necessary,
HFG will provide information pertaining to HFG and the Public Company
to be included in such registration statement. The Company shall be
responsible for preparing any financial statements and description of
its business operations necessary to complete any such applications.
(vi) Introducing the Company to a market maker;
(vii) Assisting the Company with the preparation of
communications with brokerage professionals, investment bankers and
market makers that may include the following: (a) written communication
with brokerage firms, investment bankers, analysts and market makers;
(b) introductions to retail brokers and investment bankers; (c)
assistance with brokerage presentations; and (d) coordinating
conference calls with brokers;
(viii) Preparing a program of shareholder communications and
relations acceptable to the Company that may include the following: (a)
review of communications with shareholders; and (b) review and
distribution of press releases; and
(ix) Providing such other general assistance and advice as may
be mutually agreed by the parties.
2. REGISTRATION STATEMENT ON FORM 10. Subsequent to the completion of
the Public Merger Transaction, the parties anticipate that the Public Company
will file with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form 10 (together with any amendments or supplements
thereto, the "Registration Statement") to register the Common Stock under the
Exchange Act. The parties agree and acknowledge that the Company and its legal
counsel and other representatives will be responsible for the drafting,
preparation and filing of the Registration Statement and responding to any
comments of the Commission thereto.
PAGE 2
In this regard, HFG will assist the Public Company with assembling and
preparing the information required in the Registration Statement as it relates
to HFG and to the Public Company's management, business and financial condition
prior to the Public Merger Transaction.
3. CONSIDERATION.
(i) Lock-Up Agreement. HFG, in connection with the reverse
merger, does hereby agree that prior to the expiration of three hundred
sixty-five days (365) from June 3, 1999, that neither it nor any entity
or person controlled by it will sell, contract to sell or make any
other disposition of, or grant any purchase option for the sale of, any
shares of Common Stock, directly or indirectly whether or not it
disclaims beneficial ownership of such shares of Common Stock, without
first obtaining the prior written consent of the Company. The parties
further agree that, assuming consummation of the Public Merger
Transaction, this provision will survive termination of the Consulting
Agreement and be in full force and effect for three hundred and
sixty-five days from June 3, 1999.
(ii) This Agreement obligates HFG to perform certain services
in connection with the Public Merger Transaction in addition to those
required to be provided under the plan of bankruptcy to which the
Public Company is subject. In this regard, the Company shall also pay
to HFG the sum of $100,000 in cash at the closing of the Public Merger
Transaction in order to compensate HFG for certain costs and expenses
incurred in performing such services.
4. COMPANY DEPOSIT. The Company hereby acknowledges that time is
of the essence with regard to the consummation of the Public Merger Transaction,
and that the failure to consummate such transaction in a timely manner would
have an adverse effect upon HFG. As such, the Company will deposit the amount of
$50,000 (the "Deposit") into the trust account of the Law Offices of Xxxxxxx X.
Xxxxx, 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Escrow Agent")
to be held by the Escrow Agent pursuant to the provisions of this Paragraph 4.
The Deposit shall be returned in full to the Company if the Company notifies HFG
of its decision not to proceed with consummation of the Public Merger
Transaction at any time prior to the consummation of such transaction, if such
decision is as a result of (a) any misrepresentation or omission of material
fact with regard to information, written or oral, imparted by HFG to the Company
regarding the Public Company or (b) the inability of the Public Company or HFG
to cure, to the satisfaction of the Company, which shall not be unreasonably
withheld, any matter arising from the Company's due diligence review of the
Public Company. One-half (1/2) of the Deposit shall be payable to the Company
and one-half (1/2) shall be payable to HFG if, prior to August 6, 1999, the
Company notifies HFG of its decision not to proceed with the Public Merger
Transaction for any reason other than those set forth in subparts 4.(a) and (b)
above. The Deposit shall be payable in full to HFG if the Company, after August
6, 1999, notifies HFG of its decision not to proceed with the Public Merger
Transaction for any reason other than those set forth in subparts 4.(a) and (b)
above. Upon an event requiring the immediate delivery of all or a portion of the
Deposit to HFG, said amount shall be immediately paid to HFG upon the delivery
of written instruction to the Escrow Agent by HFG.
PAGE 3
If the Company is entitled to all or a portion of the Deposit prior to
the consummation of the Public Merger Transaction as a result of the
circumstances set forth in the preceding paragraph, said amount shall be
immediately payable to the Company upon receipt by the Escrow Agent of written
instructions signed by the Company. Furthermore, the Deposit shall be returned
immediately to the Public Company upon consummation of the Public Merger
Transaction upon receipt by the Escrow Agent of written instruction signed by
both the Public Company and HFG.
5. CERTAIN RELATED MATTERS. The Company shall use its
commercially reasonable efforts to comply with its obligations under this
Agreement and to consummate the Public Merger Transaction. HFG shall use its
best efforts to cause the Public Company to consummate the Public Merger
Transaction.
6. ACCURACY OF INFORMATION AND INDEMNIFICATION.
(i) The Company has and will furnish HFG with certain
information relating to the Company and its management, business and
financial condition in order to enable HFG to perform the consulting
services under this Agreement. In this regard, the Company agrees that
such information is and will be complete, truthful and accurate in all
material respects.
(ii) HFG agrees that it will notify the Company that
circumstances have arisen for which it will seek indemnification and
that after notice, the Company shall have fifteen days to determine if
the Company will assume the defense of such action or proceeding and
will employ counsel reasonably satisfactory to HFG and will pay the
fees and expenses of such counsel. Alternatively, the Company may elect
to indemnify HFG from any against any and all losses, claims, damages
or liabilities, joint or several, to which HFG or any of its officers,
directors, controlling persons or representatives may become subject
under any applicable federal or state law, related to or arising out of
any untrue statement or alleged untrue statement of any material fact
relating to the Company and its management, business and financial
condition contained in any proxy statement, filing or other document
prepared pursuant to this Agreement or relating to or arising out of
the omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
misleading as they relate to the Company and its management, business
and financial condition; except in the event that such arose out of
gross negligence, willful misconduct or malfeasance of HFG. In no event
will the Company be obligated to provide such indemnification relating
to any untrue statements or alleged untrue statements based on
information provided to Company by HFG. At its election, the Company
will reimburse HFG for all reasonable expenses as they are incurred in
connection with the investigation of, preparation for or defense of any
pending or threatened claim or any action or proceeding arising
therefrom, provided that the Company shall have the right to control
the investigation, defense and settlement of any such claim. The
Company shall not be liable for any settlement affected without its
consent.
(iii) As a condition of the information being furnished to
HFG, HFG agrees not to use the information for any purposes other than
in connection with the rendering of
PAGE 4
consulting services to the Company, to keep the information
confidential and not to disclose the information to any third party
for a period of one year from the Effective Date hereof; provided,
however, that HFG may make any disclosure of the information to which
the Company gives its prior written consent or to such of HFG's
officers and employees as may be determined have a need to know.
Notwithstanding the above, HFG shall not be prohibited from using or
disclosing information furnished to HFG by the Company which (a) is or
becomes generally available to the public other than as a result of
disclosure by HFG, (b) was within HFG's possession prior to its
disclosure by the Company to HFG pursuant hereto, (c) becomes
available to HFG on a non-confidential basis after the date hereof
from any third party which is not known to HFG to be bound by a
confidentiality agreement with the Company with respect to such
information, (d) is disclosed to others by the Company without
restriction as to disclosure and/or commercial use, (e) is
independently developed by persons who did not access the information
as a result of HFG's disclosure of the information, or (f) HFG is
required to disclose by law, judicial or administrative orders,
subpoena, or other valid legal process.
7. EXPENSES. HFG will pay all fees and expenses of counsel and
consultants retained directly by HFG. Except as otherwise provided herein, the
Company will pay all other expenses incurred in connection with the performance
of the consulting services under this Agreement, including (i) all fees and
expenses of the Company's counsel and independent public accountants and (ii)
printing, copying and distribution expenses. The Company will, in its sole
discretion, approve and authorize any expenses to be incurred directly by HFG on
behalf of the Company. In the event that HFG directly incurs any approved
expenses on behalf of the Company; HFG will timely provide the Company with an
itemized list of such expenses and the Company will reimburse HFG for such
expenses within 30 days of receipt thereof.
8. TERM. This Agreement will terminate twelve months from the
date of execution of this Agreement, unless terminated earlier pursuant to
Section 9 below.
9. TERMINATION.
(i) This Agreement shall be terminated if the consummation of
the Public Merger Transaction does not occur on or before October 1,
1999 for any reason.
(ii) This Agreement may be terminated:
PAGE 5
a) By the Company, subject to forfeiture by the
Company of the Deposit, except as otherwise provided for in
Paragraph 4, hereto, at any time prior to the consummation of
the Public Merger Transaction;
b) By HFG at any time, if the Company does not
provide reasonably necessary or appropriate assistance,
information, documents or other materials necessary or
advisable in order to enable HFG to perform the consulting
services under this Agreement; or
c) Upon the mutual written agreement of the parties.
10. AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified by the written consent of the parties.
11. COUNSEL. The Company hereby expressly acknowledges that it has
been advised that it has not been represented by HFG's attorneys in this matter
and has been advised and urged to seek separate legal counsel for advice in this
matter.
12. CAPTIONS AND HEADINGS. The paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit or add to the meaning of any provision of this Agreement.
13. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Texas, without regard to conflicts
or choice of law provisions of the State of Texas.
14. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing facsimile signature of a
party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
15. NOTICES AND WAIVERS. Any notice or waiver required or
permitted to be given by the parties hereto shall be in writing and shall be
deemed to have been given, when delivered, three business days after being
mailed by certified or registered mail, faxed during regular business hours of
the recipient and there is confirmation of receipt, or sent by prepaid full rate
telegram to the following addresses:
To HFG or the Public Company prior
to the Public Merger Transaction: Xxxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
To the Company or the Public Company
subsequent to the Public Merger Transaction: P. Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
PAGE 6
16. ARBITRATION OF DISPUTES. In the event that a dispute arises
between the parties, said dispute arising out of, in connection with or as a
result of the Agreement entered into between the parties, the parties agree that
said dispute shall be resolved through binding arbitration rather than
litigation. Both parties hereby agree to submit the dispute for resolution,
under the rules then obtaining, to either the American Arbitration Association,
or the National Association of Securities Dealers, Inc., within five (5) days
after receiving a written request to do so from either party. The determination
of the arbitrators shall be final and binding upon both parties and may be
enforced in any court of competent jurisdiction. The parties hereto hereby
agree that the Federal Arbitration Act shall govern the proceeding and all
issues raised.
17. INDEPENDENT CONTRACTOR; NO POWER TO BIND. HFG is not an
employee of Company for any purpose whatsoever, but is an independent
contractor. HFG does not have the right or authority to create a contract or
obligation either express or implied, on behalf of, in the name of or binding
upon Company, or to pledge Company credit, or to extend credit in the Company's
name unless otherwise agreed in writing. HFG shall have no right or authority to
commit Company in any manner without the prior written consent of Company.
18. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the Company and HFG, and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the subject matter hereof and may not be amended or
rescinded except in a writing signed by both parties hereto.
19. SEVERABILITY. If any provision of this Agreement shall be held
or deemed to be, or shall in fact be, inoperative or unenforceable as applied in
any particular case, such event shall not affect the validity or enforceability
of the remainder of the Agreement.
PAGE 7
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the day written above.
HALTER FINANCIAL GROUP, INC.
By:______________________________________
Xxxxxxx X. Xxxxxx, President
RBS ACQUISITION CORP.
By:______________________________________
Xxxxxxx X. Xxxxxx, President
MICROWAVE TRANSMISSION SYSTEMS, INC.
By:______________________________________
P. Xxxxx Xxxxxxx, Chief
Executive Officer
PAGE 8
