EXHIBIT 10.6
BUSINESS CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made and entered into as of July
8, 2004 by and between Navidec Financial Services, Inc., a Colorado corporation
located at 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 ("Navidec"). and Phoenix Alliance, Inc., a Colorado corporation
located at 00 Xxxxx Xxxxx, Xxxxxxx, 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 to Navidec, Inc. and BPZ Energy, Inc. with
respect to a potential merger of the two entities. (the "Business").
B. PR Firm is 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.
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.
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.
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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;
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 July 12,
2004 (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 July 11, 2005 (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.
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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, 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
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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 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.
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(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.
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.
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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 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 Firmt:
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Navidec Financial Services, Inc. Phoenix Alliance, Inc.
Attention: Xxxx X. XxXxxxx Attn: Xxxxxxx X. Xxxx
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx 00 Xxxxx Xxxxx
Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Xxxxxxxxx Xxxxxxx, XX 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000 Email: xxxxxxxxxxxxxxx@xxxxxxxx.xxx
Email: xxxxxxxxxxx@xxxxxxx.xxx
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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.
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.
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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.
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:
PHOENIX ALLIANCE, INC..
a Colorado corporation
Date: July 10, 2004 By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
CLIENT:
NAVIDEC FINANCIAL SERVICES, INC
a Colorado corporation
Date: July 10, 2004 By: /s/ Xxxx X. XxXxxxx
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Name: Xxxx X. XxXxxxx
Title: President and Chief
Executive Officer
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Navidec Financial Service, Inc./Phoenix Alliance, Inc. Agreemen
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:
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./Phoenix Alliance, Inc. 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 500,000 shares of Navidec, 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-2) Monthly Retainer. Client shall pay PR Firm $120,000 payable in twelve
(12) monthly payments of $10,000.00 during the term of the Agreement (together
referred to as the"Base Retainer", and each "Monthly Base Retainer Payment").
$10,000 is payable upon signing and the remaining payments shall be due and paid
by Client to PR Firm within ten days of the beginning of each of the 2nd through
12th respective monthly periods.
