Consulting Agreement
This Consulting Agreement (the Agreement) is entered into effective the
1st day of August, 2008, between United EcoEnergy Corp., a Nevada corporation
(the Company), Enterprise Administration, LLC (the Administrator) and The
Turnaround Group, LLC. a Colorado limited liability company (the Consultant)
for the purpose of engaging the Consultant to advise and assist in the
management of the Company as a Business Development Company (?BDC?) regulated
under the Investment Company Act of 1940 and for other services.
1. Services. The Consultant shall provide consulting and advisory
services and assistance to the Company as a sub-administrator of the
Administrator, as provided in Paragraph 2 of that certain Administration
Agreement dated June 26, 2008 between the Company and the Administrator (the
Administration Agreement), The Consultant shall provide management consulting
and advisory services and assistance to the Company and the Administrator,
including compliance with BDC and other periodic reporting requirements for
the Company, assistance in structuring portfolio investment acquisitions, and
similar services, as well as supervising the maintenance of the corporate and
financial books and records of the Company. In addition to these Services, the
Consultant shall designate its managing director to serve as Chief Executive
Officer, Chairman and a Director of the Company from the date of the execution
of this Agreement, at no additional cost or expense to the Company other than
the Compensation to Consultant set forth in Section 5 hereof, who shall
execute all required regulatory filings for the Company as Chief Executive
Officer.
2. Additional Services. It is understood and agreed that this agreement
and the Services to be provided hereunder are to be provided to the Company and
the Administrator, and that any services, consulting, advice or other work
performed or to be performed for any portfolio company, acquisition target or
other entity by Consultant or any agent or representative of Consultant at the
request of the Company and the Administrator or its affiliates shall be the
subject of a separate consulting agreement with such portfolio company,
acquisition target or other entity.
3. Confidentiality of Services. Introductions to and use of professionals
and other consultants made by the Consultant will be considered exclusive for
purposes of this Agreement. Documents prepared by Consultant in connection
with this Agreement and the services provided shall not be disclosed or given
to third parties, without prior approval from Consultant, except as required
by SEC rules and regulations relating to filing and disclosure or otherwise
required to be disclosed by law or administrative or judicial process.
Notwithstanding the foregoing, any corporate document (minutes, committee
charter, policy statement, etc.) once adopted by the Company shall not be
confidential information and may be disclosed by the Company as it deems
appropriate.
4. Information provided by the Company and the Administrator. In
connection with Consultant?s activities hereunder, the Company and the
Administrator will furnish the Consultant and its counsel upon request with
all material and information regarding the business and financial condition of
the Company and its business plans available to the Company and the
Administrator (all such information so furnished being the ?Information?). The
Consultant will perform due diligence based on the Information; however, the
Company and the Administrator recognize and confirm that the Consultant: (a)
will use and rely primarily on the Information and on information available
from generally recognized public sources in performing the services
contemplated by this Agreement; (b) does not assume responsibility for the
accuracy or completeness of the Information and such other information as may
be obtained as part of the Consulting Services; (c) will not make an appraisal
of any securities or assets of the Company or any portfolio company; and (d)
retains the right to continue to perform due diligence during the course of
the engagement. The Consultant agrees to keep the Information confidential, so
long as it is and remains non-public, unless disclosure is required by law or
is requested by any government or regulatory agency or body, and the Consultant
will not make use thereof, except in connection with services provided
hereunder for the Company and the Administrator.
5. Compensation. As compensation for the Consulting Services rendered
and to be rendered hereunder by the Consultant, the Company and the
Administrator agree to pay to the Consultant the sum of $10,000 per month for
a period of twelve (12) months, commencing August 1, 2008, payable monthly on
or before the 15th day of each month. The Company and the Administrator agree
that the Compensation to Consultant shall be paid directly by the Company to
the Consultant for the Administrator and thereafter shall be charged as part
of, and offset against, the compensation of the Administrator as set forth in
Paragraph 5 of the Administration Agreement. Any out of pocket expenses
incurred by Consultant for travel, telephone, postage, and other items shall
be reimbursed by the Company and the Administrator, on presentation of an
expense report and receipts for such expenses. Compensation for any period
after the initial twelve month term of this Agreement shall be as then agreed
by the parties, but shall not be less than $10,000 per month. It is understood
and agreed that the Services provided under this Agreement are not the
exclusive services of Consultant and that Consultant, through its agents and
employees, may provide similar and other services to other unrelated or related
parties, without regard to the time allocated to the Services and any services
rendered to other parties. It is further understood that the Compensation
provided for herein is separate from and does not include any Additional
Services described in Paragraph 2of this Agreement.
6. Term and Termination. The initial term of this Agreement shall be thirty-
six (36) months from the date of execution; however, the term shall be extended
automatically at the end of each twelve month period for an additional twelve
month period, unless and until terminated as provided herein. The Consultant
or the Company and the Administrator, with thirty days prior written notice,
without cause, may terminate this engagement at any time after the end of the
first twelve months of the term of this Agreement, (except for Schedules A and
B and Sections 9, 10, and 12 of this Agreement which shall remain in full force
and effect), provided however, that the Compensation provided for herein shall
continue for a full twelve month period notwithstanding any termination, except
Compensation shall cease thirty days after notice: (a) if such termination is
for willful misfeasance, bad faith or gross negligence in the performance of
the Consultant?s duties, or by reason of the reckless disregard of the
Consultant?s duties and obligations under this Agreement or (b) as a result of
the voluntary resignation or discharge of the Consultant?s managing member as
the CEO of the Company for Cause. For purposes of this Agreement, the term
Cause shall mean any of the following acts or events: (i) the CEO?s gross
negligence, gross dereliction of duty, willful misconduct or repeated material
failure of the CEO to render services to the Company and the Administrator in
accordance with his assigned duties after due notice thereof; (ii) the CEO?s
conviction of, or plea of nolo contendere, to a felony (other than a felony
involving a traffic violation); or (iii) the CEO?s disloyalty, dishonesty or
the commission by the CEO of an act of fraud or embezzlement against or
involving the Company, or the willful disregard of the rules or policies of the
Company, any of which results in actual loss, damage or injury to the Company
and the Administrator, whether directly or indirectly. For purposes of this
paragraph, no act, or failure to act, on the CEO?s part shall be considered
willful unless such act, or failure to act, is in bad faith or without
reasonable belief that his action or omission was in the best interests of the
Company and the Administrator.
7. Use of Name. The Company and the Administrator agree that any reference
to the Consultant in any release, communication, or material distributed to
prospective investors or lenders is subject to the Consultant?s prior written
approval, which will not be unreasonably withheld. If the Consultant resigns
prior to the dissemination of any such release, communication or material, no
reference shall be made therein to the Consultant.
8. Use of Advice. No advice rendered by the Consultant in connection with
the services performed by the Consultant pursuant to this Agreement will be
quoted by any party hereto, nor will any such advice be referred to in any
report, document, release or other communication, whether written or oral,
prepared, issued or transmitted by such party or any person or corporation
controlling, controlled by or under common control with such party or any
director, officer, employee, agent or representative of any such party,
without the prior written authorization of all parties hereto, except to the
extent required by law or compelled by judicial, administrative or regulatory
process (in which case the appropriate party shall so advise the other in
writing prior to such use and shall consult with the other with respect to the
form and timing of disclosure), provided that the foregoing shall not prohibit
appropriate internal communication or reference with respect to such advice
internally within such parties.
9. Representations and Warranties.
a. The Company and the Administrator represent and warrant to the Consultant
(i) that this Agreement has been duly authorized, executed and delivered
by the Company and the Administrator, and, assuming the due execution
by the Consultant, constitutes a legal, valid and binding Agreement of
the Company and the Administrator enforceable against the Company
and the Administrator in accordance with its terms. Each of the Company
and the Administrator represents that, to the best of its knowledge, the
Information will not, when delivered to Consultant specifically for
inclusion in regulatory filings, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading. The Company and the Administrator agree to advise the
Consultant promptly of the occurrence of any event or any other change
prior to any filing known to it which results in the Information containing
any untrue statement of a material fact or omitting to state any material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(ii) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada. The Administrator is a company duly formed under the laws of
the State of Colorado.
(ii) Authorization. The Company and the Administrator have full power, legal
capacity and authority to enter into this Agreement, and to perform all of
its obligations hereunder. This Agreement has been effectively
authorized by all necessary action, corporate or otherwise, on the part of the
Company and the Administrator, which authorizations remain in full force and
effect, has been duly executed and delivered by the Company and the
Administrator, and no other proceedings on the part of the Company and
the Administrator are required to authorize this Agreement. This
Agreement constitutes the legal, valid and binding obligation of the
Company and the Administrator and is enforceable with respect to the
Company and the Administrator in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting
generally the availability of equitable remedies. Neither the execution
and delivery of this Agreement, nor the performance by the Company and the
Administrator of the undertakings contemplated hereby, or compliance
with any of the provisions hereof, will violate any judgment, order,
injunction, decree, statute, rule applicable to the Company and the
Administrator or the transactions or services contemplated hereby. No
authorization, consent or approval of any public body of authority or
any third party is necessary for the Company and the Administrator to
perform the undertakings contemplated by this Agreement.
(iv) No Pending Material Litigation or Proceedings. There are no actions,
suits or proceedings pending or, to the best of the Company?s and
the Administrator?s knowledge, threatened against or affecting the
Company or the Administrator at law or in equity or before or by any
federal, state, municipal or other governmental department, commission,
court, board, bureau, agency or instrumentality, domestic or foreign, or
affecting any of the officers or directors or principal stockholders of the
Company and the Administrator in connection with the business,
operations or affairs of the Company and the Administrator, which might
result in any adverse change in the business of the Company, or
which might prevent the Company and the Administrator from
undertaking the obligations contemplated by this Agreement.
(iii) Compliance with Law and Government Regulations. The Company and
the Administrator are in compliance, and during the term of this
Agreement will be in compliance, with all applicable statutes,
regulations, decrees, orders, restrictions, guidelines and standards
whether mandatory or voluntary, imposed by the United States of America, any
state, county, municipality or agency of any thereof, which the Company
and the Administrator are subject. Without limiting the generality of the
foregoing, the services contemplated by this Agreement do not and will
not: (a) involve effecting transactions in any security, or inducing, or
attempting to induce the purchase or sale of any security which would
require the Consultant or its officers or employees to register under the
Securities Exchange Act of 1934, as amended; (b) activities which would
require the Consultant or its agents to register under the Investment
Advisors Act of 1940, as amended; or (c) activities which would under
state regulation relating to broker-dealers or investment advisors require
registration or licensing, unless the Company satisfies any such
requirements.
b. The Consultant represents and warrants to the Company and the
Administrator that:
(i) Organization. The Consultant is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Colorado.
(ii) Authorization. The Consultant has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its
obligations hereunder. This Agreement has been effectively
authorized by all necessary action, corporate or otherwise, on the part
of the Consultant, which authorizations remain in full force and effect,
has been duly executed and delivered by the Consultant, and no
other corporate proceedings on the part of the Consultant are required
to authorize this Agreement. This Agreement constitutes the legal,
valid and binding obligation of the Consultant and is enforceable with
respect to the Consultant in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting
generally the availability of equitable remedies. Neither the execution
and delivery of this Agreement, nor the performance by the Consultant
of the services contemplated hereby, or compliance with any of the
provisions hereof, will violate any judgment, order, injunction, decree,
statute, rule applicable to the Consultant or the transactions or
services contemplated hereby. No authorization, consent or approval
of any public body of authority or any third party is necessary for the
Consultant to perform the services contemplated by this Agreement.
(iv) No Pending Material Litigation or Proceedings. There are no actions,
suits or proceedings pending or, to the best of the Consultant?s
knowledge, threatened against or affecting the Consultant at law or in
equity or before or by any federal, state, municipal or other
governmental department, commission, court, board, bureau, agency or
instrumentality, domestic or foreign, or affecting any of the officers or
directors or principal stockholders of the Consultant in connection with
the business, operations or affairs of the Consultant, which might result
in any adverse change in the business of the Consultant, or which might
prevent the Consultant from performing the services contemplated by this
Agreement.
(v) Compliance with Law and Government Regulations. The Consultant is
in compliance, and during the term of this Agreement will be in compliance,
with all applicable statutes, regulations, decrees, orders, restrictions,
guidelines and standards, whether mandatory or voluntary, imposed by
the United States of America, any state, county, municipality or agency
of any thereof, which the Consultant is subject. Without limiting the
generality of the foregoing, the services contemplated by this Agreement
does not and will not: (a) involve effecting transactions in any security,
or inducing, attempting to induce the purchase or sale of any security
which would require the Consultant or its officers or employees to register
under the Securities Exchange Act of 1934, as amended; (b) activities
which would require the Consultant or its agents to register under the
Investment Advisors Act of 1940, as amended; or (c) activities which
would under state regulation relating to broker-dealers or investment
advisors require registration or licensing.
(v) Compliance with Administration Agreement. As part of the performance
of its duties hereunder, Consultant shall comply with the provisions of
Paragraphs 2 and 3 of the Administration Agreement, as and to the extent
the duties and actions of the Consultant relate thereto.
9 Indemnity.
a. In partial consideration of the services to be rendered hereunder, the
Company and the Administrator agree to indemnify the Consultant in
accordance with Schedule A attached hereto.
b. In partial consideration of the services to be rendered hereunder, the
Consultant agrees to indemnify the Company and the Administrator in
accordance with Schedule B attached hereto.
11. Conditions of Engagement. It is understood that the execution of this
Agreement shall not be deemed or construed as obligating the Consultant to
place or arrange any financing for the Company or the Administrator. It is
further understood and agreed that Consultant, and any agent or representative
of Consultant providing services under this Agreement, shall be an independent
contractor, and shall not be considered an employee of the Administrator.
12. Survival of Certain Provisions. The indemnity and contribution
agreement contained in Schedules A and B to this Agreement and the
representations and warranties of the Company and the Administrator and
Consultant contained in Section 9 of this Agreement shall remain operative and
in full force and effect regardless of: (a) any investigation made by or on
behalf of Consultant, or any person controlling it, (b) completion of any
financing, (c) the resignation of the Consultant or any termination of the
Consultant?s services or (d) any termination of this Agreement, and shall
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Administrator, the Consultant, and the
indemnified parties .
13. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered as follows:
if to the Company, at
United EcoEnergy Corp
000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone 000-000-0000
Facsimile 000-000-0000
If to the Administrator:
Enterprise Administration, LLC
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
if to Consultant, at:
The Turnaround Group, LLC.
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone 000-000-0000
Facsimile
or at such other address as such person may hereafter give notice to the
others.
14. Counterparts. This Agreement may be executed in two or more
counterparts and the counterparts, when executed, shall constitute a single,
enforceable document. The signature on counterparts may be transmitted by
fax, with documents so transmitted having the same force and effect as the
executed originals.
15. Third Party Beneficiaries. This Agreement has been made and is made
solely for the benefit of the Company and the Administrator, the Consultant
and the other Indemnified Persons referred to in Schedules A and B hereto and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement.
16. Construction. This Agreement incorporates the entire understanding
of the parties and supersedes all previous agreements relating to the subject
matter hereof should they exist, and shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to principles
of conflicts of law, and shall be enforced in any applicable court in the State
of Florida, except as otherwise provided in Section 18 below.
17. Headings. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not part of this
Agreement.
18. Amendment. This Agreement may not be modified or amended except
in writing duly executed by the parties hereto.
19. Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration on
the following terms:
a. It shall be a condition precedent to the right of any party to
submit any matter to arbitration pursuant to the provisions hereof, that any
party intending to refer any matter to arbitration shall have given not less
than five business days? prior written notice of its intention to do so to the
other party together with particulars of the matter in dispute. On the
expiration of such five business days the party who gave such notice may
proceed to refer the dispute to arbitration as provided for below.
b. The party desiring arbitration shall appoint one arbitrator, and
shall notify the other party of such appointment, and the other party shall,
within five business days after receiving such notice, appoint an arbitrator,
and the two arbitrators so named, before proceeding to act, shall, within five
businessdays of the appointment of the last appointed arbitrator, unanimously
agree on the appointment of a third arbitrator, to act with them and be
chairman of the arbitration herein provided for. If the other party shall fail
to appoint an arbitrator within five business days after receiving notice of
the appointment of the first arbitrator, and if the two arbitrators appointed
by the parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed in accordance with the rules for commercial
arbitration of the American Arbitration Association. Except as specifically
otherwise provided in this section, the arbitration herein provided for shall
be conducted in accordance with the rules for commercial arbitration of the
American Arbitration Association and shall be conducted in the State of
Florida. The chairman, or in the case where only one arbitrator is appointed,
the single arbitrator, shall fix a time and place for the purpose of hearing
the evidence and representations of the parties, and he shall preside over the
arbitration and determine all questions of procedure not provided for by the
rules for commercial arbitration of the American Arbitration Association. or
this section. After hearing any evidence and representations that the parties
may submit, the single arbitrator, or the arbitrators, as the case may be,
shall make an award and reduce the same to writing, and deliver one copy
thereof to each of the parties.
c. The Parties agree that the award of a majority of the
arbitrators, or in the case of a single arbitrator, of such arbitrator, shall
be final and binding upon each of them, and there shall be no appeal from such
award.
d. Any award in the arbitration shall be limited to actual
contractual damages, and there shall be no award of consequential or punitive
damages, attorneys? fees or other expenses. Each party expressly waives and
disclaims the right to a jury trial relating to or arising out of this
Agreement and expressly accepts the arbitration procedure set forth herein as
the sole means of resolving any disputes or disagreements.
Executed and delivered by the undersigned, intending to be bound thereby,
as of and effective on the date above.
Consultant:
The Turnaround Group, LLC
By Date: August 1, 2008
Managing Director
Company:
UNITED ECOENERGY CORP.
By Date: August 1, 2008
Title: _______________________
Administrator:
ENTERPRISE ADMINISTRATION, LLC
By: Tower I Consultants, LLC
Managing Director
By: _________________________ Date: August 1, 2008
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