EXCLUSIVE CONSULTING AGREEMENT
Exhibit
10.1
THIS
AGREEMENT ("Agreement") is made and entered into as of the 7th day of August,
2007 by and between TOTOWA CONSULTING GROUP, INC. a Nevada corporation whose
primary business address is 000 Xxxxx Xxxx., Xxxxxx, XX 00000 (hereinafter
referred to as the “Consultant”) and PREMIERE PUBLISHING GROUP INC., a Nevada
corporation whose primary business address is 000 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx,
XX 00000 (hereinafter referred to as the "Company").
WITNESSETH:
WHEREAS,
the Consultant is in the business of providing consulting services with regard
to resolving creditor claims, including debt restructuring, debt reduction
and
business recapitalization; and
WHEREAS,
the Company desires to retain the services of the Consultant on the terms and
conditions provided in this Agreement; and
WHEREAS,
the Consultant, understanding and accepting the terms and conditions set forth
herein, desires to render such services on such terms and conditions;
and
WHEREAS,
this Agreement shall govern the relationship between the parties from and after
the date hereof;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties mutually agree as follows:
1. Engagement. The
Company hereby retains Consultant as the Company’s exclusive Consultant for the
services described in this Exclusive Consulting Agreement and Consultant agrees
to act as a consultant to the Company. The Company shall advise the
Consultant of certain claims of creditors (the “Creditors Claims”) and the
confirmed debt of each Creditor Claim (“Confirmed Debt”) for which it requires
Consultant’s services. The Consultant, personally, and through
delegation to such persons as Consultant deems appropriate, will use its best
efforts to negotiate the Creditor Claims and to attempt to effect a reasonable
and fair settlement, discharge, or release of Creditor Claims (the “Services”).
Consultant has not been engaged to perform, nor will Consultant agree to perform
any Services (a) in connection with capital-raising transactions, or (b) which
directly or indirectly promote or maintain a market in the Company’s securities.
Consultant will consult with the Company on a regular basis with respect to
Creditor Claims and the Company shall approve of any final agreement to a
creditor.
2. No
Agency, Independent Contractor. Consultant acknowledges
that it is not an officer, director or agent of the Company, it is not, and
will
not, be responsible for any management decisions on behalf of the Company,
and
may not commit the Company to any action. Consultant understands and
acknowledges that this Agreement shall not create or imply any agency
relationship among the parties, and Consultant will not commit the Company
in
any manner except when a commitment has been specifically authorized in writing
by the Company. The Company and the Consultant agree that the relationship
among
the parties shall be that of independent contractor.
3. Term. The
initial term (“Initial Term”) of the Consultant’s Services hereunder shall
commence on the date of this Agreement, and shall continue in accordance with
the terms of this Agreement for a period of twenty-four (24) months from the
date of commencement, subject to termination as provided in this
Agreement. After the expiration of the Initial Term, this Agreement
will be automatically extended for additional and successive six (6) month
periods, unless either party gives written notice to the other at any time
that
such next automatic extension shall not occur, in which event the Consultant’s
services shall terminate upon the expiration of the then current extended Term.
The terms and conditions then in effect at the end of the Initial Term, or
any
renewal term, shall control during the succeeding renewal term unless otherwise
set forth herein or mutually agreed to in writing.
4. Representations
and Warranties.
(a) By
The Company.
(i) Organization. The
Company is duly organized, validly existing and in good standing under the
law
of the State of Nevada and is qualified to conduct its business as a foreign
corporation in each jurisdiction where the failure to be so qualified would
have
a material adverse effect on the Company.
(ii) Authorization
of Agreement, Etc. The execution, delivery and performance by the
Company of this Agreement has been justly authorized by all requisite corporate
action by the Company; and the Agreement has been duly executed and delivered
by
the Company. The Agreement, when executed and delivered by the Company,
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws affecting creditors’ rights an remedies generally, and subject as to
enforceability to general principles of equity (regardless of whether
enforcement is sought in a proceedings at law or in equity).
(b) By
Consultant.
(i) Organization. The
Consultant is duly organized, validly existing and in good standing under the
law of the State of Nevada and is qualified to conduct its business as a foreign
corporation in each jurisdiction where the failure to be so qualified would
have
a material adverse effect on the Consultant.
(ii) Authorization
of Agreement, Etc. The execution, delivery and performance by the
Consultant of this Agreement has been duly authorized by all requisite corporate
action by the Consultant; and the Agreement has been duly executed and delivered
by the Consultant. The Agreement, when executed and delivered by the Consultant,
constitutes the valid and binding obligation of the Consultant, enforceable
against the Consultant in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws affecting creditors’ rights an remedies generally, and
subject as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceedings
at law or in equity.)
5. Events
of Default. The occurrence of any of the following events shall
constitute an Event of Default hereunder:
(a) If
the Company fails to make a timely payment for compensation earned by Consultant
as it becomes due;
(b) If
the Company shall:
(i) apply
for or consent to the appointment of a receiver, trustee or liquidator of it
or
any of its property;
(ii) admit
in writing its inability to pay its debts as they mature
(iii) make
a general assignment or trust mortgage for the benefit of
creditors;
(iv) file a voluntary petition in bankruptcy,
or a petition or an answer seeking reorganization or any
arrangement with creditors or to take advantage
of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law
or statute, or
an answer admitting the material allegations of
a petition filed against it in
any proceeding under any such law, take
any action for the purpose of effecting any of the
foregoing;
(c) If
an order, judgment or decree shall
be entered against either party by any court of
competent jurisdiction, approving a petition seeking reorganization
of such party, or appointing a receiver, trustee or
liquidator of the party or of all or a substantial portion
of its assets, and the same shall not be dismissed or
discharged within one hundred eighty (180)
days after notice thereof given by one party to the
other;
(d) If any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against
a substantial part of the property of a party, and such judgment, writ, or similar process shall not be released,
vacated, or fully bonded within one hundred eighty (180) days after its issue or levy; or
(e) In
the event of a change of control of the ownership of the Company by public
offering, merger, acquisition or other corporate transaction.
6. Remedies
of Default. In the event of default as described in Item 4
above, all consulting services with Company will, at the sole discretion of
Consultant, cease and all amounts owed to Consultant shall become immediately
due and payable.
7. Compensation.
(a) Company
shall pay Consultant for the Services rendered hereunder the sum of Four Hundred
Eighty Thousand Dollars ($480,000), payable at the rate of Twenty Thousand
Dollars ($20,000) per month commencing upon execution hereof and continuing
on
the first day of each month hereafter during the Initial Term hereof; provided,
however, that the Company shall prepay Consultant the initial seven (7) months
of Compensation by delivering to Consultant the sum of twenty-eight million
(28,000,000) shares of the Company’s restricted common stock $0.001 par value
(the “Consultant Shares”) and subject to the restrictions as set forth in the
Investor’s Rights Agreement of even date herewith (the “Rights Agreement”), with
such shares being earned and non-refundable by Consultant, and which shall
be
released to the Consultant, immediately upon the execution of this Agreement.
During any renewal term hereof, Company shall additionally pay Consultant at
the
rate of Twenty Thousand Dollars ($20,000) per month, or upon such other terms
as
the parties hereto agree from time to time. Consultant understands that any
shares that are issued pursuant to this Agreement will not have been registered
pursuant to the Securities Act, any other federal securities law, any applicable
foreign securities law or any applicable state securities or Blue Sky law,
that
such shares will be characterized as "restricted securities" under the United
States securities laws and that under such laws and applicable regulations
such
shares cannot be sold or otherwise disposed of without registration under the
Securities Act or an exemption therefrom. Consultant understands and
agrees that the certificates representing any shares issued pursuant to this
Agreement shall each conspicuously set forth on the face or back thereof a
legend in substantially the following form:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE (“BLUE SKY
LAWS”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH
RESPECT TO THE SECURITIES UNDER THE ACT AND UNDER SUCH BLUE SKY LAWS, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
REGISTRATION AND QUALIFICATION UNDER THE ACT AND SUCH BLUE SKY LAWS IS NOT
REQUIRED.”
(b) Consultant
will be issued additional shares of common stock in the event the “Per Share
Fair Market Value” of the Common Stock of the Company on the “Measurement Date”
is less than the per share value of the compensation as determined under
subsection (a) above. The “Per Share Fair Market Value” shall be the
average of the highest closing bid price during the twenty (20) full trading
days as published by the OTCBB electronic bulletin board quotation system
immediately preceding the Measurement Date. The “Measurement Date”
shall be the six month anniversary of this Consulting Agreement. In
the event additional shares are issued pursuant to this Price Protection
provision, such additional shares shall constitute Consultant
Shares.
8. Continual
Involvement of the Consultant. The Consultant shall keep the Company
informed on the progress of the Consultant’s Services and, in this regard, the
Consultant agrees to keep the Company apprised of all material developments
at
least monthly. Additionally, the Consultant will provide continuing
consulting Services regarding cash flow and debt management, and will be
compensated for such Services in such amount and manner as set forth in this
Agreement.
9. The
Company’s Obligations Under this Agreement. From the date hereof until
the termination of this Agreement, the Company shall: (a) pay to the Consultant
Compensation as specified above; (b) provide the Consultant full and
complete access to inspect and appraise its assets and operating location and
will disclose and make available to the Consultant or its representatives during
regular business hours, all books, agreements, papers and records relating
to
the financial condition, ownership and operation of the Company as shall be
reasonably requested; and (c) without the prior written consent of the
Consultant, not disclose the work product of Consultant to any third party
unless required by law.
10. Indemnification. The
Company agrees to indemnify, defend and hold harmless Consultant, including
Consultant’s members, employees, agents and assigns,, from any and all
liabilities, obligation, judgments, awards, settlement payments, deficiencies,
penalties, fines, costs, expenses (including, without limitation, attorneys’ and
other professional fees and costs), losses and other damages of any kind
resulting from any “Covered Claim” (as defined below), except to the extent
expressly prohibited by applicable law. For purposes thereof,
“Covered Claim” means any suit, arbitration, action, audit, hearing, proceeding,
investigation or claim of any kind that may be asserted against or otherwise
involve (whether by subpoena, as a witness or otherwise) Consultant relating
in
any way to Consultant’s services or activities for or Consultant’s duties
(contractual, fiduciary or otherwise) to the company or any shareholder thereof,
to any direct or indirect subsidiary of the Company, to any benefit plan or
participant thereof of to any other person or entity that Consultant may serve
at the request of the Company and any untrue or alleged untrue statement of
a
material fact contained in a any statement, written or oral, or arising out
of
or relating to any omission or alleged omission of a material fact required
to
be stated or necessary to make the statement or statements not
misleading.
11. Confidentiality.
Each party to this Agreement recognizes and acknowledges that they may
have access to certain confidential and proprietary information of the other
party. Neither party shall disclose any such confidential or proprietary
information to any person or firm, corporation, association, or other entity
for
any reason or purpose whatsoever, and shall not use such information, directly
or indirectly, without the other party’s prior written
consent. The term "Confidential Information" does not
include information which the receiving Party can demonstrate: (i) Is now or
hereafter becomes available in the public domain, to the publishing trade,
or
within the Internet industry without improper disclosure by the receiving Party;
(ii) Is known to the receiving Party at the time of receipt of such information;
(iii) Is furnished to the receiving Party by a third party without a violation
of this Agreement; (iv) Is the subject of written permission to disclose
provided by the other Party; and (v) Is independently acquired or developed
by
the receiving Party, its employees, agents, affiliates or advisors.
12. Binding
Agreement. This Agreement constitutes the entire Agreement and
understanding between the parties and shall not be modified, altered, changed
or
amended in any respect unless in writing and signed by both
parties.
13. Amendment
of Agreement. This Agreement may not be modified or amended except by
an instrument in writing signed by the parties hereto.
14. Severability. In
the event that any of the provisions of this Agreement are held to be invalid
or
unenforceable in whole or in part, those provisions to the extent enforceable
and all other provisions shall nevertheless continue to valid and enforceable
as
though the invalid or unenforceable parts had not been included in this
Agreement. In the event that any provision relating to the time
period or scope of a restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or scope such court deems
reasonable and enforceable, then the time period or scope of the restriction
deemed reasonable and enforceable by the court shall become and shall thereafter
be the maximum time period or the applicable scope of the
restriction. The Consultant further agrees that such covenants and/or
any portion thereof are severable, separate and independent, and should any
specific restriction or the application thereof, to any person, firm,
corporation, or situation be held to be invalid, that holding shall not affect
the remainder of such provisions or covenants.
15. Notices. Except
as otherwise provided herein, any statement, notice, or other communication
that
the Company or the Consultant may desire or be required to give to the other
shall be deemed sufficiently given or rendered if hand delivered or if sent
by
registered or certified mail, return receipt requested, or by facsimile
transmission, addressed at the addresses hereinafter given or at such other
addresses as the other party shall designate from time to time by prior written
notice, and such notice shall be effective when the same is received or mailed
as herein provided.
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COMPANY:
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CONSULTANT:
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Totowa
Consulting Group, Inc.
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000
Xxxxx Xxxx.
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Xxxxxx,
XX 00000
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Fax:
000-000-0000
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With
a copy to:
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With
a copy to:
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Xxxxxxx
X. Xxxxxx Esq
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000
X. Xxxx Xxxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxx 00000
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Fax:
000-000-0000
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Each
party may change its address for receipt of notices under this Agreement from
time to time by giving written notice of such change in the manner provided
above.
16. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
17. Waiver. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be an estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver
or
estoppel. Neither the failure nor any delay on the part of either
party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right, remedy, power or privilege preclude any other or further exercise
of
the same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect
to
any other occurrence.
18. Headings. The
headings of Sections and paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of
the
provisions of this Agreement.
19. Governing
Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada. This
Agreement is executed in _____ County, New Jersey. Venue for any
action or suit brought hereunder or in connection herewith, or relating hereto,
shall lie with the federal and state courts of competent jurisdiction located
in
______ County, New Jersey.
20. Contract
Terms to be Exclusive. This Agreement contains the sole and
entire agreement between the parties and shall supersede any and all other
agreements between the parties. The parties acknowledge and agree that neither
of them has made any representation with respect to the subject matter of this
Agreement or any other agreement executed between them or any representations
inducing the execution and delivery hereof or any other agreement executed
between them except such representations as are specifically set forth herein
and each of the parties hereto acknowledges that it has relied on its own
judgment in entering into the same. The parties hereto further
acknowledge that any statements or representations that may have heretofore
been
made by either of them to the other are void and of no effect and that neither
of them has relied thereon in connection with its dealings with the
other.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as
of the date first above written.
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COMPANY
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CONSULTANT
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Totowa
Consulting Group, Inc.
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By:
/s/ Xxxxxxx Xxxxxxxx
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By:/s/
Xxxx Xxxxxxxxxx
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Print
Name: Xxxxxxx Xxxxxxxx
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Print
Name: Xxxx Xxxxxxxxxx
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Print
Title: President
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Print
Title: President
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