Exhibit 6(i)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective this 19th day
of March, 1999 by and between Xxxxxxxx X. Xxxxx ("Consultant"), and Genesis
Capital Corporation of Nevada, a Nevada Corporation, ("Client").
PREMISES
WHEREAS, Client wishes to obtain the consulting services of Consultant.
WHEREAS, Consultant is in the business of providing consulting and
other services to firms, who desire to make complex financial and
structural changes to their firms.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which is expressly
acknowledged, Client and Consultant agree as follows:
I. ENGAGEMENT OF CONSULTANT - Client hereby retains Consultant to serve
Client in the following areas:
A. Consulting with Client in the requirements of becoming a
non-reporting public entity;
B. Consulting with and assisting Client in the techniques and
preparation of documents for raiising capital and acquiring
financing, loans and other sources of capital; and
C. Use his best efforts in the location or identification of
various assets for potential acquisition and possible entities
for merger and acquisition possibilities.
All of the foregoing services collectively are referred to herein as
the "Consulting Services."
II. TERM - This Agreement shall have a term of one (1) year commencing on
the date of this Agreement ("Initial Term"). In the event that Client
desires to engage Consultant further this Agreement shall continue on a
month to month basis after the expiration of the Initial Term for the
additional terms provided in an Addendum to this Agreement executed by
both parties, should the parties be so interested at any particular
point.
III. COMPENSATION - In consideration of the Consulting Services contemplated
herein, Consultant shall be issued the following compensation, but only
upon the consummation of a merger or acquisition by the Client:
Client shall transfer to Consultant 60,000 shares of Client's
common stock, which stock is acknowledged to bear a
restrictive legend pursuant to the provisions of Rule 144.
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IV. EXPENSES - Client shall be responsible for all expenses associated with
completing the Consulting Services contemplated herein. The Expenses
include but are not limited to the following:
A. All fees associated with the filing of any forms required by
state or federal agencies to bring about the intent of this
Agreement;
B. All long distance telephone and facsimile costs incurred by
Consultant and all copying, mail and Federal Express or other
express delivery costs incurred by Consultant and all other
expenses reasonably incurred by Consultant in rendering the
Consulting Services contemplated by this Agreement.
C. Any and all fees associated with obtaining or providing
Consultant with audited financial statements of Client.
Consultant will not perform any accounting services related to
Client without obtaining audited financial statements (NOTE:
The cost of this item must be paid for directly by Client, and
does not come out of the Escrow Account reserved for
expenses.)
D. Any and all travel, airfare and hotel expenses which
Consultant may reasonably incur in relation to the performance
of the Consulting Services contemplated herein. While
circumstances may change, the parties do not anticipate any
travel during this engagement.
V. BEST EFFORTS - Consultant agrees that it will at all times faithfully
and to the best of its experience, ability and talents, perform all the
duties that may be required of and from Consultant pursuant to the
terms of this Agreement. Consultant does not guarantee that its efforts
will have any impact on Client's business or that any subsequent
financial improvement will result from Consultant's efforts.
VI. CLIENT'S REPRESENTATIONS - Client represents, warrants and covenants to
Consultant that each of the following are true and complete as of the
date of this Agreement:
A. Entity Existence. Client is a corporation or other legal entity duly
organized, validly existing, and in good standing under the laws of the
state of their formation, with full power and authority and all necessary
governmental authorizations to own, lease and operate property and carry on
their business as it is now being conducted. Client is duly qualified to do
business in and is in good standing in every jurisdiction in which the
nature of its business or the property owned or leased by it makes such
qualifications necessary.
B. Involvement in Proceedings or Investigations by Securities Regulatory
Authorities. Client
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or its officers and 10% or more owners, and any entity which Client or its
affiliates or officers control, has not been previously involved in any
litigation, investigations or proceedings with the United States Securities
and Exchange Commission or any other State or Foreign Securities Regulatory
organization, and is not presently indicted and/or was never convicted of
fraud or any similar crime involving any allegation of dishonesty or theft,
nor found guilty or is currently involved in legal proceedings of such
conduct in a civil context, other than as disclosed and with full and
complete details attached hereto.
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C. Disclosure Documents. Client has or will cause to be delivered, concurrent
with the -------------------- execution of this Agreement, copies of its
entity records as requested to effectuate any transaction contemplated
herein. Documents which Client agrees to provide to Consultant shall
include but not be limited to audited financial statements for the past
three years of Client's operations or as long as Client has been in
operation, whichever is less, which have been audited by a United States
Securities and Exchange Commission peer approved financial auditor, any
entity resolutions and any and all other documents which may in any way
relate to the transactions contemplated in this Agreement.
D. Client's Authority for Agreement. The execution and delivery of this
Agreement and the -------------------------------- consummation of the
transactions contemplated herein have been duly authorized by the Client.
This Agreement has been duly executed and delivered by Client and
constitutes the valid and legally binding obligation of Client enforceable
in accordance with its terms, except to the extent that enforceability may
be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditor's rights generally. To
the best of Client's knowledge, after due inquiry, the execution and
delivery of this agreement and the consummation of the transactions
contemplated herein will not conflict with any mortgage, indenture, lease,
contract, commitment, agreement, or other instrument, permit, concession,
grant, franchise, license, judgement, order, decree, statute, law,
ordinance, rule or regulation applicable to Client or any of its properties
or assets.
E. Consents and Authorizations. Any consent, approval, order or authorization
of, or registration, declaration, compliance with or filing with any
governmental or regulatory authority required in connection with the
execution and delivery of this Agreement to permit the consummation by
Client and Consultant of the transactions contemplated herein shall be
accomplished in a timely manner and in accordance with federal and/or state
laws where applicable.
F. Minute Books. The minute books of Client contain full and complete minutes
of all meetings (or written consents in lieu thereof).
G. Nature of Representations. No representation or warranty made by Client in
this Agreement, nor any document or information furnished or to be
furnished by Client to the Consultant in connection with this Agreement,
contains or will contain any untrue statement of material fact, or omits or
will omit to state any material fact necessary to make the statements
contained therein not misleading, or omits to state any material fact
relevant to the transactions contemplated by this Agreement.
H. Independent Legal and Financial Advice. Consultant is not a law firm nor an
accounting firm. Client represent that it has not nor will it rely upon any
legal or financial representation made by Consultant, and that Client has
and will continue to seek the independent advice of legal and financial
counsel regarding all material aspects of the transactions contemplated by
this Agreement, including the review of all documents provided by
Consultant to Client and all opportunities Consultant introduces to Client.
Client acknowledge that any attorneys, accountants and other advisors
employed by
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Consultant represent the interests of Consultant solely, and that no
representation or warranty has been given to Client by Consultant as to any
legal, tax, accounting, financial or other aspect of the transactions
contemplated by this Agreement.
VII. NON-CIRCUMVENTION- Client agrees to not enter into any other agreements
to provide services for which Consultant has provided services, or
enter into any transaction involving a business opportunity or asset
introduced to Client by Consultant, without compensating Consultant
pursuant to this Agreement. Neither will Client terminate this
Agreement solely as a means to avoid paying Consultant compensation
earned or to be earned, or in any other was attempt to circumvent
Consultant.
VIII. TERMINATION OF AGREEMENT BY CONSULTANT - Consultant may terminate this
Agreement if any of the following occurs:
A. Payments due under this Agreement are not timely made.
B. In the judgment of Consultant, Client's actions or conduct
make it unreasonable for Consultant to perform under this
Agreement. Such acts include, and are or may be perceived as
being in the nature of dishonesty, illegal activities,
activities harmful to the reputation of the Consultant, and
activities which may create civil or criminal liability for
the Consultant.
C. Consultant makes a bona fide decision to terminate its business
and liquidate its assets.
D. Client misrepresents its corporate or other entity standing,
power to enter and bind itself to this Agreement,
misrepresentation of its guarantees as indicated below, or any
other concealed or misrepresented material fact which would
decrease the binding effect of this Agreement on Client.
E. If after conduct of a due diligence investigation, Consultant
concludes that an intended offering, or other action
contemplated under this Agreement (the "Transaction"), is not
viable, Consultant may give ten (10) days written notice to
Client stating in particular why the Transaction is not
viable, and if after ten (10) days of receipt of the written
notice, Client insists that Consultant continue performance on
the Transaction, Consultant may then terminate the Agreement,
returning all monies received after deductions as indicated in
Subsection "H" below.
F. An unanticipated material change in federal or state laws
and/or regulations makes continued performance under this
Agreement unreasonable.
G. Breach of any provision of this Agreement, and in particular,
but not limited to, not providing audited financial statements
in a timely manner.
H. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of the charges for the work
actually performed up to the time of termination at its normal
consulting rates. Consultant shall also be entitled to
reimbursement of any expenses
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incurred, up to the time of termination of this Agreement
along with any expenses incurred as a result of the
termination.
IX. TERMINATION OF AGREEMENT BY CLIENT - Client may terminate this
Agreement under the following conditions:
A. Consultant fails to follow Client's reasonable instructions.
Client must advise Consultant that his actions or inactions
are unacceptable and give Consultant thirty (30) days in which
to comply. If Consultant fails to comply within thirty (30)
days, Consultant may be terminated hereunder by Client's
service of notice of termination to Consultant.
B. If, in the judgment of the Board of Directors of Client,
Consultant's actions or conduct would make it unreasonable to
require Client to retain Consultant. Such acts include and are
in the nature of, dishonesty, illegal activities, activities
harmful to the reputation of the Client and activities which
create civil or criminal liability for the Client.
C. Notwithstanding the termination of this Agreement, Consultant
shall be entitled to receipt of all compensation owed pursuant
to Section "H" of Article VIII above up to the time of
termination of this Agreement, for work actually performed.
Consultant shall also be entitled to reimbursement of any
expenses incurred, up to the time of termination of this
Agreement, along with any expenses incurred as a result of the
termination.
X. UTILIZATION OF ATTORNEYS - Consultant may utilize attorneys to assist
him in preparing the documentation required to effectuate the
transactions contemplated by this Agreement. The attorneys utilized by
Consultant represent only Consultant, and Consultant's interest in
providing consulting services and do not in an way represent the
interests of any party to this Agreement other than Consultant's.
Client are advised, and have represented, that they will seek
independent legal counsel to review all documentation provided to it by
Consultant.
XI. CONSULTANT IS NOT A BROKER-DEALER - Consultant has fully disclosed to
Client that he is not a broker-dealer and does not have or hold a
license to act as such. None of the activities of consultant are
intended to provide the services of a broker-dealer to the Client and
Client has been informed that a broker-dealer will need to be engaged
to perform any such services. Client has full and free discretion in
the selection of a broker-dealer.
XII. NONDISCLOSURE OF CONFIDENTIAL INFORMATION - In consideration for the
Client entering into this Agreement, Consultant agrees that the
following items used in the Client's business are secret, confidential,
unique, and valuable, and disclosure of any of the items to anyone
other than Consultant's officers, agents, or authorized employees may
cause Client irreparable injury.
A. Non-public financial information, accounting information,
plans of operations, possible public offerings public
announcement.
B. Customer lists, call lists, and other confidential customer
data;
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C. Memoranda, notes or records concerning the technical an
creative processes conducted by Client.
D. Sketches, plans, drawings and other confidential research and
development data or;
E. Manufacturing processes, chemical formulae, and the compo-
sition of Client's products.
Consultant shall have no liability to the Client with respect to the
use or disclosure to others not party to this Agreement, of such
information as Consultant can establish to:
A. have been publicly known;
B. have become known, without fault on the part of Consultant,
subsequent to disclosure by Client of such information to
Consultant;
C. have been otherwise known by Consultant prior to communication
by the Client to Consultant of such information, or
D. have been received by Consultant at any time from a source
other than Client lawfully having possession of such
information.
XIII. PLACE OF SERVICES - The Consulting Services contemplated to be
performed by Consultant will be performed through Consultant's offices;
however, it is understood and expected that Consultant may make
contacts with persons and entities in any other place deemed
appropriate by Consultant.
XIV. NONEXCLUSIVE SERVICES - Client acknowledge that Consultant is currently
providing services of the same or similar nature to other parties and
Client agree that Consultant is not prevented or barred from rendering
services of the same nature or a similar nature to any other individual
or entity.
XV. ALL PRIOR AGREEMENTS TERMINATED - This Agreement comprises the entire
agreement and understanding between the parties hereto at the date of
this Agreement as to the subject matter hereof and supersedes and
replaces all proposals, prior negotiations and agreements, whether oral
or written, between the parties hereto in connection with the subject
matter hereof, with the sole exception of an Escrow Agreement to be
executed on the same date. None of the parties hereto shall be bound by
any conditions, definitions, warranties or representations with respect
to the subject matter of this Agreement other than as expressly
provided in this Agreement unless the parties hereto subsequently agree
to vary this Agreement in writing, duly signed by authorized
representatives of the parties hereto.
XVI. CONSULTANT IS NOT AN AGENT OR EMPLOYEE OF CLIENT - Consultant's
obligations under this agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or
bind Client. For the purposes of this Agreement, Consultant is an
independent contractor. All final decisions with respect to acts of
Client or their affiliates, whether or not made pursuant to or in
reliance on information or advice furnished by Consultant hereunder,
shall
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be those of Client or such affiliates, and Consultant, its employees or
agents shall under no circumstances be liable for any expense incurred
or loss suffered by Client as a consequence of such action or
decisions.
XVII. CONTINUE OPERATIONS IN SUBSTANTIALLY SAME MANNER - Client will not
transfer, sell or hypothecate, assign or distribute any significant
portion of its assets currently in its possession except upon written
notice to the parties to this Agreement, and Client agrees to continue
operations in substantially the same manner as it is presently
functioning, until this agreement has been consummated.
XVIII. MISCELLANEOUS.
A. Authority. The execution and performance of this Agreement
have been duly authorized by all requisite corporate action.
This Agreement constitutes a valid and binding obligation of
the parties hereto.
B. Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
C. Waiver. No term of this Agreement shall be considered waived
and no breach excused by either party unless made in writing.
No consent waiver or excuse by either party, express or
implied shall constitute a subsequent consent, waiver or
excuse.
D. Assignment
1. The rights and obligations of both parties under this
Agreement shall inure to the benefit of and shall be
binding upon its successors and assigns. There shall
be no rights of transfer or assignment of this
Agreement by either party except with the prior
written consent of the other party.
2. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the
parties and their successors, any rights or remedies
under this Agreement.
E. Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal or when sent by facsimile
transmission, charges prepaid provided that the communication
is addressed:
1. In the Case of Consultant to:
Xxxxxxxx X. Xxxxx
Damas 000
Xxx Xxxx Xxxxxxxxxxx
Xxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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2. In the Case of Client to:
Genesis Capital Corporation of Nevada
00000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address designated by Client in writing to
receive notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any
heading and the text of this Agreement, the text shall
control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties
with respect to the transaction contemplated by the Agreement.
It may be executed in any number of counterparts but the
aggregate of the counterparts together constitute only one and
the same instrument.
H. Effect of Partial Invalidity. In the event that any one or
more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or un-enforceability
shall not affect any other provisions of this Agreement, but
this Agreement shall be constructed as if it never contained
any such invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance
of this Agreement shall be governed by the laws of the State
of Texas, without regard to its law on the conflict of laws.
Any dispute arising out of this Agreement shall be brought in
a court of competent jurisdiction in the State of Texas. The
parties exclude any and all statutes, law and treaties which
would allow or require any dispute to be decided in another
forum or by other rules of decision than provided in this
Agreement.
J. Attorney's Fees. If any action at law or in equity, including
an action for declaratory --------------- elict, is brought to
enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover actual
attorney's fees court costs, and other costs incurred in
proceeding with the action from the other party. The
attorney's fees, court costs or other costs, may be ordered by
the court in its decision of any action described in this
paragraph or may be enforced in a separate action brought for
determining attorneys fees, court costs, or other costs.
Should either party be represented by in-house counsel all
parties agree that party may recover attorney's fees incurred
by that in-house counsel in an amount equal to that attorney's
normal fees for similar matters, or, should that attorney not
normally charge a fee, by the prevailing rate charged by
attorneys with similar background in that legal community.
K. Time is of the Essence. Time is of the essence of this Agree-
ment and of each and every provision hereof
L. Mutual Cooperation The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement, and shall
execute such other and further documents and take
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such other and further actions as may be necessary or
convenient to effect the transactions described herein.
M. Indemnification. Client and Consultant agree to indemnify,
hold harmless and, at the party ---------------- seeking
indemnification's sole option, defend the other from and
against all demands, claims, actions, losses, damages, liabil-
ities, costs and expenses, including without limitation,
interest, penalties, court fees, and attorney's fees and
expenses asserted against or imposed or incurred by either
party by reason of or resulting from a breach of any repre-
sentation, warranty, covenant condition or agreement of the
other party to this Agreement. Neither party shall be respon-
sible to the other party' for any consequential or punitive
damages.
N. No Third Party Beneficiary. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person,
other than the parties hereto and their successors, any rights
or remedies under or by reason of this Agreement, unless this
Agreement specifically states such intent.
O. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first written above.
Xxxxxxxx X. Xxxxx
/s/
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Genesis Capital Corporation of Nevada
/s/
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Xxxxxxxx X. Xxxxx, President
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