Exhibit 10.1
CONSULTING AGREEMENT
Consulting Agreement made this 26th day of April, 1999 by and between
U.S. MEDICAL GROUP Inc., a Nevada corporation with offices at , Orlando, FL (the
"Company") and TransGlobal Financial Corporation., a corporation with offices at
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 (the "Consultant").
WITNESSETH:
A. The Company desires to engage the services of the Consultant for
purposes of (i) obtaining consulting and advisory services; (ii) to provide
various strategic planning services and assistance in the implementation thereof
relative to the operations of the Company; and (iii) to assist the Company in
identifying, evaluating and structuring mergers, consolidations, acquisitions,
joint ventures and strategic alliances.
B. Consultant is desirous of performing such services on behalf of
the Company and desires to be engaged and retained by the Company upon the terms
and conditions provided for herein.
NOW, THEREFORE, in consideration of the recitals, promises and
conditions in this Agreement, the Consultant and the Company agree as follows:
1. CONSULTING SERVICES. The Company hereby retains the Consultant on
an exclusive basis, and the Consultant accepts such retention for the following
functions, services and duties:
(a) As mutually determined from time to time by the Consultant
and the Company, during the term specified in paragraph 2 of
this Agreement, the Consultant shall undertake to consult
with and advise the Company, by telephone or in person, as
the Consultant in its sole discretion shall determine, with
respect to financial and business matters, including but not
limited to assistance with fund raising to implement the
Company's business plans, implementation of the Company's
efforts to review capitalization, or pursue mergers,
acquisitions or divestitures and other transactions, on a an
exclusive basis.
(b) Consultant agrees to spend a reasonable amount of time needed
to accomplish its services under this Agreement, and to be
available for telephone calls, meetings and other matters on
as needed basis.
2. TERM. The term of this Consulting Agreement shall be for a three
(3) year period commencing on the date hereof. The Term will renew in 12-month
increments unless either party notifies the other 90 days prior to the
expiration of the Term of the cancellation of this Agreement.
3. COMPENSATION.
3.1 As full consideration for the services to be provided
pursuant to paragraph 1 of this Agreement (and in addition to the expenses
provided for in paragraph 4 hereof), the Company shall pay Consultant the
following fees:
(a) RETAINER FEE: Waived in view of the Company agreeing to pay
Consultant 575,000 shares of its Common Stock for its merger
and acquisition services in the matter of American Mobile
Services, Inc.
(b) MONTHLY FEE: None.
(c) TRANSACTION FEES -
(i) For financing the Company secures from sources
identified by Consultant, the Company will pay a
cash fee at the closing of such financing.
Transaction Fees for equity financing and debt
financing will an amount equal to seven percent
(7%) and three and one-half percent (3.5%)
respectively of any and all funds committed and
available to the Company.
(ii) In the event that the Consultant represents the
Company with respect to a merger, acquisition,
investment, exchange, or other securities or assets
of the Company and/or a merger or acquisition
candidate, then the Company shall pay the
Consultant a Transaction Fee equal to 10% of the
total market value on the day of the closing of
stock, cash, assets and all other property (real or
personal) exchanged or received, directly or
indirectly by the Company or any of its security
holders in connection with any such transaction.
(iii) In the event the Consultant introduces the Company
to a joint venture partner or customer and sales
develop as a result of the introduction, the
Company hereby agrees to pay a fee of two percent
(2.5%) of the net sales revenue generated directly
from this introduction. Net sales shall be cash
receipts less any applicable refunds, returns,
allowances, credits and shipping charges and monies
paid by the Company by way of settlement or
judgement arising out of claims made by or
threatened against the Company. Commission payments
shall be paid on the 15th day of each month
following the receipt of customers' payment. In the
event any adjustments are made to the total sales
after the commission has been paid, the Company
shall be entitled to an appropriate refund or
credit against future payments under this
Agreement.
3.2 All fees to be paid pursuant to this Agreement, except as
otherwise specified, are due and payable to Consultant at the closing or
closings of any transaction specified in paragraph 3 hereof. In the event that
this Agreement shall not be renewed or if terminated for any reason,
notwithstanding any such non-renewal or termination, Consultant shall be
entitled to a full fee as provided under paragraph 3 and expense reimbursement
as provided in paragraph 4 hereof, for any transaction for which the discussions
were initiated
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during the term of this Agreement and which is consummated within a period of
eighteen months after non-renewal or termination of this Agreement.
3.3 The obligation of the Company to pay the fees described in
subparagraph 3 of this Agreement shall be absolute and unconditional as long
Consultant performs its obligations under this Agreement, and shall be payable
without offset, deduction or claim of any kind or character.
3.4 The Company hereby acknowledges and consents that Consultant
may receive additional fees or other compensation from one or more of the
lenders, subscribers, customers, investors or parties to any transaction
described in this Agreement or any sources of funding identified by Consultant,
for various services which may include, in part, services related to this
Agreement.
4. EXPENSES. In addition to the fees payable hereunder, and
regardless of whether any transaction set forth in paragraph 3 hereof is
proposed or consummated, the Company shall reimburse Consultant for Consultant's
travel and out-of-pocket expenses incurred in connection with the services
performed by Consultant pursuant to this Agreement, including without
limitation, hotels, food and associated expenses and long distance calls, but
excluding any expenses incurred by Consultant in connection with any action,
suit or proceeding between Consultant and the Company relating to the services
to be performed by Consultant pursuant to this Agreement.
5. DUTIES OF THE COMPANY.
(a) The Company shall supply the Consultant, on a regular and
timely basis, with all approved data and information about the Company, its
management, its products and its operations, and the Company shall be
responsible for advising the Consultant of any facts which would affect the
accuracy of any prior data and information previously supplied to the Consultant
so that the Consultant may take corrective action.
(b) The Company shall promptly supply the Consultant with: full
and complete copies of all filings with all federal and state securities
agencies; full and complete copies of all stockholder reports and
communications, whether or not prepared with the Consultant's assistance; all
data and information supplied to any analyst, broker-dealer, market maker or
other member of the financial community; and all product/services brochures,
sales materials, etc.
(c) The Company shall promptly notify the Consultant of the
filing of any registration statement for the sale of securities and of any
other event which imposes any restrictions on publicity.
(d) The Company shall contemporaneously notify the Consultant
if any information or data being supplied to the Consultant has not been
generally released or promulgated.
6. REPRESENTATION AND INDEMNIFICATION BY COMPANY.
(a) The Company shall be deemed to make a continuing
representation of the accuracy of any and all material facts, material,
information, and data which it supplies to the Consultant and the Company
acknowledges its awareness that the Consultant will rely on such continuing
representation in disseminating such information and otherwise performing
duties under this Agreement.
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(b) The Consultant, in the absence of notice in writing from
the Company, will rely on the continuing accuracy of material, information
and data supplied by the Company.
(c) The Company hereby agrees to indemnify the Consultant
against, and to hold the Consultant harmless from, any claims, demands,
suits, loss, damages, etc. arising out of the Consultant's reliance upon the
accuracy and continuing accuracy of such facts, material, information and
data, unless the Consultant has been negligent in fulfilling his duties and
obligations hereunder.
(d) The Company hereby agrees to indemnify the Consultant
against, and to hold the Consultant harmless from, any claims, demands,
suits, loss, damages, etc. arising out of the Consultant's reliance on the
general availability of information supplied to the Consultant and the
Consultant's ability to promulgate such information, unless the Consultant
has been grossly negligent in fulfilling his duties and obligations hereunder.
7. REPRESENTATION AND INDEMNIFICATION BY CONSULTANT.
(a) The Consultant agrees to provide its services hereunder in
a good and workmanlike manner consistent with the performance standards
observed by other professionals undertaking such functions.
(b) The Consultant agrees that it will not release or
disseminate any information pertaining to the Company without providing the
Company with an advance copy thereof and obtaining authorization for such
release and dissemination.
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(c) The Consultant hereby agrees to indemnify the Company
against, and to hold the Company harmless from, any claims, demands, suits,
loss, damages, etc. arising out of any inaccurate statement or misrepresentation
provided that such indemnification shall not pertain to any information provided
by or attributable to the Company.
8. RELATIONSHIP OF PARTIES. The Consultant is an independent
contractor, responsible for compensation of its agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workers compensation
insurance. This Agreement does not establish any partnership, joint venture, or
other business entity or association between the parties, and neither party is
intended to have any interest in the business or property of the other.
9. TERMINATION. This Agreement may not be terminated by either party
prior to the expiration of the term provided in Paragraph 2 above except as
follows:
(a) Upon failure of the other party to cure a material default
under, or a breach of, this Agreement within thirty (30) days after written
notice is given as to such breach by the terminating party;
(b) Upon the bankruptcy or liquidation of the other party,
whether voluntary or involuntary;
(c) Upon the other party taking the benefit of any insolvency
law; and/or;
(d) Upon the other party having or applying for a receiver
appointed for all or a substantial part of such party's assets or business.
10. DISCLAIMER BY CONSULTANT. The Consultant makes no representation
that (a) the price of the Company's publicly-traded securities will increase,
(b) any person will purchase securities in the Company as a result of the
contract, or (c) any investor will lend money to or invest in or with the
Company.
11. NON-ASSIGNABILITY. The rights, obligations and benefits
established by this Agreement shall not be assignable by either party hereto
except with the consent of the other. This Agreement shall, however, be binding
upon and shall inure to the benefit of the parties and their successors.
12. GOVERNING LAW. The terms and provisions of this Agreement shall be
governed by and construed under the laws of the State of Florida.
13. NOTICE. Notice hereunder shall be in writing and shall be deemed
to have been given (a) at the time when deposited for mailing in a receptacle
under the control of the United States Postal Service, by registered or
certified mail, prepaid, return receipt requested, or (b) on
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the business day following deposit with a reputable overnight courier for
overnight delivery; each addressed to the respective party at the address of
such party first above written or at such other address as such party may fix by
notice given pursuant to this paragraph.
14. NO OTHER AGREEMENTS. This Agreement supersedes all prior
understandings, written or orally given and constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof. No waiver,
modification or termination of this Agreement shall be valid unless in writing
signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
U.S. MEDICAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
TRANSGLOBAL FINANCIAL CORPORATION
By: /s/ Xxxx X. Mustafoglu
-----------------------------------
Xxxx X. Mustafoglu
President
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