EXHIBIT 10.18
ACQUISITION CONSULTING AGREEMENT
THIS ACQUISITION CONSULTING AGREEMENT (the "Agreement") is entered into as
of the 28th day of January, 1998 (the "Effective Date") by and between CAPITAL
TITLE GROUP, INC., a Delaware corporation (the "Company" or "Capital Title"),
and XXXXXX CAPITAL CORPORATION, an Arizona corporation ("MCC").
In consideration of the mutual premises, covenants and undertakings set
forth herein, the parties hereby agree as follows:
I. RESPONSIBILITIES OF MCC
1.1 Subject to the terms and conditions hereof, Capital Title hereby
retains MCC to provide acquisition consulting services to Capital Title and MCC
agrees to provide such services to Capital Title. MCC shall assist with the
identification of acquisition candidates and with negotiating and structuring
acquisitions all in accordance with Capital Title's expansion plans as may be in
effect from time to time.
1.2 Capital Title acknowledges and understands that MCC, in order to
perform its services effectively under this Agreement, requires the prompt
receipt of all material information with respect to Capital Title, its
operations and prospects. Accordingly, Capital Title agrees to furnish promptly
to MCC copies of all publicly available reports and filings made with the
Securities and Exchange Commission (the "SEC"), all communications with
stockholders (in the stockholders' capacity as a stockholder) and all reports
received from Capital Title's auditors that have significance to the scope of
MCC's services hereunder; provided, however, Capital Title shall have no
obligation to provide MCC with any information that Capital Title deems
confidential. Capital Title recognizes the necessity of promptly notifying MCC
of all material developments concerning Capital Title, its business and
prospects and to supply MCC with sufficient information necessary for MCC to
make a determination as to its compliance with its own procedures as well as any
legal requirements. MCC agrees that it shall keep confidential all information
received from Capital Title until such time that MCC is authorized to release
such information.
II. COMPENSATION
In the event the Company effectuates a corporate restructuring, merger,
joint venture, or acquisition during the term hereof, or such a transaction
occurs on or prior to one year from the date of termination of this Agreement
(irrespective of any reason for such termination), then the Company hereby
agrees to pay the following consideration, which payment shall be due and
payable eighty (80%) percent in cash and twenty (20%) percent in common stock
(with registration rights) on the date of any such closing with respect thereto:
Capital Title Group, Inc.
Acquisition Consulting Agreement
January 28, 1998
5% of the consideration from $1 and up to $2,000,000, plus
4% of the consideration in excess of $2,000,000 and up to
$10,000,000, plus
3% of the consideration in excess of $10,000,000 and up to
$20,000,000, plus
2% of the consideration in excess of $20,000,000 and up to
$30,000,000, plus
1% of the consideration in excess of $30,000,000.
III. EXPENSE REIMBURSEMENT
Capital Title agrees to reimburse MCC for all reasonable out-of-pocket
expenses including but not limited to, the cost of telephone calls, travel,
facsimile transmissions, translation, interpretation, paper duplication, postage
and delivery services, or fees of counsel, incurred in connection with the
performance by Xxxxxx of its duties as contemplated by this Agreement. All
out-of-town travel, counsel or third party consultant fees, and other
significant expenses over $1,000 will be approved by Capital Title in advance.
IV. TERM
The term of this Agreement shall be for two years commencing as of the date
first written above and terminating one day prior to the 2nd anniversary hereof.
Thereafter, this Agreement shall be renewed for subsequent two year terms upon
mutual agreement of the parties.
V. ASSIGNMENT AND TRANSFER OF OBLIGATIONS
In the event that Capital Title transfers or otherwise conveys all or
substantially all of its assets (including without limitation the assets of its
subsidiaries) or grants the authority to operate its business(es) or affiliated
business(es) to a new entity, whether a corporation, partnership, or natural
person ("New Entity") all of Capital Title's obligations under this Agreement
will be binding upon such New Entity and Capital Title will not enter into or
create an agreement, undertaking or legal obligation with a New Entity without
requiring such New Entity to accept and satisfy Capital Title's obligations
under this Agreement. Notwithstanding anything to the contrary contained in this
Article V, this Article V shall not be applicable and will be of no force or
effect if compliance with this Article V would result in the violation of any
law or statute, the breach of any Agreement to which Capital Title or its
affiliates is a party, or the inability of Capital Title to operate in
accordance with its usual and customary practices.
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Capital Title Group, Inc.
Acquisition Consulting Agreement
January 28, 1998
VI. INDEMNIFICATION
6.1 In connection with the terms and agreements set forth herein, Capital
Title agrees to indemnify and hold harmless MCC, its officers, directors,
employees, agents and legal counsel (collectively, the "MCC Parties"), against
any and all losses, claims, damages, liabilities or costs (and any reasonable
legal or other expense in giving testimony or furnishing documents in response
to a subpoena or otherwise), including the costs of investigation, preparing or
defending any action or claim, directly or indirectly, caused by, relating to,
based upon or arising out of this Agreement. Capital Title also agrees that the
MCC Parties shall not have any liability (whether direct or indirect, in
contract, tort or otherwise) to Capital Title for or in connection with the
engagement of MCC.
6.2 MCC agrees to indemnify Capital Title and hold harmless Capital Title,
its officer, directors, employees, agents and legal counsel (collectively, the
"Capital Title Parties") against any and all liabilities, expenses, costs and
damages (including the cost of defense) alleged against or incurred by any
Capital Title Party in connection with this Agreement to the extent that such
liability, expense, cost, or damage was incurred or is alleged to have been
incurred in whole or in part, directly or indirectly, due to any action or
omission to act by MCC, which action or omission is determined to be the result
of MCC's gross negligence or wilful misconduct.
6.3 If any action, proceeding, or investigation is commenced or claim is
made as to which either a MCC Party or a Capital Title Party proposes to demand
indemnification, the party claiming indemnification (the "Indemnified Party")
will notify the party against whom indemnification is claimed (the "Indemnifying
Party") with reasonable promptness. The Indemnifying Party reserves the right to
assume the defense of the Indemnified Party with counsel of its choosing, which
counsel shall be reasonably acceptable to the Indemnified Part. The Indemnifying
Party will not be liable for any settlement of any claim against any Indemnified
Party made without the Indemnifying Party's written consent.
VII. NOTICES
All notices and other written communications required to be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if delivered to the addressee in person or mailed by registered or certified
mail, return receipt requested, to the following addresses:
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Capital Title Group, Inc.
Acquisition Consulting Agreement
January 28, 1998
If to MCC: Xx. Xxxx X. Xxxxxx
Chairman and CEO
Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Capital Title: Xx. Xxxxxx X. Head
Chairman and CEO
Capital Title Group, Inc.
00000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Either party may change the address at which notice is to be given by notifying
the other party in writing. Notices shall be deemed delivered upon delivery, if
personally delivered, or, if mailed, three (3) days after deposit in the Untied
States mail.
VIII. APPLICABLE LAW
The validity and interpretation of this Agreement shall be governed by the
laws of the State of Arizona, without giving effect to the State of Arizona's
choice of law principles, and all actions arising under this Agreement or
arising out of the operative facts represented by services performed pursuant to
this Agreement shall be resolved in the courts of the State of Arizona.
IX. MISCELLANEOUS
9.1 ASSIGNMENT. MCC shall not assign this Agreement to a third party
without the prior written consent of a duly authorized representative of Capital
Title, which consent shall not be unreasonably withheld.
9.2 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
hereof and that no understandings or agreements, verbal or otherwise, exist
between the parties except as set forth in the Agreement.
9.3 AMENDMENT. Any modifications to the Agreement must be reduced to
writing by both parties, and attached to the Agreement to be effective.
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Capital Title Group, Inc.
Acquisiton and Consulting Agreement
January 28, 1998
9.4 SEVERABILITY. In the event any term or provision of this Agreement is
declared to be invalid or illegal for any reason, this Agreement shall remain in
full force and effect and the same shall be interpreted as though such invalid
and illegal provision were not a part hereof. The remaining provisions shall be
construed to preserve the intent and purpose of this Agreement and the parties
shall negotiate in good faith to modify the provisions held to be invalid or
illegal to preserve each party's anticipated benefits thereunder.
9.5 TITLES AND SUBTITLES. The titles of articles and sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
9.6 DELAYS OR OMISSIONS. No delay or omission to exercise any right, power
or remedy accruing to any party shall impair any such right, power or remedy of
such party, nor shall it be construed to be a waiver of any breach or default
under this Agreement, or an acquiescence therein, or in any similar breach or
default thereafter occurring; nor shall any delay or omission to exercise any
right, power or remedy or any waiver of any single breach or default be deemed a
waiver of any other right, power or remedy or breach or default theretofore or
thereafter occurring.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CAPITAL TITLE GROUP, INC.
By: /s/ Xxxxxx X. Head
-----------------------------
Xxxxxx X. Head
Chairman and CEO
XXXXXX CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
Chairman and CEO
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