Exhibit 10.1
AGREEMENT TO ENGAGE CAPITAL CONSULTING, INC
AS FINANCIAL CONSULTANTS
Capital Consulting, Inc. ("CCI" or the "Consultant") hereby submits to NXPN this
Financial Consulting Agreement (the "Agreement") outlining the terms pursuant to
which CCI would be willing to act as Financial Consultants.
I. ENGAGEMENT
NXPN hereby engages and retains CCI as Financial Consultants to perform the
Services (as that term is hereinafter defined) and CCI hereby accepts such
appointment on the terms and subject to the conditions hereinafter set
forth and agrees to use its best efforts in providing such services.
II. INDEPENDENT CONTRACTOR
CCI shall be, and in all respects be deemed an independent contractor in
the performance of its duties hereunder, any law of any jurisdiction to the
contrary notwithstanding.
A. CCI shall be solely responsible for making all payments to and on
behalf of its employees, subcontractors, including those required by
law, and NXPN shall in no event be liable for any debts or other
liabilities of CCI.
B. CCI shall not, by reason of this Agreement or the performance of the
Services, be or be deemed to be, an employee, agent, partner,
co-adventurer or controlling person of NXPN, and CCI shall have no
power to enter into any agreement on behalf of, or otherwise bind
NXPN. Without limiting the foregoing, CCI shall not enter into any
contract or commitment on behalf of NXPN.
C. Subject to Section II D hereof, CCI shall not have or deemed to have,
fiduciary obligations or duties to NXPN and shall be free to pursue,
conduct and carry on for its own account (or the account of others)
such activities, employments, ventures, business and other pursuits as
CCI in its sole, absolute and unfettered discretion, may elect.
D. Notwithstanding the above, no activity, employment, venture, business
or other pursuit of CCI during the term of this Agreement shall
conflict with CCI's obligations under this Agreement or be adverse to
NXPN's interests during the term of this Agreement.
III. SERVICES
CCI agrees to serve as Financial Consultants to NXPN and to provide and/or
perform the following, hereafter collectively referred to as the
"services":
A. Complete an analysis of NXPN's business and industry, and follow with
a comprehensive background report that summarizes NXPN's corporate and
financial profile (the "Corporate Profile") that shall be available
for distribution to potential investors, underwriters, business
partners, or others, as NXPN shall deem appropriate.
B. Work with NXPN, its counsel or other representatives to revise and/or
draft any other documents that may be necessary in NXPN's efforts to
secure additional equity participants or to seek M&A candidates to
increase its business.
C. Assist NXPN in efforts to seek additional business relationships that
will be of benefit to NXPN. Advise NXPN and/or any of its affiliates
in its negotiations in pursuing a form of business combination, such
as joint venture, licensing agreement, product sales, and/or marketing
distribution.
D. CCI shall devote such time and effort, as it deems commercially
reasonable and adequate under the circumstances to the affairs of NXPN
to render the consulting services contemplated by this agreement. CCI
is not responsible for the performance of any services, which may be
rendered hereunder without NXPN providing the necessary information in
writing prior thereto, nor shall CCI include any services Certified
Public Accountant. CCI cannot guarantee results on behalf of NXPN, but
shall pursue all reasonable avenues available through its network of
contacts. At such time as an interest is expressed by a third party in
NXPN's needs, CCI shall notify NXPN and advise it as to the source of
such interest and any terms and conditions of such interest. The
acceptance and consumption of any transaction is subject to acceptance
of the terms and conditions by NXPN in its sole discretion. It is
understood that a portion of the compensation paid hereunder is being
paid by NXPN to have CCI remain available to advise it on transactions
on an as-needed basis.
E. In conjunction with the Services, CCI agrees to:
1. Make itself available to the officers of NXPN at a mutally agreed
upon place during normal business hours for reasonable periods of
time, subject to reasonable advance notice and mutually
convenient scheduling, for the purpose of advising NXPN in the
preparation of such reports, summaries, corporate and/or
transaction profiles, due diligence packages and/or material and
documentation as shall be necessary, in the opinion of CCI, to
properly present NXPN to other entities and individuals that
could be of benefit to NXPN.
2. Make itself available for telephone conferences with the
principal financial sales and/or operating officer(s) of NXPN
during normal business hours.
3. Advise NXPN regarding company operations, staffing, strategy, and
other issues related to building shareholder value as NXPN may
reasonably request, consistent with the provisions of this
agreement.
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IV. EXPENSES
A. It is expressly agreed and understood that each party shall be
responsible for its own normal and reasonable out-of-pocket expenses
which shall include: accounting, long distance communication, and the
printing and mailing of materials between the parties hereto.
B. Any pre-approved travel expenses incurred by CCI in the rendering of
their services hereunder shall be the responsibility of NXPN
V. COMPENSATION
In consideration for the services, NXPN agrees that CCI shall be entitled
to compensation as follows:
A. February 2009 through July 2009, CCI shall receive $10,000 per month.
B. August 2009 through January 2009, CCI shall receive $15,000 per month.
VI. REPRESENTATION, WARRANTIES AND COVENANTS
A. SEC & LEGAL COMPLIANCE. CCI hereby represents that it has in place
policies and procedures relating to, and addressing, with the
commercially reasonable intent to ensure compliance with, applicable
securities laws, rules and regulations, including but not limited to:
1. The use, release or other publication of forward-looking
statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act.
2. Disclosure requirements outlined in Section 17B of the Exchange
Act regarding the required disclosure of the nature and terms of
CCI's relationship with NXPN in any and all CCI literature or
other communication(s) relating to NXPN, including but not
limited to: Press Releases, letters to investors and telephone or
other personal communication(s) with potential or current
investors.
CCI further acknowledges that by the very nature of its relationship with
NXPN it will, from time to time, have knowledge of or access to material
non-public information (as such term defined by the Exchange Act) CCI
hereby agrees and covenants that:
1. CCI will not make any purchases or sales on the stock of NXPN
based on such information.
2. CCI will utilize its commercially reasonable efforts to safeguard
and prevent dissemination of such information to third parties
unless authorized in writing by NXPN to do so as may be necessary
in the performance of its Services under this Agreement.
3. CCI is not a "broker" or a "dealer" as defined under any
applicable federal and/or state securities laws; CCI shall not
engage in any acts for which it is requires to be a
broker/dealer; CCI shall solely act to introduce "parties" to the
company and shall not engage in any sales efforts in connection
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with any investment by any person or entity in the company; CCI
shall not give any advice to anyone regarding the valuation of,
potential return on, or the terms of any investment in, any
securities of NXPN, except as authorized by the company. CCI
makes no representations, warranties or guarantees of any specifi
results or success.
4. NXPN will not, in any way, utilize or otherwise include such
information, in actual form or in substantive content, in its
analysis for, preparation of or release of any CCI literature or
other communication(s) relating to NXPN, including, but not
limited to: Press Releases, letters to investors and telephone or
other personal communication(s) with potential or current
investors.
B. EXECUTION. The execution, delivery and performance of this Agreement,
in the time and manner herein specified, will not conflict with,
result in breach of, or constitute a default under any existing
agreement, indenture, or other instrument to which either NXPN or CCI
is a party or by which either entity may be bound or effected.
C. NON-CIRCUMVENT. NXPN hereby irrevocably agrees not to circumvent,
avoid, bypass, or obviate, directly or indirectly, the intent of this
agreement, to avoid payment of fees in any transaction with any
corporation, partnership or individual introduced by CCI to NXPN, in
connection with any project, any loans or collateral, or other
transaction involving any products, transfers or services, or
additional, renewal extension, rollover, amendment, renegotiations,
new contracts, parallel contracts/agreements, or third party
assignments thereof.
D. TIMELY APPRISES. NXPN shall use its commercially reasonable efforts to
keep CCI up to date and apprised of all business, market and legal
developments related to NXPN and its operations and management.
1. Accordingly, NXPN shall provide CCI with copies of all
amendments, revisions and changes to its business and marketing
plans, bylaws, articles of incorporation, private placement
memoranda, key contracts, employment and consulting agreements
and other operational agreements.
2. NXPN shall promptly notify CCI of all new contracts, agreements,
joint ventures or filings with any state, federal or local
administrative agency, including without limitation, the SEC,
NASD or state agency, and shall provide all related documents,
including copies of the exact documents filed, to CCI, including
without limitation, all annual reports, quarterly reports and
notices of change of events, and registration statements filed
with the SEC and any state agency, directly to CCI.
3. NXPN shall also provide directly to CCI current financial
statements, including balance sheets, income statements, cash
flows and all other documents provided or generated by NXPN in
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the normal course of its business and requested by CCI from
time-to-time.
4. CCI shall keep all documents and information supplied to it
hereunder confidential as described in the section below titled,
"CONFIDENTIAL".
E. CORPORATE AUTHORITY. Both NXPN and CCI have full legal authority to
enter into this agreement and to perform the same in the time and
manner contemplated.
1. The individuals whose signatures appear below are authorized to
sign the Agreement and to perform the same in the time and manner
contemplated.
2. NXPN will cooperate with CCI, and will promptly provide CCI with
all pertinent materials and requested information in order for
CCI to perform its services pursuant to this Agreement.
3. When delivered, the shares of NXPN's common stock shall be duly
and validly issued, fully paid and non-assessable.
4. CCI represents and warrants to NXPN that a) it has the experience
and ability as may be necessary to perform all the required
Services with a high standard of quality, b) all Services will be
performed in a professional manner, and c) all individuals it
provides to perform the Services will be appropriately qualified
and subject to appropriate agreements concerning the protection
of trade secrets and confidential information of NXPN which such
persons may have access to over the term of this agreement.
5. Until termination of the engagement, NXPN will notify CCI
promptly of the occurrence of any event, which might materially
affect the condition (financial or otherwise), or prospects of
NXPN.
VII. TERM
The term of this Agreement shall be 1 year from the date of execution and
is renewable upon mutual agreement.
VIII. CONFIDENTIAL DATA
A. CCI shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of NXPN, obtained by CCI as a result of its
engagement hereunder, unless authorized, in writing by NXPN. CCI
represents and warrants that it has established appropriate internal
procedures for protecting the trade secrets and confidential
information of NXPN, including, without limitation, restrictions on
disclosure of such information to employees and other persons who may
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be engaged in rendering services to any person, firm or entity which
may be a competitor of NXPN.
B. NXPN shall not divulge to others, any trade secret or confidential
information, knowledge or data concerning or pertaining to the
business and affairs of CCI, obtained as a result of its engagement
hereunder, unless authorized, in writing by CCI
C. CCI shall not be required in the performance of its duties to divulge
to NXPN, or any officer, director, agent or employee of NXPN, any
secret or confidential information, knowledge, or data concerning any
other person, firm or entity including but not limited to, any such
person, firm or entity which may be a competitor or potential
competitor of NXPN which CCI may have or be able to obtain other than
as a result of this relationship established under this Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS
A. INDEMNITY. The parties hereto agree to provide indemnification to each
other.
B. PROVISIONS. Neither termination nor completion of this assignment
shall affect the provisions of this Agreement, and the Indemnification
Provisions, which are incorporated herein, which shall remain
operative and in full force and effect.
C. ADDITIONAL INSTRUMENTS. Each of the parties from time to time, at the
respects of others, execute, acknowledge and deliver to the other
party any and all further instruments that may be reasonably required
to give full effect and force to the provisions of this agreement.
D. ENTIRE AGREEMENT. Each of the parties hereby covenants that this
agreement, together with the exhibits attached hereto as earlier
referenced, is intended to and does contain and embody herein all of
the understandings and agreements, both written and oral, of the
parties hereby with respect to the subject matter of this agreement,
and that there exists no oral agreement or understanding or expressed
or implied liability, whereby the absolute, final and unconditional
character and nature of this Agreement shall be in any way
invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
E. LAWS OF THE STATE OF CALIFORNIA. This agreement shall be deemed to be
made in, governed by and interpreted under and construed in all
respects in accordance with the laws of the State of California,
irrespective of the country or place of domicile or residence of
either party.
F. ASSIGNMENTS. The benefits of this agreement shall inure to the
respective successors and assignees of the parties hereto and of the
indemnified parties hereunder and their successors and assigns and
representatives, and the obligations and liabilities assumed in this
agreement by the parties hereto shall be binding upon their respective
successors and assigns, provided that the rights and obligations of
either party under this Agreement may not be assigned or delegated
without prior written consent of the other party, and any such
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purported assignment shall be null and void. Notwithstanding the
foregoing, CCI may assign any portion of its Compensation as outlined
herein to its employees, affiliates, sub-contractors or subsidiaries
in its sole discretion.
G. ORIGINALS. This agreement may be executed in any number of
counterparts, each of which executed shall be deemed an original and
constitute one and the same agreement. Facsimile copies with
signatures shall be given the same legal effect as an original.
H. ADDRESSES OF PARTIES. Each party shall at all times keep the other
informed of its principal place of business if different from that
stated herein, and shall promptly notify the other of any change,
giving the address of the new place of business or residence.
I. MODIFICATION AND WAIVER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in
writing and executed with the same formality as this Agreement. The
failure of any party to insist upon strict performance of any
provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature or of any other
nature.
APPROVED AND AGREED:
Capital Consulting, Inc. Norex, Inc.
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By ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By ▇▇▇▇▇ ▇▇▇▇▇▇
Its Chairman and CEO Its CFO
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Date of Execution Date of Execution
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