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EXHIBIT 10.11
CONSULTING AGREEMENT
This agreement confirms that Chicken Kitchen Corp. ("The Company") has
retained Olympus Capital, Inc. (hereinafter "OCI") for the purpose of assisting
the Company in identifying investors willing to invest capital into the
Company. The Company is seeking to raise $4,000,000 U.S. (Four Million U.S.
Dollars) and wants OCI to introduce the Company to potential investors. The
Company desires to raise this capital for the purpose of purchasing additional
restuarants and for working capital. The Company is doing so in the form of a
private placement. It is understood that OCI's sole obligation is to introduce
potential investors to the Company not to assist either the Company or the
potential investors in the negotiation of the terms of any investment or to
solicit investors to participate in any securities offering.
OCI also agrees to assist the Company in accessing the need for retaining
the services of a financial public relations company, and helping the Company
in selecting a financial public relations company if the Company decides it has
such a need.
OCI also agrees for a period of 12 months to assist the Company in any
dealings with a potential investment banker and to assist the Company in
identifying any possible merger or acquisition candidates.
1. FEES AND EXPENSES
As compensation for the services rendered to the Company as set forth
above, it is agreed that the Company shall pay OCI a consulting fee of $630,000
(Six Hundred Thirty Thousand US Dollars). This fee shall be payable in cash
from the escrow account of Hand & Hand with the closing of the Company's
Private Placement. In addition, the Company shall issue to OCI 140,000
restricted shares of its common stock plus an option to purchase 100,000 shares
of common stock at $1.25 a share and 100,000 shares at $1.75 with piggyback
registration rights on all shares and options on any future registration
statements for a period of two (2) years from the date of this contract.
The above consulting fee of $630,000 includes an expense deposit of
$30,000 (Thirty Thousand US Dollars). All expenses, including but not limited
to air fare, hotel, travel, photocopying, Federal Express and mailing cost of
private placement documents will be accounted for within ninety (90) days with
any balance returned to the Company.
2. OBLIGATIONS LIMITED
OCI shall be under no obligation to make an independent investigation or
inquiry as to any information regarding the Company or any representations of
the Company and shall have no liability in regard thereto.
3. OFFERING MATERIALS
(a) The Company agrees with OCI that the Company will as promptly as
practicable deliver to OCI offering materials which shall include in
all filings made with the Securities and Exchange Commission since the
beginning of the Company's last completed fiscal year and all other
information with respect to the business and properties of the Company
and any recent developments. Such offering material (the "Offering
Material") shall comply with all applicable securities laws. The
Company
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will be solely responsible for the contents of the Private Placement
Material and any other written information provided to any offeree and
the Company represents that the Private Placement Materials will not,
as of the date of the offer or sale of any Securities, contain any
untrue statement of material fact or omit to state a material fact
necessary in order to make the statement made, in light of the
circumstances which they were made, not misleading. The company agrees
to advise OCI promptly of the occurrence of any event or any other
change, which results in the Private Placement Materials containing
any untrue statement of a material factor or omitting to state any
material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Company authorizes OCI to provide the Private
Placement Materials in the form provided to prospective purchasers of
the private placement.
(b) The Company's financial and operational history, its capitalization,
its present condition, financial and otherwise, assets and prospects,
shall be represented to OCI in the written material delivered to OCI
by the Company. The Company shall supply OCI with such financial
statements, contracts, and other corporate records and documents as
OCI shall deem necessary and it shall supply OCI counsel with all
financial statements, contracts, documents, and other corporate papers
as may be reasonably requested. In addition, OCI shall be promptly and
fully informed by the Company of any events which might have a
material effect on the financial condition, results of operations,
assets or prospects of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Company represents and warrants that this letter has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company enforcement may be limited for bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or
affecting the enforcement of creditor's rights generally and by general equity
principles. The Company further represents and warrants that consummation of
the transaction contemplated herein will not conflict with or result in a
breach of any of the terms, provisions or conditions of any written agreement
to which it is a party.
5. INDEMNITY CONTRIBUTION
(a) The Company agrees to indemnity and hold harmless OCI, and each
person, if any, who controls OCI and their respective employees,
officers and directors, their affiliates and any controlling person of
any of them (each an "indemnified party") form and against all claims,
damages, losses, liabilities, costs, and expenses (collectively, for
purposes of this subparagraph (a), "liabilities") as the same are
incurred (including, without limitation, any actual, legal or other
expenses reasonably incurred in connection with investigating,
preparing to defend or defending against any action, claim, suit or
proceeding (including an investigation) commenced or threatened, or in
appearing or preparing for pretrial proceeding such as a deposition))
which arises out of or in connection with this Agreement, the
performance of any services pursuant to this engagement letter or the
transactions contemplated hereby.
(b) In the event of the assertion against any indemnified party of any
such claim or the commencement of any suit, action or proceeding, the
Company shall be entitled to participated in such suit, action or
proceeding, and in the investigation of such claim, and, after written
notice from the Company to the indemnified party to assume
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the investigation or defense of such claim, suit, action or proceeding
with counsel of its choice at its expense; provided, however, that
such counsel shall be satisfactory to the indemnified party.
Notwithstanding, the election of the Company to assume the defense or
investigation of such claim, suit, action or proceeding, and the
Company shall bear the expense of such separate counsel, if (i)
counsel for the indemnified party in good faith advises the
indemnified party that use of counsel chosen by the Company could give
rise to a conflict of interest and both are parties to the suit, (ii)
the Company shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of any such litigation
or proceeding, or (iii) the Company shall authorize the indemnified
party to employ separate counsel at the expense of the Company.
If for any reason the foregoing indemnification is unavailable to the
indemnified party or insufficient to hold the indemnified party
harmless, the Company shall contribute to the amount paid or payable
by the indemnified party as a result of such claim, suit, action,
proceeding, damage, loss, liability, cost or expense for which
indemnification in contemplated by paragraphs (a) and (b) above (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the other party or parties
on the other hand in connection with the matters covered by this
Agreement, or (ii) if the allocation provided by clause (iii) is not
permitted by applicable law, in such proportion as is appropriate to
select not only the relative benefits received by the parties from the
transaction, but also the relative fault of the parties in connection
with the statements or omissions which resulted in such claims, suits,
actions, proceedings, damages, losses, liabilities, costs and
expenses, as well as any relevant equitable consideration. The
relative benefits received by the Company on the one hand and OCI on
the other shall be deemed to be in the same proportion as the total
proceeds from the transaction (net of the fee, set forth herein)
received by the Company bears to the fees received by OCI.
6. NOTICES
Any notice or other communication to be given to the Company hereunder may
be given by delivering the same in writing to the address set forth below, and
any notice or other communication to be given to OCI may be given by delivering
the same to Olympus Capital, Inc. 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000 Attention: Xxxxx X. Xxxxxx III, President, or in each case, such other
communication hereunder shall be deemed given three days after deposit in the
mail if mailed by certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery, or on the date
personally delivered.
7. CONFIDENTIALITY
It is understood and agreed that OCI and the Company, during the course of
this Agreement, shall exchange information that is privileged and confidential
as a consequence of doing business. OCI and the Company agree that neither
shall make personal use of the information provided to it by the other or make
that information available to a third party or company without the expressed
written consent of the other party. This confidentiality, non-disclosure
agreement extends to both OCI and the Company and their representatives, agents
and employees.
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8. PROPRIETY INTEREST IN INVESTORS
It is understood and agreed between the parties that OCI has
expended time and money in identifying and cultivating the potential investors
it brings to the Company. Should the Company solicit or receive any subsequent
moneys from investors introduced by OCI, the Company shall immediately notify
OCI and OCI shall be entitled to a finders fee of 15% of said funds received.
9. MISCELLANEOUS
This Agreement sets forth the entire understanding of OCI and the
Company concerning the subject matter hereof and supersedes any prior
communications, understandings and agreements between the parties. This
Agreement cannot be changed, nor can any of its provisions be waived, except by
a writing signed by OCI and the Company. The headings contained in this
agreement are for reference purposes only and shall not effect in any way the
meaning or interpretation of the provisions hereof. The Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
10. CONTROLLING LAW AND VENUE
This Agreement's validity, interpretation and performance shall be
controlled by and construed under the laws of the State of Florida. The proper
venue and jurisdiction shall be the Circuit Court in Orange County, Florida.
IN WITNESS WHEREOF, the Parties have executed the Agreement this 20th day of
August, 1997.
OLYMPUS CAPITAL, INC. CHICKEN KITCHEN CORPORATION
By: Xxxxx X. Xxxxxx III By: /s/ Christian DeBerdouare
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Xxxxx X. Xxxxxx III, President Christian DeBerdouare, President
000 Xxxxxxxx Xxxx Xxxxx 0000 Xxxxxxx Xxx., Xxx. 000
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
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