Exhibit 10.1
ENGAGEMENT AGREEMENT
THIS AGREEMENT is made this 5th day of May, 2005 between Millenium Holding
Group, Inc., 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx, 00000, hereinafter known as
"Client" and Xxxxxx X. Xxxxx 00 Xxxxxx Xx., Xxxxxxx, XX 00000 and Xxxx Xxxxxx,
0000 Xxxxxxxxx Xx., Xxxxxxxxx, XX 00000, hereinafter known as "Advisors".
WHEREAS, Client desires to retain Advisors under the terms and conditions set
forth herein to provide various advisory services to Client and Advisors desires
to provide those services to Client.
NOW THEREFORE, in consideration of the mutual terms and conditions contained
herein, the parties hereto agree as follows:
1. Advisory Services to be Provided
Client hereby retains Advisors to consult with and advise Client regarding its
business, business plan and contemplated business operations and, in particular,
to provide those services set forth on the attached EXHIBIT A. Advisors shall
advise the Client using its best efforts and shall assist the Client in
preparing any materials that may be required in conjunction with any services
provided.
Advisors have the right to refuse to perform any other services for Client other
than those specifically set forth herein.
Advisors may, at the Advisors' own expense, employ such assistants as Advisors
deem necessary to perform the services required of Advisors by this Agreement.
Advisors assume full and sole responsibility for the payment of all compensation
and expenses of these assistants and for all state and federal withholding taxes
which may be applicable.
Advisors shall perform the services required by this Agreement at any place or
location, and at such times, as Advisors shall determine. Advisors will supply
all equipment and supplies required to perform the services under this
Agreement. Advisors are not obliged to purchase or rent any equipment, supplies
or services from the Client.
2. Independent Contractor Status of Advisors
It is the express intention of the parties that in providing its services to the
Client hereunder, Advisors are acting as independent contractors and not as
employees, agents, joint venture partners of the Client. Nothing in this
Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between Client and Advisors or any
employee or agent of Advisors. This Agreement is not exclusive. Advisors shall
retain the right to perform services for other clients during the term of this
Agreement. Advisors have no authority to bind or speak for the Client except as
may be specifically requested and authorized in writing by the Client.
Because Advisors are not employees of Client, Advisors shall be responsible for
and shall fully discharge all federal, state and local taxes that may be due
with respect to any payments made by Client to Advisors hereunder. Client will
not withhold any taxes or unemployment or worker's compensation insurance
contributions from Advisors' payments. All American clients shall be responsible
for preparing and filing Form 1099 and other documents required by US Federal or
State tax agencies as a consequence of payments made to Advisors.
3. Compensation to be paid to Advisors
In consideration of the services performed by Advisors as shown in EXHIBIT A,
the Client agrees to pay Advisors the fees and payments specified in EXHIBIT B.
4. Indemnification By Advisors
Advisors shall indemnify and hold the Client harmless against any and all
liability imposed or claimed, including attorney's fees and other legal
expenses, arising directly or indirectly from any act or failure of Advisors and
Advisors' assistants, employees or person or damage to any property.
5. Cooperation to be Provided by Client
The Client agrees to comply with all reasonable requests of Advisors (and
provide access to all related and respected documents) necessary for the
performance of Advisors' duties under this Agreement. Accordingly, the Client
agrees, at its expense, to furnish any authentication, information, documents,
certificates, evidence, title insurance, plans and specifications, financial
statements, projections, appraisals, mortgage insurance, or any other
information that Advisors, or any financing source located by Advisors may
require in connection with this Agreement or the services contemplated hereby.
The Client understands that without full cooperation of the Client, its agents
and or assigns, Client will prevent Advisors from performing in full accordance
with this Agreement.
6. Advisors' Reliance Upon Information Provided by Client
The Client affirms that all assertions, statements and representations to be
made or furnished to Advisors hereunder will be true and will be made with
intent and purpose of influencing Advisors to act in accordance with the terms
of this Agreement and to induce financing sources located by Advisors to provide
financing to the Client. It is further understood that Advisors are under no
obligation to verify any matter submitted to Advisors by the Client, and the
truth or veracity of any such matter submitted by Advisors to prospective
financing sources shall be the sole responsibility of the Client. The Client
also agrees to hold Advisors, its officers, directors, employees and agents
harmless from and against any, every and all claims which may hereinafter be
made or asserted against Advisors, its officers, directors, employees or agents
arising out of or resulting from any misrepresentations or omissions of facts by
the Client, its agents or assigns to Advisors or whomsoever. The Client also
agrees to promptly reimburse Advisors for all expenses incurred by Advisors as
the result or any false, incomplete or misleading information provided by the
Client or its agent to Advisors hereunder.
7. Conflicts and Confidentiality
It is understood that this Agreement is not exclusive and that Advisors provide
similar services to other clients. It is agreed, however, that Advisors shall
not provide similar services to any other client that can reasonably be viewed
as conflicting in a direct and material way with Advisors' obligations to the
Client.
Advisors agree that it shall treat any and all information received from Client
as confidential and shall not release such information nor communicate it to any
third party without the prior permission of Client. Client also agrees to treat
the relationship with Advisors and this Agreement as confidential and not to
disclose it to any third party without the prior permission of Advisors unless
such disclosure is required to be made pursuant to the regulations of a
government agency or a Court of Law.
8. Confidential Information of Advisors
The Client hereby agrees and acknowledges that Advisors' sources and contracts
are the foundation of Advisors' financial services. The Client fully agrees not
to discuss or disclose the identity of any of Advisors' sources to any person
and agrees not to communicate with those sources for any reason whatsoever,
without Advisors' prior agreement. Furthermore, the Client agrees that its
employees, agents or Advisors will not deal with any sources or agents
introduced to Client by Advisors without using Advisors as their intermediary.
In addition, the Client agrees to contact or transact business with sources
referred to Client by Advisors only with the prior knowledge and consent of
Advisors. This provision shall apply for each and every such contract or
transaction within a period of three (3) years from the date hereof, unless
released by Advisors. The Client shall make this Agreement a part of any request
submitted as a result of Advisors' advice and referral. Any such resultant
services shall not be consummated unless and until the fee to be paid to
Advisors are allocated for payment to Advisors.
9. Equitable Relief
Because Advisors do not have an adequate remedy at law to protect its interest
in its confidential information as described in Sections 8 and 9, including but
not limited to, lists of sources of funds or clients, trade secrets, privileged,
proprietary or confidential information and similar commercial assets, Advisors
shall be entitled to injunctive relief, in addition to such other remedies and
relief that would, in the event of a breach of this Agreement, be available to
Advisors. In the event of such a breach, in addition to any other remedies,
Advisors shall be entitled to receive from Client payment of, or reimbursement
for, its reasonable attorneys' fees and disbursements incurred in enforcing and
such provision.
10. Term
This Agreement will continue in effect until 5 November, 2005, unless earlier
terminated in accordance with the provisions of Section 12 of this Agreement.
Sections 3, 4, 8 and 9 shall survive the termination of this Agreement. This
Agreement is renewable upon the agreement of both parties.
11. Termination
This Agreement shall terminate automatically on the occurrence of any of the
following events;
bankruptcy or insolvency of either party; sale of the business of either party;
or death of either party.
Should either party breach any of the material provisions of this Agreement,
which breach shall not be cured within ten days after notice of that breach
given by the other party, the non-breaching party may terminate this Agreement
by giving written notification of termination to the breaching party.
Should Client fail to pay Advisors all or any part of the compensation set forth
in Section 3 of this Agreement on the date due, Advisors, at the Advisors'
option, may terminate this Agreement if the failure is not remedied by Client
within 10 days from the payment due date.
12. Standard Terms, Conditions and Exhibits
The Parties agree that EXHIBIT C attached hereto on Standard Terms and
Conditions are deemed part of this Agreement for all purposes as though fully
set forth herein. Further, the Parties agree and acknowledge that any other
Exhibits or Schedules that are made a part of this Agreement or provided in
connections with this Agreement are deemed to be a part of this Agreement for
all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Company: Millenium Holding Group, Inc.
By: Xxxxxxx X. Xxx
President
Its Address:
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx 00000
Ph: 000.000.0000
Fax: 000.000.0000
Xxxxxx X. Xxxxx
His Address:
0000 Xxxxxx Xx.
Xxxxxxx, XX 00000
000-000-0000
Xxxx Xxxxxx
His Address:
0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
EXHIBIT A
Initial Specific Services to be Provided by Advisors (indicated by "X"):
[X] 1. Financing Advisory Services
Advisors will provide financial advisory services to structure financing for
Millenium Holding Group, Inc. These services will include: document preparation,
including revision of any existing/in use private placement documents (if
necessary); providing support in due diligence preparation and disclosure;
targeting, conferencing with and introduction of underwriter(s) and negotiation
of terms of engagement for financing; and other related services Advisors
determines are necessary to effect a successful transaction.
[X] 2. Mergers and Acquisitions Advisory Services
Advisors will conduct comprehensive search for join venture, merger, or
acquisition targets or prospective buyers for liquidation of specific businesses
of Millenium Holding Group, Inc. These services will include: identification of
acquisition criteria and a preliminary review target companies or prospective
buyers; advising client with regard to most suitable targets and/or buyers;
pursuit of selected candidates to determine probability and type of transaction
that may be concluded; conduct negotiations to conclusion; and other related
services Advisors determines are necessary to effect a successful transaction.
EXHIBIT B
Engagement Fees:
All engagement fees will be paid to Xxxxxx X. Xxxxx and Xxxx Xxxxxx.for services
to be rendered, as specified in EXHIBIT A.
Financing and Mergers and Acquisitions
For financing and merger and acquisition services, Client shall issue 15,000
SHARES OF MILLENIUM HOLDING GROUP, Inc. 144 (Restricted) stock per month for the
term of this 6-month agreement. In the event that either party elects to
terminate the agreement, no additional stock shall be considered payable after
that date. Shares due will be prorated to that date, however, and therefore this
agreement may require a final monthly payment, which would be less than 15,000
shares.
Advisors require that Client issue the restricted stock on a monthly basis for
these services, with allowances that the Client may require up to 20 days after
each monthly due date to deliver the stock. The first due date will be the same
date this Agreement is signed.
The total cost of services checked off in EXHIBIT A are payable as follows:
Success Fees:
1. In lieu of ENGAGEMENT FEES normally charged for services involving raising
capital, acquiring companies or assets, merging with other businesses, selling
businesses or similar transactions, the client shall reward Xxxxxx Xxxxx and
Xxxx Xxxxxx the following:
a. 3% finder's fee on any capital raised; and a possible continuation through
renewal of this consulting agreement. The total value of cash and stock paid for
identifying a source which provides funds for Millenium Holdings, Inc., will not
to exceed $60,000. The calculation to determine the value of the stock will be
made by adding the total number of shares paid through any date, and multiplying
by the closing price for the previous 10 trading days.
b. 3% cash or 144 restricted stock (or prior agreement on another form of
payment) on any acquisitions negotiated and closed with any company, or entity,
or assets identified and introduced to Millenium Holdings, Inc. by Xxxxxx Xxxxx
or Xxxx Xxxxxx. The 3% fee will be based on the perceived value of the
transaction as agreed by the undersigned parties prior to closing. In addition,
this Agreement will be renewed until a total value of at least $60,000 is paid,
as calculated in paragraph 1a.
Advisors are not restricted to success fees in only one of 1a and 1b above. They
are eligible for separate success fees in each area of activity defined.
EXHIBIT C
Standard Terms and Conditions
Time. Time is of the essence in this Agreement and the transactions contemplated
by it.
Good faith and fair dealing. The parties agree this Agreement imposes an implied
duty of good faith and fair dealing on all the respective obligations of the
Parties.
Headings. The headings of Articles and paragraphs contained in this Agreement
are for convenience of reference only and shall not be considered in construing
this Agreement.
Modification and Waiver. This Agreement constitutes the entire Agreement between
the Parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
Parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all of the Parties. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver constitute
a continuing waiver. No waiver shall be binding unless executed in writing by
the party making the waiver.
Counterparts & Facsimile. This Agreement and Exhibit may be executed
simultaneously in one or more counter-parts or by facsimile, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Rights of Parties. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the Parties to it and their respective heirs, legal
representatives, successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons not a party to this Agreement, nor shall any provision give any such
third persons any right of subrogation or action over against any party to this
Agreement.
Assignment. The Parties shall not assign or transfer their respective
obligations under this Agreement. This Agreement shall be binding on, and shall
inure to the benefit of, the Parties to it and their respective heirs, legal
representatives, successors and permitted assigns, and any of their respective
companies, subsidiaries, entities, agents, associates, partners, directors,
officers, employees, and representatives.
Severability. To the extent any provision of this Agreement shall be determined
by a court of competent jurisdiction to be invalid or unenforceable, such
provision shall be deleted from this Agreement, and the validity and
enforceability of the remainder of such provision and of this Agreement shall be
unaffected.
Attorneys' Fees. If legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of any alleged
dispute, breach, default, or misrepresentation, in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs
incurred, including expert witness fees, in that action or proceeding, in
addition to any other relief to which it or they may be entitled.
Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Nevada without regard to its principles of
conflicts of laws.
Force Majeure. No party to this Agreement shall be responsible to the other
party for nonperformance or delay in performance of the terms or conditions of
this Agreement due to acts of
God, acts of governments, war, riots, strikes, accidents in transportation, or
other causes beyond the reasonable control of such party.
Authority. Both Parties acknowledge that by execution of this Agreement they
have the right, power, legal capacity, and authority to enter into, and perform
their respective obligations under this Agreement, and no approvals or consents
of any persons other than the Parties are necessary in connection with this
Agreement. The execution and delivery of this Agreement has been individually
consented to in writing by all the disclosed individuals of each Party.
No Conflict with Prior Agreements. Both Parties acknowledge, warrant and agree
that the execution of this Agreement, the consummation of the transactions
contemplated herein, and compliance with the terms of this Agreement, do not and
will not, conflict with, or constitute a default under any indenture, mortgage,
deed of trust or other agreement (oral or written) or instrument to which the
Parties are now a party, or the articles, (and any amendments thereto) or bylaws
of Parties, or any law, order, rule or regulations, injunction, or decree or any
government agency or court, domestic or foreign, having jurisdiction over the
Parties or their respective businesses or properties.
Entire Agreement. This Agreement supersedes any and all agreements, either oral
or written, between the parties hereto with respect to the rendering of services
by Advisors to the Client and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to the Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any parties, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by both parties.
Notices. Any notices to be given hereunder by either party to the other may be
effected either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addresses set forth below, but each party may
change the address by written notice in accordance with this Section. Notice
delivered personally will be deemed communicated as of actual receipt; mailed
notices will be deemed communicated as of three days after mailing.
If to: Xxxxxx X. Xxxxx
0000 Xxxxxx Xx.
Xxxxxxx, XX 00000
000 000-0000
If to: Xxxx Xxxxxx
0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Fax: 000 000-0000
If to: Millenium Holding Group, Inc.
Attn: Xxxxxxx X. Xxx, President/Treasurer
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx 00000
Fax: 000 000-0000
