Exhibit B
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made effective as of the 1st day
CONSULTING AGREEMENT of October 1999 (the "Effective Date"), by and between
Xxxxx X. Xxxxx, Xx. (the "Consultant") and Genesis Capital Corporation of
Nevada, a Nevada corporation (the "Company").
WHEREAS, the Consultant also provides general financial advice to corporate
management and performs general administrative duties for publicly-held and
other companies; and
WHEREAS, the Company desires to retain the Consultant to advise and assist
it, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Consultant agree as follows:
1. Engagement
The Company hereby retains the Consultant, from the Effective Date and
continuing until termination, as provided herein, to (a) assist the
Company in compromising and settling litigation in which the Company is
a defendant, (b) resolve the claims of unpaid creditors of the Company,
and (c) otherwise provide financial services (collectively termed the
"Services"). The Services shall include without limitation those
services described on Exhibit A. The Services are to be provided on a
"best efforts" basis directly and through the Consultant's employees or
others employed or retained and under the direction of the Consultant
(the "Consultant's Personnel"); provided, however, that the Services
are expressly agreed to exclude all legal advice, accounting services
or other services which require licenses or certification; and
provided, further, that, in no event, shall the Services include
services (a) in connection with the offer or the sale of securities of
the issuer in a capital-raising transaction, (b) directly or indirectly
promoting or maintaining a market for the Company's securities, or (c)
for the principal purpose of taking a private company public by its
merger into or with the Company or its subsidiary.
2. Term
This Agreement shall have an initial term (the "Primary Term"), with an
effective date retroactive to the date services were first performed by
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the Consultant, which as on or about the Effective Date, and ending
March 24, 2000. This Agreement may be renewed by the mutual consent of
the parties.
3. Time and Effort of the Consultant
The Consultant shall allocate time and the Consultant's personnel as
it deems necessary to provide the Services. The particular amount of
time may vary from day to day or week to week. The Consultant has
provided a statement identifying, in general, the tasks it has
performed from the Effective Date to March 17, 2000. The Company has
reviewed this statement and believes the time and effort expended by
the Consultant to be reasonable for the tasks it has completed. The
Consultant will continue to provide billing statements on a monthly
basis or within (7) days of the Company's request. These billing
statements shall be conclusive evidence that the Services have been
performed. Additionally, in the absence of willful misfeasance, bad
faith, or reckless disregard for the obligations or duties hereunder
by the Consultant, neither the Consultant nor the Consultant's
Personnel shall be liable to the Company or any of its shareholders
for any act or omission in the course of or connected with rendering
the Services, including but not limited to losses that may be
sustained in any corporate action undertaken by the Company as a
result of advice provided by the Consultant or the Consultant's
Personnel.
4. Compensation
The Company agrees to pay the Consultant a fee for the Services he has
provided under this Agreement by issuing to Consultant five hundred
eighty thousand (580,000) shares of the Company's common stock after
April 14, 2000 but before May 31, 2000. All shares of the Company's
common stock issued to the Consultant are deemed to be validly issued,
fully paid and non-assessable. Of the shares to be issued, a total of
three hundred fifty thousand (350,000) shares shall be issued and
registered on Form S-8 filed under Section 5 of the Securities Act of
1933. This registration statement shall be made effective no later than
May 31, 2000. The remaining two hundred thirty thousand (230,000)
shares shall be issued simultaneously with the filing of the
registration statement on Form S-8 with the Securities and Exchange
Commission. The shares not registered shall be issued pursuant to
Section 4(2) of the Securities Act of 1933, and the share certificates
representing these shares shall bear customary legends indicating that
these shares are "restricted securities" as defined in SEC Rule 144(a).
The Consultant represents and warrants that he is acquiring the shares
not registered for investment purposes and not with a view to their
distribution.
5. Costs and Expenses
All third-party and out-of-pocket expenses incurred by the Consultant
in the performance of the Services shall be paid by the Company, or
shall be reimbursed if paid by the Consultant on behalf of the Company,
within ten (10) days of receipt of written notice by the Consultant,
provided that the Company must approve in advance all such expenses in
excess of $500 per month.
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6. Place of Services
The Services provided by the Consultant or the Consultant's Personnel
will be performed at the Consultant's offices except as otherwise
mutually agreed in writing by the Consultant and the Company.
7. Independent Contractor
The Consultant and the Consultant's Personnel will act as independent
contractors in the performance of any duties under this Agreement.
Accordingly, the Consultant will be responsible for paying all federal,
state, and local taxes on compensation paid under this Agreement,
including income and social security taxes, unemployment insurance, and
any other taxes due relative to the Consultant's Personnel, and any and
all business license fees as may be required. This Agreement neither
expressly nor otherwise creates a relationship of principal and agent,
or employer and employee, between the Company and the Consultant's
Personnel. Neither the Consultant nor the Consultant's Personnel are
authorized to enter into any agreements on behalf of the Company. The
Company expressly retains the right to approve, in its sole discretion,
all action related to the Services provided by the Consultant.
8. No Agency Express or Implied
This Agreement creates neither a principal-agent nor an
employer-employee relationship, either express or implied, between the
Company and either the Consultant or the Consultant's Personnel.
9. Termination
The Company and the Consultant may terminate this Agreement before the
Primary Term expires, on thirty (30) days written notice, with mutual
written consent. Absent mutual consent, and without prejudice to any
other remedy to which the terminating party may be entitled, either
party may terminate this Agreement with thirty (30) days written notice
under the following conditions:
(A) By the Company.
(i) If during the Primary Term of this Agreement, the Consultant is
unable to provide the Services as set forth herein for thirty
(30) consecutive business days because of illness, accident, or
other incapacity of the Consultant's Personnel; or,
(ii) If the Consultant willfully breaches o grossly neglects the
duties required to be performed hereunder; or,
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(B) By the Consultant.
(i) If the Company breaches this Agreement or fails to make any
payment or provide any information required hereunder; or
(ii) If the Company ceases business or, other than in a merger
arranged by the Consultant, sells a controlling interest to a
third party, or agrees to a consolidation or merger of itself
with or into another corporation, or enters into such a
transaction outside of the scope of this Agreement, or sells
substantially all of its assets to another corporation, entity or
individual outside the scope of this Agreement; or
(iii)If the Company has a receiver appointe for its business or
assets, or otherwise becomes insolvent or unable to timely
satisfy its obligations in the ordinary course of business, or
(iv) If the Company institutes or has instituted against it any
bankruptcy proceeding, files a petition in a court of bankruptcy,
is adjudicated a bankrupt, or makes a general assignment for the
benefit of creditors; or
(v) If any disclosure made by the Company in connection with the
issuance of its common stock as provided in Section 4 of this
Agreement, is materially false or misleading.
10. Indemnification
Subject to the provisions herein, the Company and the Consultant agree
to indemnify and defend each other, and hold each other harmless, from
and against all demands, claims, actions, losses, damages, liabilities,
costs and expenses, including without limitation interest, penalties,
attorneys' fees and expenses, asserted against, imposed on, or incurred
by either party by reason of or resulting from any unlawful action of,
or a misrepresentation contained in this Agreement, breach of any
covenant or agreement herein, by the other party to this Agreement.
11. Remedies
The Consultant and the Company acknowledge that in the event of a
breach of this Agreement by either party, money damages would be
inadequate, and the non-breaching party would have no adequate remedy
at law. Accordingly, in the event of any controversy concerning the
rights or obligations under this Agreement, such rights or obligations
shall be enforceable in a court of equity by a decree of specific
performance. Such remedy, however, shall be cumulative and
non-exclusive and shall be in addition to any other remedy to which the
parties may be entitled.
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12. Miscellaneous
(A) Subsequent Events. The Consultant and the Company each agree to notify
the other party if, subsequent to the date of this Agreement, either
party incurs obligations which could compromise its efforts and
obligations under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the parties
hereto.
(C) Further Actions and Assurances. At any time an from time to time, each
party agrees, at its or their expense, to take actions and to execute
and deliver documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply with any
of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed. The failure
of any party to this Agreement to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the right of such party
thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or non-compliance.
(E) Assignment. Neither this Agreement nor any right created by it shall
be assignable by either party without the prior written consent of the
other.
(F) Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party, or on
the first business day after (a) deposited in the United States mails
for transmittal by certified or registered mail, return receipt
requested, postage prepaid, (b) deposited with an overnight courier
service with shipping charges billed to the sender, or (c) sent by
facsimile transmission, provided that the communication is addressed:
(i) In the case of the Company:
Genesis Capital Corporation of Nevada
00000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the case of The Consultant:
Xxxxx X. Xxxxx, Xx.
Simon, Warner & Xxxx, L.L.P.
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000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address designated in writing by
the Company or the Consultant to receive notice.
(G) Headings. The headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(H) Governing Law. This Agreement was negotiated and is being
contracted for in the United States of America, State of Texas,
and shall be governed by the laws of the State of Texas, and the
United States of America, notwithstanding any conflict-of-law
provision to the contrary.
(I) Binding Effect. This Agreement shall be bindin on the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the parties
relating to the subject matter of this Agreement. No oral
understandings, statements, promises, or inducements contrary to
the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other
than as set forth herein, hav been made by any party.
(K) Severability. If any part of this Agreement is deemed to be void,
illegal, or unenforceable, the balance of the Agreement shall
remain in full force and effect.
(L) Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument,
by one or more parties hereto, and such executed copy may be
delivered by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on
behalf of such party can be seen. In this event, such execution
and delivery shall be considered valid, binding and effectiv for
all purposes. At the request of any party hereto, all parties
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
13. (M) Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 24th
day of March 2000, but effective as of the Effective Date.
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THE CONSULTANT
/s/ Xxxxx X. Xxxxx, Xx.
-----------------------
XXXXX X. XXXXX, XX.
COMPANY
GENESIS CAPITAL CORPORATION OF NEVADA,
a Nevada corporation
By: /s/Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx, Vice President
[Note: This agreement was re-executed in April 2000 to reflect adjustment to the
consideration.]
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EXHIBIT A
Additional Description of the Services
1. Assist with settlement of a lawsuit involving Biorelease Corporation and
Genesis Capital Corporation of Nevada.
2. Assist with resolution of disputes over the Company's preferred stock
registered in the name of Xxxxx Xxxxxx.
3. Assist with resolution of a dispute over the Company's preferred stock with
Sureco Limited.
4. Performed legal services and drafting of legal documents in relation to the
Acquisition Agreement between Genesis Capital Corporation of Nevada and
Power Exploration, Inc. relating to the sale of a Genesis subsidiary to
Power Exploration, Inc.
5. Negotiations with holders of Genesis preferred stock represented by Xxxxxx
Xxxxxx, Esq. (Negotiations have begun and are still ongoing.)
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