Business Consulting agreement
Agreement made as of February 25, 2001, by and between Monogram
Pictures, Inc.("Contractor"), a Nevada Corporation, and Xxx Xxxxxxx, an
Individual, who's place of business is Santa Xxxxxxx, with principal offices at
000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, XX, 00000.
WITNESSETH
WHEREAS, Xxx Xxxxxxx is a Business Consultant engaged in Corporate
Restructuring of Publicly Traded Companies and
WHEREAS, Client is a public company engaged in Movie Archives and
Classic Film distribution ; and
WHEREAS, Contractor requires expertise in the area of Corporate
Restructuring to support its business and growth; and
WHEREAS, Xxx Xxxxxxx has substantial contacts among members of the
Business Consulting community, Business Consulting expertise, and desires to act
as a consultant to provide Corporate Restructing and other advisory services.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein and subject specifically to the
conditions thereof, and intending to be legally bound thereby, the parties agree
a follows:
1. Certain Definitions.
When used in this Agreement, the following terms shall have meanings set forth
below:
1.1 Affiliate - any person or entities controlled by a party.
1.2 Contractor - the Contractor who uses the services of Xxx
Xxxxxxx.
1.3 Contractor Clients - the Contractor's clients who use the
services of Xxx Xxxxxxx through the Contractor.
1.4 Contact Person - The person who shall be primarily responsible
for carrying out the duties of the parties hereunder. Contractor
and Xxx Xxxxxxx shall each appoint a Contact Person to be
responsible for their respective duties. In the event that one
party gives notice to the other party in writing, that in their
reasonable opinion, the other party's Contact Person is not able
to fulfill their duties and responsibilities hereunder, both
parties shall mutually agree upon a replacement Contact Person
within ten (10) days of said notice.
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1.5 Extraordinary Expenses - expenses that are beyond those expenses
that are usual, regular, or customary in the conduct of in-house
activities in fulfillment of the scope of the agreement.
1.6 Equity - cash, securities or liquid assets, specifically
excluding real property.
1.7 Payment or Payable in Kind - distribution of the proceeds of a
transaction in the same type and form as it was given as
valuable consideration for the transaction.
2. Contact Persons.
The Contact Person for Contractor is:
Xx. Xxx Xxxxx,
000 X Xxxx Xxxxxx Xx,
Xxxx Xxxxxxx, XX
The Contact Person for Xxx Xxxxxxx is:
Xx.Xxx Xxxxxxx
000 Xxxxx Xxxxxx,
Xxxxx Xxxxxxx, XX
3. Services to be Rendered by Xxx Xxxxxxx.
Services to be rendered by Xxx Xxxxxxx are as follows:
3.1 Advice and Counsel.
Xxx Xxxxxxx will provide advice and counsel regarding Contractor's
strategic business and financial plans, strategy and negotiations
with potential lenders/investors, merger and acquisition
candidates, joint venturers, corporate partners and others
involving the core business and related transactions.
3.2 Additional Duties.
Contractor and Xxx Xxxxxxx shall mutually agree upon any
additional duties which Xxx Xxxxxxx may provide for compensation
paid or payable by Contractor under this Agreement. Such
additional agreement(s) may, although there is no requirement to
do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
3.6 Best Efforts.
Xxx Xxxxxxx shall devote such time and best efforts as may be
reasonably necessary to perform the required services. Xxx Xxxxxxx
is not responsible for the performance of any services which may
be rendered hereunder without the Contractor providing the
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necessary information prior thereto. Xxx Xxxxxxx cannot guarantee
results on behalf of Contractor, but shall pursue all avenues
available through a network of business consulting and financial
contacts. At such time as an interest is expressed in Contractor's
needs, Xxx Xxxxxxx shall notify Contractor and advise it as the
source of such interest and any terms and conditions of such
interest. The acceptance and consummation of any transaction is
subject to acceptance of the terms and conditions by Contractor.
It is understand that a portion of the compensation to be paid
hereunder is being paid by Contractor to have Xxx Xxxxxxx remain
available to assist it with transactions on an as needed basis.
4. Compensation to Xxx Xxxxxxx.
4.1 Initial Fee.
Contractor shall pay Xxx Xxxxxxx an initial fee of one million
free trading shares of the companies share capital, as payment for
Xxx Xxxxxxx'x initial setup activities which are necessary for Xxx
Xxxxxxx to provide the services herein. Payment shall be
considered in arrears if not received by the tenth (10th) business
day following execution of this Agreement. This fee shall be
earned by Xxx Xxxxxxx upon execution of this Agreement and no part
of it shall be refundable to Contractor.
4.2 Monthly Fees:
Contactor shall pay Xxx Xxxxxxx a monthly fee of $20,000.00 USD.
4.3 Additional Fees.
Contractor and Xxx Xxxxxxx shall mutually agree upon any
additional fees which Contractor may pay in the future for
services rendered by Xxx Xxxxxxx under this Agreement. Such
additional agreement(s) may, although there is not requirement to
do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
4.3 Optional Form of Payment.
Contractor shall pay interest on all payment in arrears due Xxx
Xxxxxxx at the rate of ten percent (10%) per annum.
Xxx Xxxxxxx may, at the time for each payment and at his sole
option, elect to receive all or a portion of said fees in the form
of securities equity, or financing instruments issued by
Contractor to Xxx Xxxxxxx on terms agreed upon by Contractor and
Xxx Xxxxxxx in writing.
Initial Initial
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4.4 Extraordinary Expenses.
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Extraordinary expenses of Xxx Xxxxxxx shall be submitted to
Contractor for approval prior to expenditure and shall be paid by
Contractor, within ten (10) business days of receipt of Xxx
Xxxxxxx'x request for payment.
4.5 Finder's Fee.
4.5.1 In the event Xxx Xxxxxxx introduces Contractor or a
Contractor affiliate to any third party funding
source including underwriters, or merger partner
which results in the introduced parties arriving at a
mutual funding, underwriting or merger agreement,
Contractor hereby agrees to pay Xxx Xxxxxxx an
advisory fee of Ten percent (10%) of the gross
proceeds derived from such funding, payable upon the
consummation of such funding or underwriting, even
though the term of this Agreement may have expired.
4.5.2 Contractor hereby directs and authorizes such funding
source(s) or underwriter(s) to pay said advisory fee
directly to, or to direct a third party escrow, if
applicable, to make payment directly to Xxx Xxxxxxx.
4.5.3 Xxx Xxxxxxx may, at its sole option, elect to receive
all or a portion of said advisory fee as a payment of
kind, i.e. prorata in the same form and type of
securities, equity, or financing instruments issued
to the funding source or underwriter by Contractor.
In the event the exercise of this option results in
additional expense over and above the expenses of the
funding and/or underwriting, then the additional
expenses shall be borne by Xxx Xxxxxxx. In addition,
the exercise of this option by Xxx Xxxxxxx shall not
impede or otherwise have a negative effect on the
funding or underwriting.
4.5 Interest on Funds Due:
All outstanding unpaid debts shall have an interest
rate of 10% per annum.
5. Indemnification.
Each party shall hold the other party harmless from and
against, and shall indemnify the other party, for any liability,
loss, and costs, expenses or damages howsoever caused by reason of
injury (whether to body, property, personal or business character
or reputation) sustained by any person or to any person or
property by reason of any act or neglect, default or omission of
it or any of its agents, employees, or other representatives
arising out of or in relation to this Agreement. Nothing herein is
intended to nor shall it relieve either party from liability for
its own aft, omission or negligence. All remedies provided by law
or in equity shall be cumulative and not in the alternative.
6. Contractor Representations.
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Contractor hereby represents, covenants and warrants to Xxx Xxxxxxx as
follows:
6.1 Authorization.
Contractor and its signatories herein have full power and
authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
6.2 No Violation.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate
any provision of the charter or by-laws of Contractor or, violate,
or be in conflict with, or constitute a default under, any
agreement or commitment to which Contractor is a party, or violate
any statue or law or any judgment, decree, order, regulation or
rule of any court or governmental authority.
6.3 Agreement in Full Force and Effect.
All contracts, agreements, plans, leases, policies and licenses
referenced herein to which Contractor is a party are valid and in
full force and effect.
6.4 Litigation.
Except as set forth below, there is no action, suit, inquiry,
proceeding or investigation by or before any court or governmental
or other regulatory or administrative agency or commission pending
or, to the best knowledge of Contractor, threatened against or
involving Contractor, or which questions or challenges the
validity of this Agreement and its subject matter; and Contractor
does not know or have any reason to know of any valid basis for
any such action, proceeding or investigation.
6.5 Consents.
No consent of any person, other than the signatories hereto, is
necessary to the consummation of the transactions contemplated
hereby, including, without limitation, consents from parties to
loans, contracts, leases or other agreements and consents from
governmental agencies, whether federal, state, or local.
6.6 Xxx Xxxxxxx Reliance.
That Xxx Xxxxxxx has and will rely upon the documents, instruments
and written information furnished to Xxx Xxxxxxx by the
Contractor's officers, or designated employees; and
6.6.1 Contractor Material.
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That all representations and statements provided
about the Contractor are true and complete and
accurate. Contractor agrees to indemnify, hold
harmless, and defend Xxx Xxxxxxx, its officers,
directors, agents and employees, at Contractor's
expense for any proceeding or suit which may arise
out of any inaccuracy or incompleteness of any such
material or written information supplied to Xxx
Xxxxxxx; and
6.6.2 Contractor Client and Other Material.
That all representations and statements provided,
other than about the Contractor are, to be the best
of its knowledge, true and complete and accurate.
7. Services NOT EXPRESSED OR IMPLIED.
7.1 Contractor acknowledges that this Agreement is the
complete and total Agreement and reflects the understandings
of the parties to this Agreement, and that there are no verbal
or other agreements or understandings in which Contractor has
an interest which was or were made explicitly or impliedly
with the understanding that Xxx Xxxxxxx become a market-maker
in any specific securities that Contractor or Contractor
Clients had any type of interest in; and
7.2 That any payments made herein to Xxx Xxxxxxx are not, and
shall not be construed as compensation to Xxx Xxxxxxx for the
purposes of making a market, to cover Xxx Xxxxxxx'x
out-of-pocket expenses for making a market, or for the
submission by Xxx Xxxxxxx of an application to make a market
in any securities; and
7.3 That no payments made herein to Xxx Xxxxxxx are for the
purposes of affecting the price of any security or influencing
any market making functions, including but not limited to, bid
and ask quotations, initiation and termination of quotations,
retail securities activities, or for the submission of any
application to make a market in a security.
7.4 That no payments made herein to Xxx Xxxxxxx are for the
purposes of Capital Raising.
8. Confidentiality.
Xxx Xxxxxxx and Contractor each agree to provide
reasonable security measures to keep information confidential
whose release may be detrimental to the business to be
conducted pursuant to this Agreement. Xxx Xxxxxxx and
Contractor shall each require their employees, agents,
affiliates, subcontractors, other licenses, and others who
will properly have access to the information through Xxx
Xxxxxxx and Contractor respectively, to first enter into
appropriate non-disclosure agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
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9. Miscellaneous Provisions.
9.1.1 Agreement and Notification.
Subject to applicable law, this Agreement may be
amended, modified and supplemented by written agreement of Xxx
Xxxxxxx and Contractor or by their duly authorized respective
officers.
9.1.2 Waiver of Performance.
Any failure of Xxx Xxxxxxx, on the one hand, or
Contractor on the other, to comply with any obligation,
agreement or condition herein may be expressly waived in
writing, but such waiver of failure to insist upon strict
compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppels with
respect to, any subsequent or other failure.
9.1.3 Expenses: Transfer Taxes, Etc.
Whether or not the transaction contemplated by this
Agreement shall be consummated, Xxx Xxxxxxx agrees to that all
fees and expenses incurred by Xxx Xxxxxxx, in connection with
this Agreement, shall be borne by Xxx Xxxxxxx and Contractor
agrees that all fees and expense incurred by Contractor in
connection with the this Agreement shall be borne by the
Contractor, including, without limitation, all fees of counsel
and accountants.
9.1.4 Other Business Opportunities.
Except as expressly provided in this Agreement, each
party hereto shall have the right independently to engage in,
and receive the full benefits from business activities. In the
case of business which would be competitive with the other
party, notice shall be given prior to this entering into any
agreement regarding the competitive activity within ten (10)
days prior to engagement herein. The doctrines of "corporate
opportunity" or "business opportunity" shall not be applied to
another activity, venture, or operation of either party.
9.1.5 Compliance with Regulatory Agencies.
Each party represents to the other party that all
actions, directly or indirectly, taken by it and its
respective agents, employees and affiliates in connection with
this Agreement and any financing or underwriting hereunder
shall conform to all applicable federal and state securities
laws.
9.1.6 Notices.
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Any notices to be given hereunder by any party to the
other may be effected 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 as the addresses appearing in the introductory
paragraph of this Agreement, but any party may change his
address by written notice in accordance with this subsection.
Notices delivered personally shall be deemed communicated as
of three (3) days after mailing.
9.1.7 Assignment.
This Agreement and all provisions hereof shall be
binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties,
except by operation of law.
9.1.8 Delegation.
Neither party shall delegate the performance of its
duties under this Agreement without the prior written consent
of the other party.
9.1.9 Publicity.
Neither Xxx Xxxxxxx nor Contractor shall make or
issue, or cause to be made or issued, any announcement or
written statement unilaterally regarding this Agreement or the
transactions contemplated hereby or make any dissemination to
the general public without the prior consent of the other
party. This provision shall not apply, however, to any
announcement or written statement required to be made by law
or the regulations of any federal or state governmental
agency, except that the party required to make such
announcement shall, whenever practicable, consult with the
other party concerning the timing and content of such
announcement before such announcement is made.
9.1.10 Governing Law.
This Agreement and the legal relations among the
parties hereto shall be governed by and construed in
accordance with the laws of the State of California, without
regard to its conflict of law doctrine. Contractor and Xxx
Xxxxxxx agree that if action is instituted to enforce or
interpret any provision of this Agreement, then jurisdiction
and venue shall be Santa Barbara, California.
9.1.11 Counterparts.
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This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an
original, but of which together shall constitute one and the
same instrument.
9.1.12 Headings.
The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of
this Agreement.
9.1.13 Entire Agreement.
This Agreement, including any Exhibits hereto, and
any other documents and certificates delivered pursuant to the
terms hereof, set forth the entire agreement and understanding
of the parties hereto in respect to the subject matter
contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative or any party hereto.
9.1.14 Third Parties.
Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or
corporation other than the parties hereto and their successors
or assigns, any rights or remedies under or by reason of this
Agreement.
9.1.15 Attorneys' Fees and Costs.
If any action is necessary to enforce and collect
upon the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and costs, in
addition to any other relief to which that party may be
entitled. This provision shall be construed as applicable to
the entire Agreement.
9.1.16 Survivability.
If any part of this Agreement is found, or deemed by
a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder
of this Agreement.
9.17 Further Assurances.
Each of the parties agrees that it shall from
time-to-time take such actions and execute such additional
instruments as may be reasonable, necessary or convenient to
implement and carry out the intent and purpose of this
Agreement.
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9.18 Right to Data After Termination.
After termination of this Agreement, each party shall
be entitled to copies of all information acquired hereunder as
of the date of termination and not previously furnished to it.
9.19 Relationship to the Parties.
Nothing contained in this Agreement shall be deemed
to constitute either party the partner of the other, nor,
except as otherwise hereon expressly provided, to constitute
either party as the agent or legal representative of the
other, nor to create any fiduciary relationship between them.
It is not the intention of the parties to create any
commercial or other partnership. Neither party shall have any
authority to act for or assume any obligation or
responsibility on behalf of the other party, except as
otherwise expressly provided herein. The rights, duties and
obligations and liabilities of the parties shall be several
and not joint and collective. Each party hereto shall be
responsible only for its obligations and liabilities. Each
party shall be liable only for its share of the costs and
expenses as provided herein. Each party shall indemnify,
defend, and hold harmless, the other party, its directors,
officers, and employees from and against any and all losses,
claims, damages and liabilities arising out of any act or any
assumption of liability by the indemnifying party, or any of
its directors, officers or employees, done or undertaken, or
apparently done or undertaken, on behalf of the other party,
except pursuant to the authority expressly granted herein or
otherwise agreed in writing between the parties. Each party
shall be responsible for the acts of its agents and
affiliates.
10.End of Agreement and Termination.
This Agreement shall be effective upon execution, and
shall continue for Twelve (12) months unless terminated
sooner, be either party, upon giving to the other party thirty
(30) days' written notice, after which time, this Agreement is
terminated. Xxx Xxxxxxx shall be entitled to any finder's fees
for funding or underwriting commitments entered into within
one (1) year after the termination of this Agreement if said
funding or underwriting was the result of Xxx Xxxxxxx'x
efforts prior to the termination of this Agreement.
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IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first written above.
Contractor
By:
/s/XXXXX XXXXXXXX
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Chairman, Monogram Pictures, Inc.
XXX XXXXXXX an Individual
By:/s/XXX XXXXXXX
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Xxx Xxxxxxx
