EXHIBIT 10.1
Consulting Agreement Strictly Confidential
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CONSULTING AGREEMENT This Consulting Agreement (the "Consulting
Agreement") was made as of April 12, 2002, by and
between Xxxxxx X. Xxxxxx ("Consultant") and AquaPro
Corporation (the "Company").
WITNESSETH WHEREAS, the Company engages in the business of
owning and managing catfish aquaculture farms
(Aquaculture) directly and through its two
wholly-owned subsidiaries, American Fisheries
Corporation and Circle Creek Aquaculture, Inc. and
grows channel catfish for ultimate sale and
processing and desires to expand its business by
seeking acquisitions of other businesses; and
WHEREAS, the Company requires and will continue to
require consulting services relating management,
strategic planning and marketing in connection with
its business; and
WHEREAS, Consultant can provide the Company with
strategic planning and marketing consulting services
and its desirous of performing such services for the
Company; and
WHEREAS, the Company wishes to induce Consultant to
provide these consulting services to the Company,
NOW THEREFORE, in consideration of the mutual
covenants hereinafter stated it is agreed as follows:
1. APPOINTMENT
The Company hereby engages Consultant and
Consultant agrees to render services to the
Company as a consultant upon the terms and
conditions hereinafter set forth.
2. TERM
The term of this Consulting Agreement began as
of the date of this Agreement, and shall
terminate on April 12, 2003, unless earlier
terminated in accordance with paragraph (7)
herein or extended as agreed to between the
parties.
3. NEEDS
The Company is presently seeking a
recapitalization of its capital structure
including debt and equity. The Company is
determining how best to raises $25 million for
mergers and acquisitions, repayment of
outstanding debt and working capital.
4. SERVICES
During the term of this Agreement, Consultant
shall provide advice to undertake for and
consult with the Company concerning management,
marketing, consulting, strategic planning,
corporate organization and structure, financial
matters in connection with the operation of the
businesses of the Company, expansion of
services, acquisitions and business
opportunities, and shall review and advise the
Company regarding its overall progress, needs
and condition. Consultant agrees to provide on a
timely basis the following enumerated services
plus any additional services contemplated
thereby:
(a) The development of a written plan and
implementation of short-range and long-term
strategic planning to fully develop and
enhance the Company's assets, resources,
products and services:
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Consulting Agreement Strictly Confidential
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(b) The implementation of marketing program to enable the Company to broaden
the markets for tis services and promote the image of the Company and its
products and services;
(c) Advise the Company relative to the recruitment and employment of key
executives consistent with the expansion of operations of the Company;
(d) The identification, evaluation, structuring, negotiating and closing of
joint ventures, strategic alliances, business acquisitions and advice with
regard to the ongoing managing and operating of such acquisitions upon
consummation thereof; and
(e) Advice and recommendations regarding corporate financing including the
structure, terms and content of bank loans, institutional loans, private
debt funding, mezzanine financing, blind pool financing and other preferred
and common stock equity private public offering.
4. DUTIES OF THE COMPANY
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be
reasonably requested by Consultant, and shall advise Consultant of any facts
which would affect the accuracy of any data and information previously
suppled pursuant to this paragraph. The Company shall promptly supply
Consultant with full and complete copies of all financial reports, all
filings with all federal and state securities agencies, with full and
complete copies of all stockholder reports; with all data and information
supplied by any financial analyst, and with all brochures or other sales
materials relating to its products or services.
5. COMPENSATION
The Company will immediately grant Consultant or his designee an amount of
500,000 shares of common stock of the Company. The Common Stock will be
registered at consultant's requests under form S-8 at any time after issue.
6. REPRESENTATION AND INDEMNIFICATION
The Company shall be deemed to have been made a continuing representation of
the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will
rely on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS
(a) Termination: This Agreement shall be terminated immediately upon
written notice for material breach of this Agreement.
(b) Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter thereof.
This Consulting Agreement may be amended only in writing signed by both
Parties.
(c) Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or
to such other address or facsimile telephone number as the Party shall
have furnished in writing to the other Party.
(d) Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver
of
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Consulting Agreement Strictly Confidential
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any other breach of that provision or of any
breach of any other provision of this Consulting
Agreement. The failure of a Party to insist upon
strict adherence to any term of this Consulting
Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the
right thereafter to insist upon adherence to that
term of any other term of this Consulting
Agreement
(e) Assignment: The Options under this Agreement
are assignable at the discretion of the
Consultant.
(f) Severability: If any provision of this
Consulting Agreement is invalid, illegal, or
unenforceable, the balance of this Consulting
Agreement shall remain in effect, and if any
provision is inapplicable to any person or
circumstance, it shall nevertheless remain
applicable to all other persons and
circumstances.
(g) Disagreements: Any dispute or other
disagreement arising from or out of this
Consulting Agreement shall be submitted to
arbitration under the rules of the American
Arbitration Association and the decision of the
arbiter(s) shall be enforceable in any court
having jurisdiction thereof. Arbitration shall
occur only in Southampton, NY. The interpretation
and the enforcement of this Agreement shall be
governed by New York Law as applied to residents
of the State of New York relating to contracts
executed in and to be performed solely within the
State of New York. In the event any dispute is
arbitrated, the prevailing Party (as determined
by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred
(as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the Parties
as of the date first above written.
AquaPro Corporation CONSULTANT
/s/ Xxxxxx Xxxxxxxx, Xx. /s/ Xxxxxx X. Xxxxxx
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Xxxxxx Xxxxxxxx, Xx., Chairman/CEO/President Xxxxxx X. Xxxxxx
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