EXHIBIT 4.11
CONSULTING AGREEMENT
This Agreement made this 2nd day of January, 1997, by and between
Equity Management Partners Corporation, a Tennesee corporation ("Consultant")
and United Petroleum Corporation a Delaware corporation ("UPET").
RECITALS:
A. Consultant a corporation engaged in advising and assisting business
entities in mergers, acquisitions and the financing of such
transactions; and has, through its officers and directors substantial
experience in such matters and the sources to assist in completing
these types of transactions.
B. UPET is a publicly traded corporation, currently listed on the NASDAQ
Small Cap exchange, which is engaged, through one of its subsidiaries,
in full service car washes, gasoline and convenience stores, and quick
lube centers; and in another subsidiary in the drilling and production
of natural gas and oil.
C. UPET is interested in the expansion of it's business through
acquisitions of existing like businesses, and requires the assistance
of Consultant in identifying, evaluating, negotiating and financing
such acquisitions, and in the restructuring of existing debt of UPET
and it's subsidiaries.
NOW THEREFORE, WITNESSETH, that in consideration of the mutual
covenants contained herein and other good and valuable considerations, receipt
of which is acknowledged, the parties agree as follows:
1. Engagement. UPET engages Consultant and Consultant agrees to the engagement
to perform the services hereinbelow defined.
2. Scope of Agreement. Consultant agrees that it will, at the direction of the
President, CEO and/or Board of Directors ("Directors") of UPET perform such
services as may be requested including but not limited to: (a) identifying
potential acquisition or merger candidates; (b) advising UPET on the viability
of potential acquisitions or mergers; (c) advising UPET on negotiating
strategies; (d) locating and arranging potential financing for identified
acquisitions or mergers; and advising UPET on matters related to restructuring
and refinancing of its exiting debt and that of it's subsidiaries; (e) raising
Equity or Quasi-Equity for UPET or its subsidiaries; and (f) locating and
arranging Debt financing for UPET or its subsidiaries.
3. Compensation. (a) An initial retainer in the amount of $40,000,
which retainer shall be payable in S-8 free trading common stodck of UPET.
(b) UPET agrees to pay to Consultant a retainer in
the amount of $10,000 per month commencing January 1, 1997, which retainer
shall be payable in S-8 free trading common stock of UPET. The initial retainer
shall be for a period of three (3) months. The shares to be issued shall valued
at the average closing bid price for the stock based on the five days preceding
the date on which the payment is due.
(c) UPET agrees to pay to Consultant a commission
payable in cash for each acquisition or merger consummated by the
UPET or any Affiliate of the UPET during the Term hereof in which Consultant has
performed any services as hereinabove defined. The commissions shall be based
upon the consideration (whether such consideration is in the form of cash,
stock, notes, bonds, debentures, reserved production payments or other reserved
interests or any other thing of value, or any combination of the foregoing)
actually paid or agreed to be paid by the UPET or any Affiliate of the UPET in
connection with an acquisition or merger, shall be paid to Consultant within
thirty (30) days of the closing of the acquisition or merger, after deduction of
the retainer paid, which shall be chargeable to such acquisition or merger, and
shall be determined as follows:
Consideration Commission
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Up to and including 5% thereof
$1,000,000
Above $1,0000,00 up to The aggregate of 5% on the first
$2,000,000 $1,000,000; and 4% on the amount
above $1,000,000
Above $2,000,000 up to The aggregate of 5% on the first
$3,000,000 $1,000,000; and 4% on the second
$1,000,000; and 3% on the amount
above $2,000,000
Above $3,000,000 up to The aggregate of 5% on the first
$4,000,000 $1,000,000; and 4% on the second
$1,000,000; and 3% on the third
$1,000,000; and 2% on the amount
above $4,000,000
Above $4,000,000 The aggregate of 5% on the first
$1,000,000; and 4% on the second
$1,000,000; and 3% on the third
$1,000,000; and 2% on the fourth
$1,000,000; and 1% on the amount
above $4,000,000
(d) UPET agrees to pay to Consultant a commission
payable in cash for Equity or Quasi-Equity raised by the UPET or any Affiliate
of the UPET during the Term hereof in which Consultant has performed any
services and participated in raising such Equity or Quasi-Equity as hereinabove
defined. The commissions shall be based upon the consideration (whether such
consideration is in the form of cash, stock, notes, bonds, debentures, reserved
production payments or other reserved interests or any other thing of value, or
any combination of the foregoing) actually paid or agreed to be paid by the UPET
or any Affiliate of the UPET in connection with such Equity or Quasi-Equity,
shall be paid to Consultant within thirty (30) days of the closing of Equity or
Quasi-Equity, after deduction of the retainer paid, which shall be chargeable to
such Equity or Quasi-Equity, and shall be 3% of the Equity or Quasi-Equity.
(e) UPET agrees to pay to Consultant a commission
payable in cash for Debt raised by the UPET or any Affiliate of the UPET during
the Term hereof in which Consultant has performed any services and participated
in raising such Debt as hereinabove defined. The commissions shall be based upon
the Face Amount of such Debt (whether such Debt is in the form of cash,
debentures, or any other thing of value, or any combination of the foregoing)
actually paid or agreed to be paid by the UPET or any Affiliate of the UPET in
connection with such Debt, shall be paid to Consultant within thirty (30) days
of the closing of Debt, after deduction of the retainer paid, which shall be
chargeable to such Debt, and shall be 2% of the Debt.
4. Confidentiality. (a) During the Term of this Agreement and thereafter,
Consultant agrees to maintain the confidential nature of the UPET's trade
secrets, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know-how", methods of
doing business, customer, supplier and distributor lists and all other
confidential information of the UPET. Consultant shall not use (other than in
connection with his services), in any way whatsoever, such trade secrets except
as authorized in writing by the UPET. Consultant shall, upon the termination of
this agreement, deliver to the UPET any and all records, books, documents or any
other materials whatsoever (including all copies thereof) containing such trade
secrets, which shall be and remain the property of the UPET.
(b) All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the UPET which Consultant shall prepare or use, or come into contact
with, shall be and remain the sole property of the UPET and, effective
immediately upon the termination of this Agreement with the UPET for any reason,
shall not be removed from the UPET's premises without the UPET's prior written
consent.
5. Severability. If any covenant or provision contained in this Agreement is
determined to be void or unenforceable in whole or in part, it shall not be
deemed to affect or impair the validity of any other covenant or provision. If,
in any arbitration or judicial proceeding, a tribunal shall refuse to enforce
any provision, then such unenforceable provision(s) shall be deemed eliminated
from the provisions hereof for the purpose of such proceedings to the extent
necessary to permit the remaining separate covenants to be enforced in such
proceedings.
6. Termination. This Agreement may be terminated by either party upon sixty (60)
days prior written notice as provided in Section 10 below.
7. Equitable Remedies. Consultant and UPET agree that the services to be
rendered by Consultant pursuant to this Agreement, and the rights and interests
granted and the obligations to be performed by Consultant to UPET pursuant to
this Agreement, are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in any action at law, and that a
breach by Consultant of any of the terms of this Agreement will cause UPET great
and irreparable injury and damage. Consultant hereby expressly agrees that UPET
shall be entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of the Confidentiality provisions of this
Agreement, both pendente lite and permanently, against Consultant, as such
breach would cause irreparable injury to UPET and a remedy at law would be
inadequate and insufficient. Therefore, UPET may, in addition to pursuing its
other remedies, obtain an injunction from any court having jurisdiction in the
matter restraining any further violation.
8. Rights and Remedies Preserved. Nothing in this Agreement shall limit any
right or remedy that UPET or Consultant may have under this Agreement or
pursuant to law for any breach of this Agreement by the other party. The rights
granted to the parties herein are cumulative and the election of one shall not
constitute a waiver of such party's right to assert all other legal remedies
available under the circumstances.
9. No Waivers. The failure to either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor prevent
such party thereafter from enforcing such provision or any other provision of
this Agreement.
10. Notices. Any notice to be given to the UPET and Consultant under the terms
of this Agreement may be delivered personally, by telecopy, telex or other form
of written electronic transmission, or by registered or certified mail, postage
prepaid, and shall be addressed as follows:
If to the UPET: United Petroleum Corporation
4867 North Broadway
Knoxville, Tennessee 37918
Attention: Secretary
Telephone: (423) 688-0582
Telecopy: (423) 688-2266
If to Consultant: Equity Management Partners Corporation
721 Brixworth Blvd.
Knoxville, Tennesee 37922
Telephone: (423) 966-8289
Telecopy: (423) 966-8290
AND a Copy to: Neal S. Melnick, Esquire
P.O. Box 2681
Knoxville, TN 37917
Telephone: (423) 525-3900
Telecopy: (423) 523-2681
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
11. Severability. The provisions of this Agreement are severable and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
12. Successor and Assigns. The rights and obligations of the UPET under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the UPET, including the survivor upon any merger, consolidation,
share exchange or combination of the UPET with any other entity. Consultant
shall not have the right to assign, delegate or otherwise transfer any duty or
obligation to be performed by it hereunder to any person or entity.
13. Entire Agreement. This Agreement supersedes all prior and contemporaneous
agreements and understandings between the parties hereto, oral or written, and
may not be modified or terminated orally. No modification, termination or
attempted waiver shall be valid unless in writing, signed by the party against
whom such modification, termination or waiver is sought to be enforced. This
Agreement was the subject of negotiation by the parties hereto and their
counsel. The parties agree that no prior drafts of this Agreement shall be
admissible as evidence (whether in any arbitration or court of law) in any
proceeding which involves the interpretation of any provisions of this
Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Tennessee without reference to
the conflict of law principles thereof.
15. Section Headings. The section headings contained herein are for the purposes
of convenience only and are not intended to define or limit the contents of said
sections.
16. Gender. Whenever the pronouns "he" or "his" are used herein they shall also
be deemed to mean "she" or "hers" or "it" or "its" whenever applicable. Words in
the singular shall be read and construed as though in the plural and words in
the plural shall be read and construed as though in the singular in all cases
where they would so apply.
17. Counterparts. This Agreement may be executed in counterparts, all of which
taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
ATTEST: UNITED PETROLEUM CORPORATION
A Delaware Corporation,
/s/ Dwight Thomas By: /s/ Michael F. Thomas
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Secretary Title: President
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/s/ Elizabeth A.Berkowitz By: /s/ Ronald J. Berkowitz
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Secretary its President