Exhibit 99.1
NON-EXCLUSIVE CONSULTING AGREEMENT
Mr. Edward Stein
Chairman
Detour Media Group, Inc.
7060 Hollywood Blvd., #1150
Los Angeles, CA 90028
Dear Mr. Stein:
This Consulting Agreement (the "Agreement") is made and entered into as
of the 23rd day of May 2001, by and between Detour Media Group, Inc., (the
"Company") and Hyperion Holdings, LLC. This letter agreement confirms the
engagement of Hyperion Holdings, LLC ("Hyperion" or "Consultant") as consultant
and financial advisor of the Company.
1. Retention. Subject to the terms and conditions of this
Agreement, the Company hereby engages Hyperion to act on behalf of the Company
as financial advisor and consultant during the authorization period as defined
below.
2. Authorization Period. The term of this Agreement will be six
months commencing as of May 23rd, 20001. This Agreement may be cancelled upon
thirty (30) days written notice by either party.
3. Consulting Services. During the term hereof, Hyperion agrees
to provide consulting services to the Company in the form of: (i) evaluating the
Company's requirements for funding the growth and expansion of the Company's
operations; (ii) analyzing the impact of business decisions, policies, and
practices on the value of the Company's business and securities; (iii) bringing
to the attention of the Company possible business opportunities and evaluating
business opportunities generally, whether or not such opportunities are
originated by Hyperion or others. Hyperion agrees to devote such time,
attention, and energy as may be necessary to perform the services hereunder.
Nothing herein shall be construed, however, to require Hyperion to provide a
minimum number of hours of service to the Company or to limit the right of
Hyperion to perform similar services for the benefit of persons or entities
other than the Company.
4. Remuneration. For undertaking this engagement and for other
good and valuable consideration, the Company agrees to issue to the Consultant a
"Commencement Bonus" of 500,000 shares of the Company's Common Stock ("Common
Stock") to be delivered to Consultant within ten (10) business days of the
signing of this Agreement. This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement and shall, when
issued and delivered to Consultant, be fully paid and non-assessable. The Shares
shall be registered on Form S-8. The Shares shall be transferable, with
Hyperion, at Hyperion's discretion. The Company understands and agrees that
Consultant has foregone significant opportunities to accept this engagement and
that the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with Consultant.
The 500,000 shares of Common Stock issued as a Commencement Bonus, therefore,
constitute payment for Consultant's agreement to consult to the Company and are
a nonrefundable, non-apportionable, and non-ratable retainer; such shares of
common stock are not a prepayment for future services. If the Company decides to
terminate this Agreement prior to November 23, 2001 for any reason whatsoever,
it is agreed and understood that Consultant will not be requested or demanded by
the Company to return any of the shares of Common Stock paid to it as
Commencement Bonus hereunder. Further, if and in the event the Company is
acquired in whole or in part, during the term of this agreement, it is agreed
and understood Consultant will not be requested or demanded by the Company to
return any of the common shares of Common stock paid to it hereunder. It is
further agreed that if at any time during the term of this agreement, the
Company or substantially all of the Company's assets are merged with or acquired
by another entity, or some other change occurs in the legal entity that
constitutes the Company, the Consultant shall retain and will not be requested
by the Company to return any of the 500,000 shares.
For performance under this agreement on a month-to-month basis, a
Consultancy Fee, payable in the form of $3,000 or 2,000 shares per month of the
Company's Common Stock at the company's option. Should the company opt to pay
the monthly fee in stock the Consultant shall have "piggy-back" registration
rights with respect to such stock. This Consultancy Fee shall be issued to the
Consultant on a monthly basis, the first month pro-rated according to the number
of days remaining in that month, and paid immediately following execution of
this Agreement; each following monthly payment payable in full on the first day
of the respective month. The monthly Consultancy Fee shall continue to be paid
monthly for the duration of this Consulting Agreement.
The Commencement Bonus shares issued pursuant to this agreement shall
be issued in the name of Hyperion Holdings, LLC. The monthly Consultancy Fee
shares, if issued, shall be issued to Hyperion Partners, Inc.
With each transfer of shares of Common Stock to be issued pursuant to
this Agreement (collectively, the "Shares"), Company shall cause to be issued a
certificate representing the Common Stock. Company warrants that all Shares
issued to Consultant pursuant to this Agreement shall have been validly issued,
fully paid and non-assessable and that the Company's board of directors shall
have duly authorized the issuance and any transfer of them to Consultant.
5. Expense Reimbursement. In addition to the fees described in
paragraph 4 above, the Company agrees to reimburse promptly Hyperion, upon
request from time to time, for all reasonable, out-of-pocket expenses incurred
by Hyperion (including fees and disbursements of counsel, the release of news
stories after approval by the company, and of other consultants and advisors
retained by Hyperion) in connection with the matters contemplated this
Agreement.
6. Independent Contractor. Hyperion and the Company hereby
acknowledge that Hyperion is an independent contractor. Hyperion shall not hold
itself out as, nor shall it take any action from which others might infer that
it is a partner or agent of, or joint venture with, the Company. In addition,
Hyperion shall take no action, which binds, or purports to bind, the Company.
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7. Liability of Hyperion Holdings. The Company acknowledges that
all opinions and advice, whether oral or written, given by Hyperion to the
Company in connection with this Agreement are intended solely for the benefit
and use of the Company in considering the transaction to which they relate, and
the Company agrees that no person or entity other than the Company shall be
entitled to make use of or rely upon the advice of Hyperion to be given
hereunder, and no such opinion or advice shall be used by the Company for any
other purpose or reproduced, disseminated, quoted or referred to by the Company
in communications with third parties at any time, in any manner or for any
purpose, nor may the Company make any public references to Hyperion or use
Hyperion's name in any annual report or any other report or release of the
Company without Hyperion's prior written consent, except that the Company may,
without Hyperion's further consent, disclose this Agreement (but not information
provided to the Company by Hyperion) in the company's filings with the
Securities and Exchange Commission, if such disclosure is required by law.
8. Notices. Except as otherwise specifically agreed, all notices
and other communications made under this Agreement shall be in writing and, when
delivered in person or by facsimile transmission, shall be deemed given on the
same day if delivered on a business day during normal business hours, or on the
first day of business day following delivery in person or by facsimile outside
normal business hours, or on the date indicated on the return receipt if sent
registered or certified mail, return receipt requested. All notices sent
hereunder shall be sent to the representatives of the party to be noticed at the
addresses indicated respectively below, or at such other addresses at the
parties to be noticed may from time to time by like notice hereafter specify:
If to the Company: Edward T. Stein
201 North Service Road
Suite 100
Melville, NY 11747
If to Hyperion Holdings, LLC: Hyperion Holdings, LLC
1225 Hightower Train
Ste. 13-220
Atlanta, GA 30350
Attn: Paul T. Mannion, Jr.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties. It may not be changed except by agreement in writing signed
by the party against whom enforcement of any waiver, change, discharge, or
modification is sought. Waiver of or failure to exercise any rights provided by
this Agreement in any respect shall not be deemed a waiver of any further or
future rights.
10. Survival of Representations and Warranties. The
representations, warranties, acknowledgments and agreements of Hyperion and the
Company shall survive the termination of this agreement.
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11. Governing Law. The Agreement shall be construed according to
the laws of the State of Georgia and subject to the jurisdiction of the courts
of said state, without application of the principles of conflicts of laws.
12. Successors. This Agreement shall be binding upon the parties,
their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DETOUR MEDIA GROUP, INC.
By: /s/ Edward T. Stein
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Name: Edward T. Stein
Title: Chairman
HYPERION HOLDINGS, LLC
By: /s/ Paul T. Mannion, Jr.
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Name: Paul T. Mannion, Jr.
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