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EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is to be effective as of the
12th day of July, 2001, by and between Big Buck Brewery & Steakhouse, a Michigan
corporation ("Company"), with offices located at 550 S. Wisconsin, P.O. Box
1430, Gaylord, MI 49734, and Morgan James & Associates ("Consultant"), having
its principal place of business at 14 West Jones Street, Suite "D," Savannah, GA
31401.
For the purpose of this Agreement, either of the above shall be
referred to as a "Party" and collectively as the "Parties."
1. APPOINTMENT OF MORGAN JAMES & ASSOCIATES. Company hereby
appoints Consultant and Consultant hereby agrees to render
services to Company as a management consultant, strategic
planner and advisor.
2. DUTIES. During the term of this Agreement, Consultant shall
provide advice to, undertake for, and consult with Company
concerning management, marketing, consulting, strategic
planning, corporate organization, and structure financial
matters in connection with the operation of the Company's
business, expansion of services, stockholder relations, and
shall review and advise Company regarding its overall
progress, needs and condition. Company understands and
acknowledges that Consultant is not a broker dealer.
Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated
thereby:
a) Present to Company prospective acquisition targets,
business opportunities, joint ventures, and any other form
of revenue enhancements to Company;
b) Assist in the implementation of short-range and long-term
strategic planning to fully develop and enhance Company's
assets, resources, products, and services;
c) Support in the implementation of a marketing program to
assist Company in broadening the markets for its business
and services and promote the image of the Company and its
business and services;
d) Assist Company in the monitoring of services provided by
Company's advertising firm, public relations firm, and
other professionals to be employed by Company;
e) Advise Company relative to the continued development for a
customer relations program and to stimulate interest in
Company by institutional investors and other members of
the financial community;
f) Advise Company relative to the recruitment and employment
of key executives consistent with the expansion of
operations of Company; and
g) Advise and recommend to Company additional services
relating to the present business and services provided by
Company as well as new products that may be provided by
Company.
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3. TERM. The term ("Term") of this Consulting Agreement shall
be for a period of one (1) year commencing on the date hereof
and shall continue on a month-to-month basis until
terminated by Company or Consultant with a notice of thirty
(30) days.
4. COMPENSATION. See Attachment "A."
5. CONFIDENTIALITY. Consultant will not disclose to any other
person, firm or corporation, nor use for its own benefit,
during or after the Term of the Consulting Agreement, any
trade secrets or other information which are material and
nonpublic and which are acquired by Consultant in the course
of performing services hereunder. Any written representation
rendered by Consultant pursuant to this Consultant Agreement
may not be disclosed in any manner without the prior written
approval of Company.
6. INDEMNIFICATION. Company, its agents or assigns herby agree to
indemnify and hold Consultant harmless from and against all
losses, claims, damages, liabilities, costs or expenses which
result from a legal dispute (including reasonable attorney's
fees), collectively the "Liabilities," joint and several,
arising from the performance of this Consulting Agreement;
provided, however, that the Company will not be liable in any
such case to the extent, but only to the extent, that any such
loss, claim, damage, liability, cost or expense arises out of
or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance
upon and in conformity with information furnished to the
Company by or on behalf of the Consult. This indemnity shall
not apply, however, and Consultant shall indemnify and hold
Company, its affiliates, control persons, officers, employees,
and agents harmless from and against all liabilities, where a
court of competent jurisdiction has made a final determination
that Consultant engages in gross negligence and willful
misconduct in the performance of its services hereunder (but
pending any such final determination, the final
indemnification and reimbursement provision of this Consulting
Agreement shall apply and Company shall perform its obligation
hereunder to reimburse Consultant for its expenses). The
Consultant will indemnify and hold harmless the Company, each
of its directors, each of its officers, and each person who
controls the Company within the meaning of the Securities Act,
against any losses, claims, damages, liabilities, costs or
expenses to which the Company or any such director, officer,
or controlling person may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof)
arise omission or alleged omission, but only to the extent
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by or on
behalf of the Consultant. The provisions of this paragraph
shall survive the termination and expiration of this
Consulting Agreement.
7. INDEPENDENT CONTRACTOR. Consultant and Company hereby
acknowledge that Consultant is an independent contractor.
Consultant shall not hold itself out as, nor shall it take any
action from which others might infer that it is an agent of or
a joint venture of Company.
8. MISCELLANEOUS. This Consulting Agreement sets forth the entire
understanding of the Parties relating to the subject matter
hereof, and supersedes and cancels any prior communications,
understanding, and agreements between the Parties. This
Consulting Agreement is non-exclusive and cannot be modified
or changed, nor can any of its provisions be waived, except by
written agreement signed by all Parties. This Consulting
Agreement shall be governed by the laws of the State of
Michigan without reference to the conflict of law principles
thereof. In the event of any dispute as to the terms of this
Consulting Agreement, the prevailing Party in any litigation
shall be entitled to reasonable attorney's fees.
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9. RESTRICTIONS REGARDING COMPANY'S STOCK. Consultant understands
and acknowledges that the payment of consideration to
securities broker-dealers and their associated persons
(directly or indirectly, including affiliates of associated
persons) for the purpose of inducing them to buy or sell
securities for their account or for their customers' accounts,
to recommend the purchase of securities to their customers, or
to influence the price of securities in the public market is a
violation of the NASD's Rule of Fair Practice and of the
Federal Securities Exchange Act of 1934, as amended, and that
the transfer of the Company's common stock or the sale thereof
at a price below the then current bid price to a securities
broker-dealer and such associated person described above is
prohibited. Accordingly, Consultant agrees that the shares of
Company's common stock, which the Company is to or may deliver
to Consultant as compensation for Consultant's services, will
not be used for any prohibited purpose described above.
Consultant understands that any securities issuable pursuant
to Section 4 hereof (the "Shares") are not being registered
under the Securities Act or relevant state securities laws
pursuant to exemptions from the Securities Act and such laws,
and that the Company's reliance upon such exemptions is
predicated in part on Consultant's representations to the
Company as contained herein. Consultant further represents and
agrees that if it should later desire to dispose of or
transfer any of the Shares in any manner, it will not do so
without first obtaining (a) the opinion of counsel designated
by the Company that such proposed disposition or transfer
lawfully may be made without the registration of the Shares
for such purpose pursuant to the Securities Act, as then in
effect, and applicable state securities laws, or (b) such
registrations. Consultant agrees that the Company may place a
restrictive legend on the certificate(s) representing the
Shares to reflect the foregoing restrictions.
10. PIGGYBACK REGISTRATION. Each time the Company shall determine
to proceed with the actual preparation and filing of a
registration statement under the Securities Act in connection
with the proposed offer and sale for money of any of its
common stock by it or any of its security holders, the Company
will give written notice of its determination to Consultant.
Upon the written request of Consultant given with ten(10) days
after receipt of any such notice from the Company, the Company
will, except as herein proved, cause all the Shares for which
the Consultant has so requested registration, to be included
in such registration statement, all to the extent requisite to
permit the sale or other disposition by the Consultant of the
Shares to be so registered; provided, however, that nothing
herein shall prevent the Company from, at any time, in good
faith abandoning or delaying any such registration initiated
by it. If any registration pursuant to this section shall be
underwritten in whole or in part, the Company may require that
the securities requested for inclusion pursuant to this
section be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the
underwriters. If, in the good faith judgment of the managing
underwriter of such public offering, the inclusion of all of
the securities originally covered by a request for
registration would reduce the number of shares to be offered
by the Company or interfere with the successful marketing of
the shares of common stock offered by the Company, the number
of securities otherwise to be included in the underwritten
public offering may be reduced pro rata among the holders
thereof requesting such registration to a number that the
managing underwriter believes will not adversely affect the
sale of shares by the Company. Those securities which are thus
excluded from the underwritten public offering, and any other
common stock owned by such holders, shall be withheld from the
market by the holders thereof for a period, not to exceed one
hundred eighty (180) days, which the managing underwriter
reasonably determines is necessary in order in effect the
underwritten public offering.
11. NOTICES. Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall
be deemed effectively given upon personal delivery or seven
business days after deposit in the United Sates Postal Service
by (a) advance copy by
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fax or (b) mailing by express courier or registered or
certified mail with postage and fees prepaid, addressed to
each of the Parties thereunto entitled at the following
addresses, or at such other addresses as a Party may designate
by ten (10) days advance written notice to each of the other
Parties hereto:
Company: Big Buck Brewery & Steakhouse
550 S. Wisconsin, P.O. Box 1430
Gaylord, MI 49734
Attn: William Rolinski
Telephone: (989) 731-0401
Fax: (989) 731-2788
Consultant: Morgan James & Associates
14 West Jones Street, Suite "D"
Savannah, GA 31401
Attn: Morgan J. Wilbur III
Telephone: (912) 790-3076
Fax: (912) 790-3079
IN WITNESS WHEREOF, the undersigned have set their hand and seal this
12th day of July, 2001.
Big Buck Brewery & Steakhouse, Inc. Morgan James & Associates
/s/ William F. Rolinski /s/ Morgan J. Wilbur III
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BY: William Rolinski BY: Morgan J. Wilbur III
ITS: President ITS:
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ATTACHMENT "A"
TO CONSULTING AGREEMENT DATED JULY 12, 2001
All fees to consultant, Morgan James & Associates, will be paid as follows:
1) Company shall pay an initial payment of UW $1,500 due at the
commencement of this contract, as well as an additional US
$3,000 per month for the length of the contract, the next
payment of which is due one month after the initial payment.
2) Upon execution, Company shall issue 125,000 shares of
Company's common stock to the Consultant. Said shares shall be
restricted subject to piggyback rights of registration as
outlined above.
In addition, forty-five (45) days from the date of
commencement of this Agreement, Company shall issue an
additional 75,000 shares of the Company's common stock to the
Consultant. Said shares shall be restricted and have piggyback
rights of registration as outlined above.
In addition, ninety (90) days from the date of commencement of
this Agreement, Company shall issue an additional 50,000
shares of the Company's common stock to the Consultant. Said
shares shall be restricted and have full rights of piggyback
registration as outlined above.
Consultant understands the issuance of stock in the company as
set forth above requires Board of Directors approval of this
agreement.
3) Consultant will be paid a fee of three percent (3%) of any
funds raised by Consultant on behalf of Company.
4) Consultant will be paid a fee of three percent (3%) of the
purchase price of any acquisition or merger made by or
involving Company, provided the third party involved in this
transaction was introduced to Company by Consultant.
5) Consultant will be paid a fee of five percent (5%) of the
total value of any contracts brought to the Company by
Consultant.