EXHIBIT 10.2
Kings Pointe Capital
515 Alta Vista Way . Laguna Beach, CA. 92651
Phone: (949) 715-7139 Fax: (949) 715-7149
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CORPORATE CONSULTING SERVICES AGREEMENT
This Corporate Consulting Services Agreement (the "AGREEMENT") is entered this
February 3, 2005 by and between Kings Pointe Capital ("CONSULTANT"), and Vista
Continental Corp., ("CLIENT" or "COMPANY"), a DE corporation, with reference to
the following:
Preliminary Statement
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A. The Client desires to be assured of the association and services of the
Consultant in order to avail itself of the Consultant's experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and
is therefore willing to engage the Consultant upon the terms and conditions
set forth herein. Consultant desires to be assured, and Client desires to
assure Consultant, that, if Consultant associates with Client and allocates
its resources necessary to provide Client with its services as Client
requires and expects, Consultant will be paid the consideration described
herein and said consideration will be nonrefundable, regardless of the
circumstances.
B. The Consultant agrees to be engaged and retained by the Client and upon the
terms and conditions set forth herein.
THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Engagement
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1. Client hereby engages Consultant on a non-exclusive basis, and Consultant
hereby accepts the engagement to become a financial consultant to the
Client and to render such advice, consultation, information, and services
to the Directors and/or Officers of the Client regarding general financial
and business matters including, but not limited to:
A. Corporate planning, strategy and negotiations with potential strategic
business partners and/or other general consulting needs as expressed
by Client.
B. Business development and business advertising.
C. Due diligence processes, capital structures, sources and financial
transactions.
D. Structuring and providing alternative sources for accounts receivable,
purchase order and other asset financing.
E. Banking methods and systems.
CORPORATE CONSULTING SERVICES AGREEMENT
F. E-Consulting providing business solutions.
G. Guidance and assistance in available alternatives to maximize
shareholder value.
H. Periodic reporting as to developments concerning the general financial
markets and public securities markets and industry which may be
relevant or of interest or concern to the Client or the Client's
business.
Periodic preparation and distribution of research reports and information to the
broker/dealer and investment banking community. It shall be expressly understood
that Consultant shall have no power to bind Client to any contract or obligation
or to transact any business in Client's name or on behalf of Client in any
manner.
It is expressly understood and agreed by Client that, in reliance upon Client's
representations, warranties and covenants contained herein, immediately upon
execution and delivery of this Agreement by Client, Consultant is setting aside
and allocating for the benefit of Client valuable resources (including, without
limitation, capital and reservation of work schedules of employees) required to
fulfill Consultant's obligations described in paragraph 1(B) hereof. In doing
so, Consultant agrees to forebear from undertaking other opportunities and
commitments (that would result in enrichment to Consultant) in order to be
available to provide Client the services contemplated by this Agreement.
Term
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2. The term ("TERM") of this Agreement shall commence on the date hereof and
continue for six (6) months. The Agreement may be extended upon agreement
by both parties, unless or until the Agreement is terminated. Either party
may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to
cure such violation within five (5) days of written notification of such
violation from the other party. Such cancellation shall not excuse the
breach or non-performance by the other party or relieve the breaching party
of its obligation incurred prior to the date of cancellation, including,
without limitation, the obligation of Client to pay the nonrefundable
consideration described in paragraph 4(B) hereof.
Due Diligence
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3. The Client shall supply and deliver to the Consultant all information
relating to the Client Company's business as may be reasonably requested by
the Consultant to enable the Consultant to make an assessment of the
Client's company and business prospects and provide the consulting services
described in paragraph 1(B) hereof.
Compensation and Fees
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4. As consideration for Consultant entering into this Agreement, Client agrees
to pay and deliver to Consultant the following consideration, which
consideration is nonrefundable regardless of the circumstances:
CORPORATE CONSULTING SERVICES AGREEMENT
A cash Engagement Fee ("ENGAGEMENT FEE") of ten thousand ($10,000) dollars,
(represents our initial Engagement Fee which is non-refundable) upon execution
of this agreement.
OR
The Engagement Fee may be satisfied by issuing certificates representing an
aggregate of twenty thousand ($20,000) dollars worth of 144 Restricted stock
("SHARES") at the bid price minus a 20% discount (represents our initial
Engagement Fee which is non- refundable) upon execution of this agreement.
The Shares, when issued as directed by Consultant, will be duly authorized,
validly issued and outstanding, fully paid and non-assessable, and will not be
subject to any liens or encumbrances. Securities shall be issued to Consultant
in accordance with a mutually acceptable plan of issuance as to relieve
securities or Consultant from restrictions upon transferability of shares in
compliance with applicable registration provisions or exemptions.
After careful review and extensive discussions and negotiations between Client
and Consultant and their advisors, Client agrees that, when received by
Consultant, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Client further acknowledges and agrees that said
consideration is earned by Consultant:
A. Upon Client's execution and delivery of the Agreement and prior to the
provision of any service hereunder;
B. In part, by reason of Consultant's agreement to make its resources
available to serve Client and as further described in the Preliminary
Statement and elsewhere herein; and
C. Regardless of whether Client seeks to terminate this Agreement prior
to consultant's delivery of any services hereunder.
If Client takes any action to terminate this Agreement or to recover any
consideration paid or delivered by Client to Consultant other than by reason of
Consultant's gross negligence or willful misconduct, Consultant shall be
entitled to all available equitable remedies, consequential and incidental
damages and reasonable attorneys' fees and costs incurred as a result thereof,
regardless of whether suit is filed and regardless of whether Client or
Consultant prevails in any such suit.
Representations, Warrants and Covenants
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5. The Client represents, warrants and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal capacity to enter into
this Agreement and to consummate the transactions which are provided for herein.
The execution of this Agreement by the Client and its delivery to the
Consultant, and the consummation by it of the transactions which are
contemplated herein have been duly
CORPORATE CONSULTING SERVICES AGREEMENT
approved and authorized by all necessary action by the Client's Board of
Directors and no further authorization shall be necessary on the part of the
Client for the performance and consummation by the Client of the transactions
which are contemplated by this Agreement.
The business and operations of the Client have been and are being conducted in
all material respects in accordance with all applicable laws, rules and
regulations of all authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Client or cause
acceleration under any arrangement, agreement or other instrument to which the
Client is a party or by which any of its assets are bound. The Client has
performed in all respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the terms of any such
agreement, contract or commitment.
Exclusivity; Performance; Confidentiality
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6. The services of Consultant hereunder shall not be exclusive, and Consultant
and its agents may perform similar or different services for other persons
or entities whether or not they are competitors of Client. The Consultant
agrees that it will, at all times, faithfully and in a professional manner
perform all of the duties that may be reasonably required of the Consultant
pursuant to the terms of this Agreement. Consultant shall be required to
expend only such time as is necessary to service Client in a commercially
reasonable manner.
The Consultant does not guarantee that its efforts will have any impact upon the
Company's business or that there will be any specific result or improvement from
the Consultant's efforts. Consultant acknowledges and agrees that confidential
and valuable information proprietary to Client and obtained during its
engagement by the Client, shall not be, directly or indirectly, disclosed
without the prior express written consent of the Client, unless and until such
information is otherwise known to the public generally or is not otherwise
secret and confidential.
Independent Contractor
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7. In its performance hereunder, Consultant and its agents shall be an
independent contractor. Consultant shall complete the services required
hereunder according to his own means and methods of work, shall be in the
exclusive charge and control of Consultant and which shall not be subject
to the control or supervision of Client, except as to the results of the
work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultant to provide services to Client at any specific time,
or in any specific place or manner. Payments to consultant hereunder shall
not be subject to withholding taxes or other employment taxes as required
with respect to compensation paid to an employee.
Arbitration and Fees
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CORPORATE CONSULTING SERVICES AGREEMENT
8. Any controversy or claim arising out of or relating to this Agreement, or
breach thereof, may be resolved by mutual agreement; or if not, shall be settled
in accordance with the Arbitration rules of the American Arbitration Association
in Irvine, California. Any decision issued there from shall be binding upon the
parties and shall be enforceable as a judgment in any court of competent
jurisdiction.
The prevailing party in such arbitration or other proceeding shall be entitled,
in addition to such other relief as many be granted, to a reasonable sum as and
for attorney's fees in such arbitration or other proceeding which may be
determined by the arbitrator or other officer in such proceeding. If collection
is required for any payment not made when due, the creditor shall collect
statutory interest and the cost of collection, including attorney's fees whether
or not court action is required for enforcement. The prevailing party in any
such proceeding shall also be entitled to reasonable attorneys' fees and costs
in connection all appeals of any judgment.
Notices
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9. Any notice or other communication required or permitted hereunder must be
in writing and sent by either (i) certified mail, postage prepaid, return
receipt requested and First Class mail, (ii) overnight delivery with
confirmation of delivery, or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: VISTA CONTINENTAL CORP.
Attention: Lawrence Nash
6600 West Charleston Blvd. Suite 118
Las Vegas, NV. 89146
Facsimile No.: (702) 501-7010
If to the Consultant: KINGS POINTE CAPITAL
Attention: Charlie Fuentes
515 Alta Vista Way
Laguna Beach, CA. 92651
Facsimile No.: (949) 715-7149
Or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand- delivered to the aforesaid addresses.
Each notice or communication shall be deemed to have been given as of the date
so mailed or delivered, as the case may be; provided, however, that any notice
sent by facsimile shall be deemed to have been given as of the date sent by
facsimile if a copy of such notice is also mailed by first class mail on the
date sent by facsimile; if the date of mailing is not the same as the date of
sending by facsimile, then the date of mailing by first class mail shall be
deemed to be the date upon which notice given.
Additional Provisions
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10. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision and no waiver shall
constitute a continuing waiver. No waiver shall be binding unless executed
in writing by the party making the waiver. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by
all parties.
This Agreement constitutes the entire agreement between the parties and
supersedes any prior agreements or negotiations. There are no third party
beneficiaries of this Agreement. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
Counterparts
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11. This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument
Preliminary Statement
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12. The Preliminary Statement is incorporated herein by this reference and made
a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the
date first written above.
"CLIENT"
VISTA CONTINENTAL CORP.
Signature: /s/ Lawrence Nash
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Print Name: Lawrence Nash
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Print Title: CHIEF EXECUTIVE OFFICER
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"CONSULTANT"
KINGS POINTE CAPITAL
Signature: /s/ Charlie Fuentes
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Print Name: Charlie Fuentes
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Print Title: MANAGING DIRECTOR
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