CONSULTING AGREEMENT
AGREEMENT, made this day 4TH of January 2001 by and between Nexsan
Corporation, having its principal place of business at Suite 1600, 1 Rockefeller
Plaza, New York, New York 10022 (hereinafter the "Company") and Beechtree
Capital, LLC, having its principal place of business at One Rockefeller Plaza,
New York, New York 10020 (hereinafter the "Consultant).
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with the Company's business and investment banking
affairs, and the Consultant desires to provide such services as set forth
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties, intending to
be legally bound, agree as follows:
A. CONSULTATION.
1. Consultant. The Company hereby retains the Consultant to render to the
Company the consulting services as defined in Section B hereof, and the
Consultant hereby accepts such assignment upon the terms and conditions
hereinafter set forth.
2. Independent Relationship. The Consultant shall provide the consulting
services required to be rendered by it hereunder solely as an independent
contractor and nothing contained herein shall be construed as giving rise to an
employment or agency relationship, joint venture, partnership or other form of
business relationship.
3. No Authority to Obligate the Company. Without the consent of the board
of directors or appropriate officer of the Company, the Consultant shall have no
authority to take, nor shall it take, any action committing or obligating the
Company in any manner, and it shall not represent itself to others as having
such authority.
4. Term. The term of the Consultant's consultation to the Company hereunder
shall commence as of the date hereof and shall extend for a term of five (5)
years unless the parties agree in writing to extend the consultation for an
additional one year term(s). Notwithstanding the foregoing, this Agreement may
be terminated at any time after four (4) years for any reason, by either party
giving at least ninety (90) days written notice to the other party, or by the
Company if the Consultant has willfully failed to use reasonable efforts to
perform its obligations hereunder and such willful failure continues for three
months after written notice specifying in reasonable detail the basis thereof.
Upon any termination of this Agreement, the Company shall:
(i) pay to the Consultant any previously accrued but unpaid
compensation, as contemplated by Section C hereof; and
(ii) pay any previously incurred but unpaid expenses, as contemplated by Section
D hereof.
B. OBLIGATIONS OF THE CONSULTANT.
1. Consulting Services. During the term of this Agreement, Consultant will
render advice and assistance to the Company on business related matters and in
connection therewith the Consultant shall:
a. evaluate the Company's managerial, marketing and sales performance,
including the furnishing of written reports upon the request of the
Company;
b. consult with the Company concerning ongoing strategic corporate
planning and long term investment policies, including any revision of the
Company's business plan;
c. assist in the negotiation of contracts with suppliers and major
customers when so requested by the Company;
d. consult with and advise the Company with regard to potential mergers
and acquisitions, whether the Company is the acquiring company or the
target of acquisition;
e. upon the request of the Company, Consultant will review press
releases to be made available to, among others, the press, customers,
suppliers, broker/dealers, financial institutions, and the Company's
shareholders; and
f. render such other services to the Company as its Board of Directors
may reasonably request.
2. Nonexclusive Engagement; Extent of Services.
a. The parties agree that the consultation contemplated by this
Agreement is a nonexclusive engagement and that the Consultant now renders
and may continue to render consulting services to other companies which may
or may not conduct activities similar to those of the Company.
b. The Consultant will devote such time and effort to the affairs of
the Company as the Consultant deems reasonable and adequate to render the
consulting services contemplated by this Agreement. The Consultant's work
will not include any services that constitute the rendering of any legal
opinions or performance of work that is in the ordinary purview of
certified public accountants.
3. Confidentiality. The Consultant will not, either during its engagement
by the Company pursuant to this Agreement or at any other time thereafter,
disclose, use or make known
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for its or another's benefit, any confidential information, knowledge, or data
of the Company or any of its affiliates in any way acquired or used by the
Consultant during its engagement by the Company. Confidential information,
knowledge or data of the Company and its affiliates shall not include any
information which is or becomes generally available to the public other than as
a result of a disclosure by the Consultant or its representatives.
C. COMPENSATION.
1. Cash Retainer. The Company will pay a monthly cash retainer of $8,333 to
the Consultant payable on the 1st day of each month for the entire term of this
Agreement.
2. Stock Purchase Rights. Contemporaneously herewith the Company is issuing
the issue Consultant stock purchase rights pursuant to a Restricted Stock
Purchase Agreement.
D. REIMBURSEMENT OF EXPENSES.
1. Out-of-Pocket Expenses. The Company shall reimburse the Consultant for
actual out-of-pocket expenses including, but not limited to, facsimile, postage,
printing, photocopying, and entertainment, incurred by the Consultant without
the prior consent of the Company and in connection with the performance by the
Consultant of its duties hereunder.
2. Travel and Related Expenses. The Company shall also reimburse the
Consultant for the costs of all travel and related expenses incurred by the
Consultant in connection with the performance of its services hereunder,
including, without limitation, costs and expenses incurred with respect to
travel to England; provided that all such costs and expenses have been
authorized, in advance, by the Company.
3. General. Expenses shall be due and payable when billed and after they
have been incurred.
E. MISCELLANEOUS.
1. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the engagement of Consultant by the Company as a
consultant and supersedes and replaces any and all prior understandings,
agreements or correspondence between the parties relating to the subject matter
hereof.
2. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both the parties
hereto. No waiver of any other provisions hereof (whether or not similar) shall
be binding unless executed in writing by both the parties hereto nor shall such
waiver constitute a continuing waiver.
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3. Governing Law. This Agreement has been made in and shall be interpreted
according to the laws of the State of New York without any reference to the
conflicts of laws rules thereof. The parties hereto submit to the jurisdiction
of the courts of the State of New York for the purpose of any actions or
proceedings which may be required to enforce any of the provisions of this
agreement.
4. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns and upon the
Consultant and the Consultant's successors and assigns.
5. Severability. If any provision or provisions of this agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever:
a. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion
of any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
b. to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this
agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
6. Further Assurances. From and after the execution and delivery of this
Agreement, upon request of either party, the other shall do, execute,
acknowledge and deliver all such further acts, assurances and other instruments
and papers as may be required to carry out the transactions contemplated by this
agreement.
7. Headings. The headings of the paragraphs of this agreement are inserted
for convenience only and shall not be deemed to constitute part of this
agreement or to affect the construction hereof.
8. Notices. Any notice to be given hereunder shall be given in writing. All
notices under this Agreement shall be either hand delivered receipt
acknowledged, or sent by registered or certified mail, return receipt requested
as follows:
(a) If to the Company,
to it at: Nexsan Corporation
Suite 1600
1 Rockefeller Plaza
New York, New York 10020
and Nexsan Technologies, Ltd.
Imperial House
-4-
East Service Road
Rayneway
Derby DE21 7BF
England
with a copy to: RubinBaum LLP
30 Rockefeller Plaza
New York, New York 10112
Attn.: Michael Emont, Esq.
Facsimile No.: (212) 698-7825
and Flint Bishop & Barnett
5 St. Michael's Court
St. Michael's Lane
Derby DEl 3JH
England
Attn.: Mr. Thomas Travers
Facsimile no. 011 44 (0)1332 207601
(b) If to the Consultant,
to it at: Beechtree Capital, LLC
One Rockefeller Plaza
New York, New York 10020
Attn.: Mr. George M. Weiss
with a copy to: Ruffa & Ruffa, P.C.
150 East 58th Street
New York, New York 10155
Facsimile No.:
Attn: William P. Ruffa, Esq.
All such notices shall be deemed given when delivered, if personally delivered
as aforesaid, or within five business days after mailing, as aforesaid.
9. Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
NEXSAN CORPORATION
By: /s/ Martin Boddy
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Martin Boddy, President
BEECHTREE CAPITAL, LLC
By: /s/ George M. Weiss
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George M. Weiss
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