CONSULTING AGREEMENT
AGREEMENT, made this day of December, 2000 by and between Nexsan
Corporation, having its principal place of business at One Rockefeller Plaza,
New York, NY 10020, (hereinafter the "Company") and Direct Investors, LLC,
having its principal place of business at 39 Broadway, 32nd floor, New York, New
York 10006 (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.
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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) for any reason, by either party giving at least thirty (30) days
written notice to the other party at its address set forth on the first
page of this Agreement, or to such other address as either party may
specify to the other in writing in accordance with Section E hereof.
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;
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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 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.
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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
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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.
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.
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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 10022
and Nexsan Technologies Limited
Imperial House
East SSErvice 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: Direct Investors, LLC
39 Broadway, 32nd floor.
New York, New York 10006
Attn.: Mr. E. Corprew Reed
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with a copy to: Thelen Reid & Priest LLP
40 West 57th Street
New York, New York 10019-4097
Facsimile No.: (212) 603-2001
Attn: Bruce A. Rich
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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, President
BEECHTREE CAPITAL, LLC
By: /s/ E. Corprew Reed
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E. Corprew Reed
Managing Member