1
EXHIBIT 10.22
BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated October 9, 2000 and is
entered into by and between CORPAS INVESTMENTS, INC. (hereinafter "CPIM" or
"CLIENT") and WINDSOR PARTNERS, INC. (hereinafter "WPI").
1. Conditions. This Agreement will not take effect, and WPI will have no
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to WPI (either by mail or
facsimile copy). In addition, CLIENT shall be truthful with WPI in
regard to any relevant or material information provided by CLIENT,
verbally or otherwise which refers, relates, or otherwise pertains to
the CLIENT's business, this Agreement or any other relevant
transaction. Breach of either of these conditions shall be considered a
material breach and will automatically grant WPI the right to terminate
this Agreement and all moneys, and other forms of compensation, paid or
owing as of the date of termination by WPI shall be forfeited without
further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate
with WPI in carrying out the purposes of this Agreement, keep WPI
informed of any developments of importance pertaining to CLIENT's
business and abide by this Agreement in its entirety.
2. Scope and Duties. During the term of this Agreement, WPI will
perform the following services for CLIENT:
2.1 Advice and Counsel. WPI will provide advice and counsel
regarding CLIENT's strategic business plans, strategy and negotiations
with potential business strategic partnering, corporate planning and or
other general business consulting needs as expressed by CLIENT.
2.2 Mergers and Acquisitions. WPI will provide assistance to
CLIENT, as mutually agreed, in identifying merger and/or acquisition
candidates, assisting in any due diligence process, recommending
transaction terms and providing advice and assistance during
negotiations, as needed.
2.3 CLIENT and/or CLIENT's Affiliate Transaction Due Diligence.
WPI will participate and assist CLIENT in the due diligence process,
where possible, on all proposed financial transactions affecting CLIENT
of which WPI is notified in writing in advance, including conducting
investigation of and providing advice on the financial, valuation and
stock price implications of the proposed transaction(s).
2.4 Ancillary Document Services. If necessary, WPI will assist and
cooperate with CLIENT in the development, editing and production of
such documents as are reasonably necessary to assist in any transaction
covered by this Agreement. However, this Agreement will not include the
preparation or procuring of legal documents or those documents normally
prepared by an attorney.
2.5 Additional Duties. CLIENT and WPI shall mutually agree, in
writing, for any additional duties that WPI may provide to CLIENT for
compensation paid or payable by CLIENT under this Agreement. Although
there is no requirement to do so, such additional agreement(s) may be
attached hereto and made a part hereof by written amendments to be
listed as "Exhibits" beginning with "Exhibit A" and initialed by both
parties.
2.6 Standard of Performance. WPI shall devote such time and
efforts to the affairs of the CLIENT as is reasonably necessary to
render the services contemplated by this Agreement. Any work or task of
WPI provided for herein which requires CLIENT to provide certain
information to assist WPI in completion of the work shall be excused
(without effect upon any obligation of CLIENT) until such time as
CLIENT has fully provided all information and cooperation necessary for
WPI to complete the work. The services of WPI shall not include the
rendering of any legal opinions or the performance of any work that is
in the ordinary purview of a certified public accountant, or other
licensed professional. WPI cannot guarantee results on behalf of
CLIENT, but shall use commercially reasonable efforts in providing the
services listed above. If an interest is communicated to WPI regarding
satisfying all or part of CLIENT's business and corporate strategic
planning needs, WPI shall notify CLIENT and advise it as to the source
of such interest and any terms and conditions of such interest.
2.7 Non-Guarantee. WPI MAKES NO GUARANTEE THAT WPI WILL BE ABLE TO
SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN
CONSUMMATE A MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO
SUCCESSFULLY COMPLETE
2
SUCH A TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER ANYTHING
IN THIS AGREEMENT TO THE CONTRARY NOR THE PAYMENT OF DEPOSITS TO WPI BY
CLIENT PURSUANT TO FEE AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN
SHALL BE CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING
POTENTIAL TIME FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF
CLIENT'S NEEDS ARE EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES OF
THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3. Compensation to WPI.
3.1 CLIENT will pay for services described herein. The fees shown
below (which summarize those outlined in 3.2, and 3.3 below) shall be
payable as follows:
INITIAL PAYMENT DUE UPON ACCEPTANCE OF THIS AGREEMENT:
32,500 RESTRICTED SHARES OF COMMON STOCK OF CPIM, SUBJECT TO THE
CLIENT'S OBLIGATION TO REGISTER THE SHARES PURSUANT TO FORM S-8 OF THE
SECURITIES EXCHANGE ACT OF 1934;
NOTE: WPI SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY WPI WITHIN 7
DAYS OF MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION,
WPI'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE SUSPENDED IF ANY
PAYMENT OWING HEREUNDER IS MORE THAN FIFTEEN (15) DAYS DELINQUENT.
FURTHERMORE, THE RECEIPT OF ANY FEES DUE TO WPI UPON EXECUTION OF THIS
AGREEMENT ARE NOT CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY DUTIES
WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 Fees for Merger/Acquisition. In the event that WPI, assists
CLIENT and/or introduces CLIENT (or a CLIENT affiliate) to any third
party, merger partner(s) or joint venture(s) who then enters into a
merger, joint venture or similar agreement with CLIENT or CLIENT's
affiliate, CLIENT hereby agrees to pay WPI advisory fees pursuant to
the following schedule which are based on the aggregate amount of such
merger, joint venture or similar agreement with CLIENT or CLIENT's
affiliate. Advisory fees are deemed earned and shall be due and payable
at the first close of the transaction, however, in certain
circumstances when payment of advisory fees at closing is not possible,
within 24 hours after CLIENT has received the proceeds of such
investment. This provision shall survive this Agreement for a period of
one year after termination or expiration of this Agreement. In other
words, the advisory fee shall be deemed earned and due and payable for
any funding, underwriting, merger, joint venture or similar transaction
which first closes within a year of the termination or expiration of
this Agreement as a result of an introduction as set forth above.
Merger/Acquisition. For a merger/acquisition entered into by CLIENT as
a result of the efforts of, or an introduction by WPI during the term
of this Agreement, Client shall pay WPI, five (5) percent of the total
value of the transaction. Such percentage shall be paid to WPI in the
same ratio of cash and/or stock as the transaction.
3.3 Expenses. CLIENT shall reimburse WPI for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging,
and long distance telephone and facsimile charges); provided, however,
that WPI must receive prior written approval from CLIENT for any
expenses over $250. Such reimbursement shall be payable within 7 seven
days after CLIENT's receipt of WPI invoice for same.
3.4 Additional Fees. CLIENT and WPI shall mutually agree upon any
additional fees that CLIENT may pay in the future for services rendered
by WPI under this Agreement. Such additional agreement(s) may, although
there is no requirement to do so, be attached hereto and made a part
hereof as Exhibits beginning with Exhibit A.
4. Indemnification. The CLIENT agrees to indemnify and hold harmless WPI,
each of its officers, directors, employees and shareholders against any
and all liability, loss and costs, expenses or damages, including but
not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever or howsoever caused by reason of
any injury (whether to body, property, personal or business character
or reputation) sustained by any person or to any person or property,
arising out of any act, failure to act, neglect, any untrue or alleged
untrue statement of a material fact or failure to state a material fact
which thereby makes a
3
statement false or misleading, or any breach of any material
representation, warranty or covenant by CLIENT or any of its agents,
employees, or other representatives. Nothing herein is intended to nor
shall it relieve either party from liability for its own willful act,
omission or negligence. All remedies provided by law, or in equity
shall be cumulative and not in the alternative.
5. Confidentiality.
5.1 WPI and CLIENT each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests. WPI
and CLIENT shall each require their employees, agents, affiliates,
other licensees, and others who will have access to the information
through WPI and CLIENT respectively, to first enter appropriate
non-disclosure Agreements requiring the confidentiality contemplated by
this Agreement in perpetuity.
5.2 WPI will not, either during its engagement by the CLIENT
pursuant to this Agreement or at any time thereafter, disclose, use or
make known for its or another's benefit any confidential information,
knowledge, or data of the CLIENT or any of its affiliates in any way
acquired or used by WPI during its engagement by the CLIENT.
Confidential information, knowledge or data of the CLIENT and its
affiliates shall not include any information that is, or becomes
generally available to the public other than as a result of a
disclosure by WPI or its representatives.
6. Miscellaneous Provisions.
6.1 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of WPI and CLIENT.
6.2 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. The obligations
of either party hereunder cannot be assigned without the express
written consent of the other party.
6.3 Governing Law; Venue. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the State of California, without regard to
its conflict of law doctrine. CLIENT and WPI agree that if any action
is instituted to enforce or interpret any provision of this Agreement,
the jurisdiction and venue shall be Orange County, California.
6.4 Attorneys' Fees and Costs. If any action is necessary to
enforce and collect upon the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees and costs, in
addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
6.5 Survivability. If any part of this Agreement is found, or
deemed by a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder of the
Agreement.
7. Arbitration. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN
CLIENT, WPI OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES,
ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER
PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF
THIS AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN
THROUGH LITIGATION. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND
DIFFERENT FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK
MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE
ANY AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION
TO THE AMERICAN ARBITRATION ASSOCIATION, IN ORANGE COUNTY, CALIFORNIA
WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM
THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION
PROCEEDING, BUT IS UNDER NO OBLIGATION TO DO SO;
4
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL
TAKE PLACE IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN
EFFORT TO RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING
ARBITRATION OR SHALL UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY
ARBITRATION FORUM LOCATED IN ORANGE COUNTY, CALIFORNIA, OVER ANY MATTER
WHICH IS THE SUBJECT OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER FROM THE LOSING PARTY ITS LEGAL FEES AND ANY
OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF SUCH
LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO ARBITRATION AS
PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING
FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR
JUDGMENT AND EXECUTION FOR COLLECTION.
8. Term/Termination. This Agreement is an agreement for the term of
approximately twelve (12) months ending October 8, 2001.
9. Registration Of Shares. WPI shall have standard piggyback registration
rights (as described in Section 3.2 herein) of all shares issued in
accordance with this Agreement, which are not subject to registration
per Section 3.0 et seq. herein.
10. Non Circumvention. In and for valuable consideration, CLIENT hereby
agrees that WPI may introduce (whether by written, oral, data, or other
form of communication) CLIENT to one or more opportunities, including,
without limitation, natural persons, corporations, limited liability
companies, partnerships, unincorporated businesses, sole
proprietorships and similar entities (hereinafter an "Opportunity" or
""Opportunities""). CLIENT further acknowledges and agrees that the
identity of the subject Opportunities, and all other information
concerning an Opportunity (including without limitation, all mailing
information, phone and fax numbers, email addresses and other contact
information) introduced hereunder are the property of WPI, and shall be
treated as confidential and proprietary information by CLIENT, it
affiliates, officers, directors, shareholders, employees, agents,
representatives, successors and assigns. CLIENT shall not use such
information, except in the context of any arrangement with WPI in which
WPI is directly and actively involved, and never without WPI's prior
written approval. CLIENT further agrees that neither it nor its
employees, affiliates or assigns, shall enter into, or otherwise
arrange (either for it/him/herself, or any other person or entity) any
business relationship, contact any person regarding such Opportunity,
either directly or indirectly, or any of its affiliates, or accept any
compensation or advantage in relation to such Opportunity except as
directly though WPI, without the prior written approval of WPI. WPI is
relying on CLIENT's assent to these terms and their intent to be bound
by the terms by evidence of their signature. Without CLIENT's signed
assent to these terms, WPI would not introduce any Opportunity or
disclose any confidential information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CORPAS INVESTMENTS, INC. (CPIM)
Print Name: Molly A. Miles
-------------------------------
Sign Name: /s/ Molly A. Miles
--------------------------------
Title: CEO
------------------------------------
Date: 10/11/00
-------------------------------------
Address: 1640 Fifth Street
----------------------------------
Santa Monica, CA 90401
----------------------------------
WINDSOR PARTNERS, INC. (WPI)
Print Name: Richard H. Walker Address: 30100 Crown Valley Parkway - Suite 11C
Sign Name: /s/ Richard H. Walker Laguna Niguel, CA 92677
-----------------------
Title: President
Date: 10/11/00
-----------------------