IC Enterprises, LLC
Consulting Agreement
This Agreement is made as of this 1st day of October, 1998, by and between
Streamedia Communications, LLC, a private corporation ("Company" or
"Streamedia") with its principal offices at 9 East 45th , and IC Enterprises,
LLC, a Maryland, USA Limited Liability Company ("ICE") with its principal
offices at 15245 Shady Grove Road, Suite 400 Rockville, Maryland 20850.
Witnesseth
WHEREAS, the Company requires expertise in the areas of business development and
finance to support it's business and growth and desires to engage ICE to provide
such services and specifically to seek potential merger candidates and/or
introduce the Company to investors who may be interested in providing financing
to the Company; and
WHEREAS, ICE, through its principals, agents and employees, has certain
expertise in the areas business development and finance, as well as expertise in
the evaluation of potential business opportunities and the implementation of
various projects of the nature and type contemplated by the Company in its
future expansion and development which ICE has agreed to provide to the Company;
NOW, THEREFORE, in consideration of the premise and the mutual promises and
covenants contained herein and subject specifically to the conditions hereof,
and intending to be legally bound thereby, the parties agree as follows:
1. Appointment of ICE
The Company hereby appoints ICE, and ICE agrees to represent the Company, as a
non-exclusive consultant to assist the Company in identifying entities or
individuals who may wish to provide financing for the Company, to assist the
Company in identifying possible merger candidates for the Company, and to assist
in the contemplated marketing and development of the Company. ICE shall have the
right during the term of this agreement to represent to the public that it is a
consultant to the Company.
2. ICE's Rights and Duties
(a) ICE shall use its best efforts to introduce the Company to entities or
individuals who may be interested in providing financing to the Company, as well
as possible merger candidates. Thereafter, ICE shall use its best efforts to
assist the Company in structuring and effecting financing, merger, acquisition
or such other transaction as is agreed to by the Company and ICE.
(b) To perform its duties hereunder, ICE may perform valuation analyses of the
Company, all required due diligence, and to make presentations regarding the
Company to potential merger candidates, lenders, investors and underwriters,
coordinate visits of potential merger candidates, lenders, investors and
underwriters with the Company and assist the Company in negotiations with such
parties as are necessary.
3. Company Information
In connection with ICE's performance of its duties hereunder, the Company shall
(i) provide ICE, on a timely basis, all information reasonably requested by ICE,
and (ii) make its officers and professionals available to ICE and such third
parties as ICE shall designate at reasonable times and upon reasonable notice.
4. Confidential Information
ICE acknowledges that, in the course of performing its duties hereunder, it may
obtain information relating to the Company which the Company has marked as
confidential or otherwise identified in writing as confidential ("Confidential
Information"). ICE shall hold at all times, both during the term of this
agreement and at all times thereafter, such Confidential Information in the
strictest confidence, and shall not use such Confidential Information for any
purpose, other than as may be reasonably necessary for the performance of its
duties pursuant to this agreement, without the Company's prior written consent.
ICE shall not disclose any Confidential Information to any person or entity,
other than to ICE's employees or consultants as may be reasonably necessary for
purposes of performing its duties hereunder, without the Company's prior written
consent. The foregoing notwithstanding, the term "Confidential Information"
shall not include information which (i) becomes generally available to the
public, other than as a result of a breach hereof, (ii) was available on a
non-confidential basis prior to its disclosure to ICE by the Company, or (iii)
becomes available to ICE on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a confidentiality
agreement with respect to such information. The foregoing notwithstanding, ICE
may disclose Confidential Information to the extent required by law or
regulation, including but not limited to court orders, subpoenas, civil
investigative demands and interrogatories.
5. Compensation
6. (a) In consideration for ICE's services hereunder, the Company agrees to pay
ICE a fee of $26,500. In addition, the Company agrees to issue 6,000 common
shares of the Company to ICE. The Company agrees to issue to ICE common shares
and/or options of the Company on the date of closing that are non-restricted and
free trading, except as they are restricted by SEC rules.
For the purposes of this Agreement, a party shall be considered to have
been "introduced to the Company through ICE" if such a party was introduced to
the Company in writing either directly or indirectly by ICE, its agents or
employees.
6. Expense Reimbursement
Regardless of whether an equity financing, debt financing, merger, acquisition
or similar transaction occurs, the Company shall reimburse ICE periodically for
its reasonable out-of-pocket expenses (excluding compensation to ICE's
employees), including the fees and disbursements of ICE's attorneys arising from
ICE's performance hereunder. ICE will seek written authorization from the
Company prior to incurring any expense over $250.00
7. Mutual Indemnification for Securities Law Violations
The Company warrants that during the term of this Agreement the Company will not
make, any untrue statement of any material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in connection with any memoranda, prospectus or any other public
filing or documents to be provided to potential merger candidates, investors or
underwriters. ICE warrants that during the term of this Agreement, it will not
make any untrue statements of a material fact or omit to state a material fact
required to be stated or necessary to make any statement made not misleading in
connection with any memoranda, prospectus or any other public filing or
documents to be provided to potential merger candidates, investors or
underwriters. Each party hereto will indemnify and hold harmless the other party
(including each of its directors, officers, employees, partners and agents) with
respect to any liability (and actions in respect thereof) incurred by such other
party by virtue of the indemnifying party's breach of the foregoing warranties
and shall reimburse each indemnified party for any legal or other expenses
reasonably incurred in connection with investigating or defending any such
liability or action, provided that the indemnifying party shall have the right
to control the defense of any claim giving rise to such liability and no such
claim shall be settled without the consent of the indemnifying party. The
foregoing provisions shall survive termination of this Agreement and any
investigation with respect thereto by any party hereto.
8. Other Engagements
The Company acknowledges that ICE is and will be acting as a consultant to other
business enterprises seeking services normally provided by ICE and agrees that
ICE's provision of services to such enterprises shall not constitute a breach
hereof or of any duty owed to the Company by virtue of this agreement.
9. Term
This agreement is effective upon execution by the Company as provided below and
shall continue in effect until terminated by either party.
10. Termination
Either party may terminate this agreement at any time and for any reason, with
or without cause, upon the giving 30 days written notice of termination to the
other party; provided, however, that ICE shall be entitled to full compensation
as determined pursuant to Section 5 for any equity financing, debt financing,
merger, acquisition or other transaction completed with any party introduced to
the Company in writing, either directly or indirectly by ICE, its agents or
employees, that occurs within two (2) years from the termination date,
regardless of the reason for the termination.
11. General Provisions
(a) This agreement shall be governed by and under the laws of the State of
Maryland, USA without giving effect to conflicts of law principles. If any
provision hereof is found invalid or unenforceable, that part shall be amended
to achieve as nearly as possible the same effect as the original provision and
the remainder of this agreement shall remain in full force and effect.
(b) Any dispute arising under or in any way related to this agreement shall be
submitted to binding arbitration by the American Arbitration Association in
accordance with the Association's commercial rules then in effect. The
arbitration shall be conducted in Rockville, Maryland. The arbitration shall be
binding on the parties and the arbitration award may be confirmed by any court
of competent jurisdiction.
(c) This agreement constitutes the entire agreement and final understanding of
the parties with respect to the subject matter hereof and supersedes and
terminates all prior and/or contemporaneous understandings and/or discussions
between the parties, whether written or verbal, express or implied, relating in
any way to the subject matter hereof. This agreement may not be altered,
amended, modified or otherwise changed in any way except by a written agreement,
signed by both parties.
(d) Any notice or other communication pursuant hereto shall be given to a party
at its address first set forth above by (i) personal delivery, (ii) commercial
overnight courier with written verification of receipt, or (iii) registered or
certified mail. If so mailed or delivered, a notice shall be deemed given on the
earlier of the date of actual receipt or three (3) days after the date of
authorized delivery.
(e) This agreement may be executed in counterparts, each one of which shall
constitute an original and all of which taken together shall constitute one
document.
12. Independent Contractor
In providing Services to the Company under this Agreement, ICE shall be an
independent contractor, and no party to this Agreement shall make any
representations or statements indicating or suggesting that any joint venture,
partnership, or other such relationship exist between the ICE and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first written above.
IC Enterprises, LLC
By:_____________________________
Mark Elenowitz
Managing Director
Streamedia Communications, LLC
By:_____________________________
James Rupp
CEO & President (Seal)