Exhibit 10.11
[THE MILLER GROUP LOGO] THE MILLER GROUP
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Miller Management Corporation
Miller Capital Markets, LLC
Miller Capital Corporation
Miller Investments, Inc.
CONSULTING AGREEMENT
This Agreement is effective on February 14, 2010 (the "Effective Date") between
Global Entertainment Corporation (collectively with its subsidiaries and
affiliates, the "Company") and Miller Capital Corporation ("MCC"), pursuant to
which MCC will furnish to the Company certain services as set forth herein.
1. MCC SERVICES.
MCC will perform the following services for the Company pursuant to this
Agreement:
A. Financial consultation with respect to the Company's funding
requirements and projected associated costs; and
B. Advice and consultation with respect to financial structure and
markets, including (without limitation) advising the Company
regarding, and assisting with the arrangement and structure of private
and public placements of equity and debt financings; and
C. Advice and consultation with respect to potential merger, acquisition,
joint venture, divestiture and other transactions; and
D. Investor relations services; and
E. Preparation of various reports including such reports as; due
diligence review, business operations and financial plan, business
strategy and analysis, financial markets review, business valuation
analysis, fairness opinion, board and executive compensation plan and
analysis and other reports undertaken during the term of this
Agreement that are mutually agreed to with respect to content and
scope (each such report referred to hereinafter as a "Report
Assignment").
It is expressly acknowledged and agreed by the parties hereto that MCC is not
registered with the Securities and Exchange Commission (SEC) as a broker/dealer
or a member of the Financial Industry Regulatory Authority (FINRA). Miller
Capital Markets, LLC, an affiliate of MCC, is a registered broker/dealer and it
is expressly contemplated that any and all services of the type required under
applicable laws and regulations to be provided by a registered broker/dealer
would be provided to the Company by Miller Capital Markets, LLC pursuant to a
separate engagement agreement negotiated and entered into by such parties.
It is expressly acknowledged and agreed by the parties hereto that MCC and
employees and affiliates of MCC are independent contractors and are not
employees or officers of the Company. MCC shall act in the best interests of the
Company and its shareholders.
2. CERTAIN RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In connection with MCC's engagement, the Company will furnish MCC with all
information concerning the Company that MCC reasonably requests and will provide
MCC with reasonable access to the Company's officers, directors and controlling
4900 North Scottsdale Road, Suite 3800 * Scottsdale, Arizona 85251-7663 *
602.225.0505 * www.themillergroup.net
Investment banking services provided by Miller Capital Markets, LLC,
a FINRA member firm.
Global Entertainment Corporation
January 19, 2010
Page 2
shareholders. Upon prior written approval by the Company, MCC may have access to
the Company's legal and accounting professionals and, with prior written
approval from the Company, signed by the CEO, CFO, General Counsel or Board of
Directors, may utilize its own outside legal counsel and accounting
professionals at the Company's expense. The Company represents and warrants to
MCC that: (a) all such information is and will be true and accurate in all
material respects and does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading; and (b) any projected financial information or other forward-looking
information which the Company provides to MCC (including without limitation any
information compiled by MCC therefrom) will be made by the Company in good
faith, based on management's best estimates then available and based on facts
and assumptions which the Company believes to be reasonable. The Company
recognizes the necessity of promptly notifying MCC of all material developments
concerning the Company, its business and prospects and to supply MCC with all
such information as may be necessary for MCC to comply with its own internal
procedures as well as any legal or regulatory requirements. The Company
acknowledges and agrees that MCC will be using and relying upon all information
supplied by the Company and its officers, agents and others and any other
publicly available information concerning the Company without any independent
investigation or verification thereof or independent appraisal by MCC of the
Company or its business or assets.
3. CONFIDENTIALITY.
Information provided by the Company to MCC in connection with this Agreement
will be kept confidential and will only be used by MCC for purposes of its
engagement hereunder, except for information that (i) was in MCC's possession
prior to its disclosure by the Company, (ii) is publicly disclosed other than by
MCC in violation of this Agreement, (iii) is obtained by MCC from a person other
than the Company who, to the knowledge of MCC, is not under a confidentiality
obligation to the Company, (iv) the Company agrees may be disclosed, or (v) is
required to be disclosed under compulsion of law (whether by interrogatory,
subpoena, civil investigative demand or otherwise), by order or act of any court
or governmental or regulatory authority or body or by MCC's independent auditors
or accountants. MCC may also disclose such information to those of its own and
its affiliates' respective officers, directors, employees, auditors and
professional advisors who need to know such information for purposes of
performing the services described in this Agreement.
4. COMPENSATION AND FEES.
For services rendered under this Agreement, MCC shall receive the following
compensation and fees:
A. As compensation for the services set forth in section 1.A. through 1.D
above, the Company shall pay MCC a monthly service fee of $9,000 each
month for twelve (12) months throughout the term of this Agreement,
the first monthly payment of which is due on March 14, 2010 and
continuing on the same day each month thereafter.
B. The Company will pay MCC a fee with respect to substantive updates of
any previously issued Report, as well as other Report Assignments
undertaken thereafter pursuant to Section 1.E. of this Agreement. The
Company and MCC will negotiate in good faith appropriate compensation
for MCC, which will take into account, among other things, the custom
and practice among consultants and advisors providing similar
services. Payment for each Report Assignment shall be due and payable
on the date such report is presented to the Company.
C. With respect to any other payments for services provided to the
Company by MCC not otherwise covered under A and B above, the Company
and MCC will negotiate in good faith appropriate compensation for MCC,
which will take into account, among other things, the custom and
practice among consultants and advisors providing similar services.
D. Out-of-pocket expenses incurred by MCC in connection with the services
performed hereunder will be payable by the Company upon submission by
MCC of monthly invoices delineating such expense, provided that any
Global Entertainment Corporation
January 19, 2010
Page 3
expense over $1,000 must be approved in writing by the Company in
advance. Reimbursable travel expenses hereunder shall include
first-class air travel for the Chairman, CEO and President of MCC and
coach air travel for all other MCC travel. All amounts billed shall be
paid within fifteen (15) days following the date invoiced by MCC.
E. All amounts payable under this Agreement are nonrefundable, shall be
paid when due and shall be paid in immediately available funds in U.S.
dollars, without setoff and without deduction for any withholding,
value-added or other similar taxes, charges or fees.
5. RESTRICTED STOCK.
Effective on February 14, 2010, MCC will receive a restricted stock grant
consisting of 2,000 shares of the Company's common stock, fifty percent (50%) of
which will vest on the first anniversary of the date of grant, and the remaining
fifty percent (50%) of which will vest on the second anniversary of the date of
the grant, and shall contain such other terms and conditions (including, without
limitation, registration rights and accelerated vesting provisions) as shall
generally be applicable to restricted stock grants made to members of the
Company's Board of Directors pursuant to the Company's equity compensation
plans.
6. COMPANY COVENANT RE MCC EMPLOYEES.
The Company recognizes that client service officers and other employees of MCC
are necessary for the continued servicing by MCC of its several clients.
Accordingly, the Company will not, during the term of this Agreement, and for a
period twelve (12) month period after its termination, employ any client service
officer, account executive or other employee of MCC in any capacity.
7. ASSIGNMENT.
Except as stated below, the benefits of this Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
indemnified parties under such indemnification agreement and their respective
successors, permitted assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon their respective successors and assigns. This Agreement may not be assigned
without the prior written consent of the non-assigning party.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall
terminate in the event any person or entity (a "Successor Party") acquires or
otherwise succeeds to substantially all of the assets of the Company through a
Transaction, and any Successor Party shall have no obligations under this
Agreement. In the event of termination of this Agreement, pursuant to this
Section 7, any earned and unpaid obligations to MCC by the Company, as of the
date of closing for transfer of ownership, will be assumed by the Successor
Party and be paid to MCC within thirty (30) days.
8. INTEGRATION.
This writing constitutes the full and complete agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements with
respect thereto. This Agreement may not be modified by any method other than
another writing signed by the parties.
9. HEADINGS.
The paragraph headings have been inserted for convenience and shall not be
construed in a manner contrary to the text of this Agreement.
Global Entertainment Corporation
January 19, 2010
Page 4
10. ATTORNEY FEES.
In the event of any action or proceeding to enforce the provisions of this
Agreement, the prevailing party shall be entitled to its reasonable attorney
fees, such fees to be set by a judge and not by a jury and to be included in any
judgment entered in such action or proceeding.
11. INDEMNIFICATION.
Because MCC will be acting for the benefit of the Company in connection with
this engagement, the Company agrees to indemnify MCC and certain other persons,
as set forth in the indemnification provisions attached hereto as Exhibit A, the
provisions of which are incorporated herein in its entirety. The provisions of
this section shall survive any termination of the engagement that is the subject
of this letter.
12. PUBLICITY.
The Company approves the use by MCC of the Company's name and/or logo in
publicity that includes tombstones and advertising related materials used
exclusively by MCC. MCC agrees to obtain prior approval, which approval will not
be unreasonably withheld, for the use of the Company's name or logo in any other
circumstance.
13. EFFECTIVE DATE AND TERM.
This Agreement shall be effective on the Effective Date and shall continue in
effect for a period of twelve (12) months thereafter; and provided, that the
expiration of this Agreement shall not relieve the Company of any obligation to
MCC for amounts earned or accrued hereunder through the expiration date.
14. EXCLUSIVITY.
MCC will be the Company's exclusive financial advisor, and the Company covenants
and agrees that it will not engage any other person or entity (other than
affiliates of MCC) to provide services similar to those to be provided by MCC
hereunder without the prior written consent of MCC. Without limiting the
preceding sentence, in no event shall any obligation directly or indirectly
incurred by or on behalf of the Company or any other person or entity for fees
or expenses payable to any other party (including, without limitation, any other
advisor or consultant) reduce, impair or otherwise affect the fees payable to
MCC hereunder.
15. NOTICE.
All notices and other written communications required to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered to the addressee in person or mailed by registered or certified mail,
return receipt requested, to the following addresses:
If to MCC: Miller Capital Corporation
4900 North Scottsdale Road, Suite 3800
Scottsdale, Arizona 85251-7663
Attention: Rudy R. Miller
If to the Company: Global Entertainment Corporation
1600 North Desert Drive, Suite 301
Tempe, Arizona 85281-1230
Attention: Rick Kozuback
Global Entertainment Corporation
January 19, 2010
Page 5
Either party may change the address at which notice is to be given by notifying
the other party in writing. Notices shall be deemed delivered upon delivery, if
personally delivered, or, if mailed, three (3) days after deposit in the United
States mail.
16. APPLICABLE LAW.
The validity and interpretation of this Agreement shall be governed by the laws
of the State of Arizona, without giving effect to the State of Arizona's choice
of law principles, and all actions arising under this Agreement or arising out
of the operative facts represented by services performed pursuant to this
Agreement shall be resolved in the courts of the State of Arizona.
AGREED AND ACCEPTED:
Please confirm that the foregoing correctly sets forth our mutual
understanding by signing and returning the copy of this Agreement provided for
that purpose.
Global Entertainment Corporation Miller Capital Corporation
Rick Kozuback Rudy R. Miller
By: /s/ Rick Kozuback By: /s/ Rudy R. Miller
--------------------------------- ---------------------------------
Name: Rick Kozuback Name: Rudy R. Miller
Title: President and CEO Title: Chairman, President and CEO
EXHIBIT A
In connection with the engagement, the Company agrees to indemnify and hold
harmless MCC and its affiliates, their respective directors, officers,
controlling persons , if any, agents and employees of MCC or any of MCC's
affiliates (collectively, "Indemnified Persons" and individually, an
"Indemnified Person") from and against any and all actions, claims, suits,
proceedings, liabilities, losses, damages and expenses incurred, joint or
several (collectively, "Claims"), by any Indemnified Person which are related to
or arise from MCC's engagement by the Company, including Claims that relate to
or arise from any actions taken or omitted to be taken (including any untrue or
alleged untrue statements made or any statements omitted or alleged to be
omitted) by the Company or which relate to or arise from securities laws or any
other law or legal theory, and will reimburse MCC and any other Indemnified
Person for all costs and expenses, as they are incurred, in connection with
investigating, preparing for, providing depositions for, testifying in or
defending any such action or claim, formal or informal, investigation, inquiry
or other proceeding, whether or not in connection with pending or threatened
litigation, whether or not MCC or any Indemnified Person is named as a party
thereto and whether or not any liability results therefrom related to or arising
from the foregoing (collectively, "Costs"). The Company will not, however, be
responsible for (a) any amount paid in settlement of Claims without the
Company's consent unless such consent is unreasonably withheld, or (b) any
Claims which are found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have resulted directly and primarily from an
Indemnified Person's gross negligence or willful misconduct.
Promptly after MCC receives notice of the commencement of any action or
other proceeding in respect of which indemnification or reimbursement may be
sought hereunder, MCC will notify the Company thereof; but the omission so to
notify the Company shall not relieve the Company from any obligation hereunder
unless, and only to the extent that, such omission results in the Company's
forfeiture of substantive rights or defenses. If any such action or other
proceeding shall be brought against any Indemnified Person, the Company shall,
upon written notice given reasonably promptly following MCC's notice to the
Company of such action or proceeding, be entitled to assume the defense thereof
at the Company's expense with counsel chosen by the Company and reasonably
satisfactory to such Indemnified Person; provided, however, that any Indemnified
Person may at its own expense retain separate counsel to participate in such
defense. Notwithstanding the foregoing, such Indemnified Person shall have the
right to employ separate counsel at the Company's expense and to control its own
defense of such action or proceeding if, in the reasonable opinion of counsel
retained by the Company, (i) there are or may be legal defenses available to
such Indemnified Person or to other Indemnified Persons that are different from
or additional to those available to the Company, or (ii) a difference of
position or potential difference of position exists between the Company and such
Indemnified Person; which in either case would make it ethically impermissible
for such counsel to represent all potential defendants; provided, however, that
in no event shall the Company be required to pay fees and expenses under this
indemnity for more than one firm of attorneys (in addition to local counsel) in
any jurisdiction in any one legal action or group of related legal actions,
regardless of the number of Indemnified Persons involved or potentially involved
in such action or group of related actions.
The Company agrees that neither MCC nor any other Indemnified Person shall
have any liability to the Company for or in connection with such engagement
except liability for Claims which are found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have resulted directly
and primarily from an Indemnified Person's gross negligence or willful
misconduct. The Company also agrees that the Company will not, without the prior
written consent of MCC, settle or compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which indemnification
may be sought hereunder (whether or not MCC or any Indemnified Person is an
actual or potential party to such Claim). No such settlement, compromise or
consent shall impose any material obligation on MCC or any other Indemnified
Person or contain any admission of culpability on the part of MCC or any
Indemnified Person. Such settlement, compromise or consent shall include an
unconditional release of MCC and each other Indemnified Person from all
liability arising out of such Claim, and the Company shall furnish MCC with a
copy of such settlement reasonably in advance of entering into such settlement.
In order to provide for just and equitable contribution, if a demand for
indemnification or reimbursement for Claims or Costs is made pursuant to these
provisions but is not available for any reason, then the Company, on the one
hand, and MCC, on the other hand, shall contribute to such Claims or Costs for
which such indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to the Company, on
the one hand, and MCC on the other hand, in connection with the transaction or
Page 2
transactions from which the Claims or Costs in question arose. The relative
benefits received by the Company, on the one hand, and by MCC, on the other
hand, shall be deemed to be in the same proportion as the value (before
deducting expenses) of the consideration paid by or received by the Company or
its stockholders or comparable equity owners, as the case may be, in connection
with the transaction or transactions from which the Claims or Costs in question
arose bears to the total fees actually received by MCC in connection therewith.
If the allocation provided by the foregoing sentence is not permitted by
applicable law, then such allocation shall be based not only on such relative
benefits determined as aforesaid but also on the relative fault of the Company,
on the one hand, and MCC, on the other, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, the parties' relative intents, knowledge,
access to information and, if applicable, whether any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by MCC, and any
other equitable considerations appropriate in the circumstances. Any such
contribution shall be subject to the limitation that in any event MCC's
aggregate contribution to all Claims or Costs for which contribution is
available hereunder shall not exceed the amount of fees actually received by MCC
pursuant to the particular engagement relating to the transaction or
transactions from which the Claims or Costs in question arose.
The foregoing rights to indemnity, reimbursement and contribution shall be
in addition to any rights that MCC and/or any other Indemnified Person may have
at common law or otherwise. The Company hereby consents to personal
jurisdiction, service of process and venue in any court in which any Claim which
is subject hereto is brought against MCC or any other Indemnified Person.
In connection with MCC's engagement of even date herewith, MCC may also be
engaged to act for the Company in one or more additional capacities. The terms
of any such engagement may be embodied in one or more separate written
agreements. These indemnification provisions shall apply to the engagement of
even date herewith, all such other engagements (whether written or oral) and any
modification thereof and shall remain in full force and effect following the
completion or termination of any such engagement.