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Sample Business ContractsHome: Sample Business Contracts:
August 22, 2003
Mr. Richard Kozuback President and Chief Executive Officer GLOBAL ENTERTAINMENT CORPORATION 4909 East McDowell Road, Suite 104 Phoenix, Arizona 85008-4293
Re: Third Renewal Agreement
Dear Rick:
It has been our pleasure to work with you and to have Global Entertainment Corporation as a client since 1999. We are pleased to enter into this our third renewal of the original agreement dated October 8, 1999. This agreement (the Agreement) shall become effective upon the closing of the Agreement and Plan of Merger and Reorganization between Global Entertainment Corporation, Global Entertainment Acquisition Corp. and Cragar Industries, Inc., dated June 13, 2003 (the Effective Date).
Therefore, this letter sets forth the third renewal of the exclusive financial advisory agreement between Miller Capital Corporation, an Arizona corporation (MCC), and Global Entertainment Corporation, a Nevada corporation, (hereinafter Global or the Company) in connection with MCC acting as a management consultant to the Company and the exclusive financial advisor for Global, its subsidiaries and any new enterprise established and owned by the Company, existing or proposed, for such consulting and financing services as required by the Company, which services are to include negotiating and exploring financings as may be required for Global or any new entity (Entity) created to finance and operate developments by the Company, and when applicable to serve as Investor Relations Counsel to Global, a public company, during the term of this Agreement. MCC will assist Global as their management consultant and exclusive financial advisor, and investor relations counsel as detailed in this Agreement.
Subject to the terms and conditions hereof, MCC services will include, among other things, management consulting services that encompass reviewing the Companys financial position and projections relating to the Companys capital requirements, analyzing the pro forma effects of a financing on such projections, rendering advice on methods of structuring financing, assisting the Company in approaching and negotiating
with selected enterprises or individuals for potential equity or debt investment (Financing) and, when applicable, MCC will also provide critical investor relations services that a developing public company requires.
It is expressly acknowledged and agreed by the parties hereto that MCCs obligations do not insure the successful negotiation of or obtaining of any type of Financing for the Company and any efforts for obtaining financing shall be on a best efforts basis only. MCC is not registered with the Securities and Exchange Commission (SEC) as a broker/dealer or a member of the National Association of Securities Dealers (NASD). MCCs principal is a registered member in good standing of the Institute of Management Consultants headquartered in Washington, D.C.
It is expressly acknowledged and agreed by the parties hereto that MCC and employees of MCC are independent contractors and are not employees or officers of the Company.
In connection with MCCs activities on behalf of the Company, the Company will continue to furnish MCC with all information concerning the Company (Information) which MCC reasonably deems appropriate and will provide MCC with reasonable access to accountants and counsel of the Company. The Company and its officers represent that all Information relating to the Company, including but not limited to the Company financial statements, made available to MCC by the Company will be complete and correct in all material respects and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to avoid making the statements therein misleading. In rendering its services hereunder, MCC will be using and relying primarily on the Information without independent verification thereof, and MCC does not assume responsibility for the accuracy or completeness of the Information.
MCC will accept and hold such Information in complete confidence for their use as contemplated hereby. MCC will only disclose the Information to prospective investors or their employees, attorneys, accountants, agents, bankers, or advisors and consultants who shall reasonably need to know the Information in order to assist MCC or the Company.
The aforesaid confidentiality obligations assumed by MCC hereunder will not apply to any Information which is presently in or subsequently becomes part of the public domain or is otherwise generally known through no fault of MCC or is obtained from any third party which is lawfully in possession and permitted to provide such Information.
In consideration of our services as set forth above, as of the Effective Date, MCC shall be entitled to receive, and Global agrees to pay to MCC the following:
5% of the consideration from $1 and up to $3,000,000, plus 4% of the consideration in excess of $3,000,000 and up to $6,000,000, plus 3% of the consideration in excess of $6,000,000 and up to $9,000,000, plus 2% of the consideration in excess of $9,000,000 and up to $12,000,000, plus 1% of the consideration in excess of $12,000,000;
Warrant) at a price of $3.50 per share pursuant to the terms set forth in the Warrant Agreement attached hereto as Exhibit A (the Warrant Agreement). The Warrant will have a cashless exercise feature, will expire five (5) years from the date of grant and will include priority Piggy Back registration rights for MCC on any future public registration filings, subject to normal and customary exceptions as set forth in the Warrant Agreement.
In the event that the Company or one of the organizations comprising the Company contributes, pledges, guarantees or otherwise conveys any of its assets (including without limitation the assets of its subsidiaries or affiliates) to, or incurs any liabilities on behalf of, or grants the authority to operate its business(es) or affiliated business(es) to: a new entity, whether a corporation, partnership, sole proprietorship, or natural person (New Entity) for the purpose of obtaining Financing as contemplated by this Agreement, then MCC will be compensated by the Company, as more fully described in Section III, above, for whatever funds were received by the New Entity on the same basis as if the funds were invested directly in the Company or one of the organizations comprising the Company. The parties further agree that all MCCs rights and obligations under this Agreement will be equally binding upon New Entity and that the Company will not enter into or create any agreement, undertaking or legal obligation with a New Entity without requiring said New Entity to accept and satisfy MCCs rights and obligations under this Agreement as if they were their own.
If, within two (2) years from the termination of this Agreement, the Company or one of the organizations comprising the Company or its officers consummate any Financing with any party to whom the Company or its officers were introduced by MCC, or who was contacted by MCC in connection with its services for the Company hereunder, or who received information prepared by MCC in connection with the Financing (Qualified Prospect), then the Company shall pay to MCC the compensation detailed in Section III above. For this purpose, within twenty (20) days of each quarter end of this Agreement, MCC shall provide the Company with a list of Qualified Prospects MCC contacted in connection with the matters encompassed by this Agreement.
The Company agrees to reimburse MCC all amounts due and owing MCC, under the terms of this Agreement, no later than fifteen (15) days after receiving an invoice for all customary or reasonable out-of-pocket expenses including but not limited to, the cost of telephone calls, travel, facsimile transmissions, translation, interpretation, paper duplication, due diligence reports, postage and delivery services, or fees of counsel, incurred in connection with the performance by MCC of its duties as contemplated by this Agreement. All out-of-town travel, counsel or third party consultant fees, and other significant expenses (over $1,000) will be approved by the Company in advance. The Company will make arrangements directly with, and be responsible for, costs of accountants, appraisers, counsel and other experts and for the costs of printing and circulating a business plan, memorandum or other documents prepared in connection with performing appropriate due diligence of this Financing.
This Agreement shall terminate twenty-four (24) months from the signing of this Agreement unless extended pursuant to the terms of Paragraph IV, above or unless terminated by the Company for cause. Cause shall be the gross negligence, willful misconduct, violation of law or breach of this Agreement by MCC. MCC shall be paid by the Company all fees earned through the date of the act which causes the termination of this Agreement together with reimbursement of all expenses due hereunder. All such fees and reimbursement due MCC shall be paid on or before the Termination Date. Notwithstanding anything expressed or implied herein to the contrary, the terms and provisions of Sections II, IV, V, VI, VII, IX, X, XI, XII, XIII, XIV, XV, XVI and XVII shall survive the termination of this Agreement except that Sections IV, VI and XVI will not survive a termination for cause.
Since we will be acting on your behalf, it is our practice to receive indemnification. The Company agrees to indemnify and hold harmless MCC against any and all losses, claims, damages, liabilities or costs (and all actions in respect thereof and any reasonable legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise), including the costs of investigating, preparing or defending any such action or claim, in connection with litigation in which MCC is a party or otherwise required to participate, as and when incurred, directly or indirectly, caused by, relating to, based upon or arising out of (a) any Financing (as defined in or contemplated by this engagement letter agreement, as it may be amended from time to time (the Agreement)), or (b) MCCs acting for the Company, including, without limitation, any act or omission by MCC in connection with its acceptance of or of the performance of its obligations under the Agreement; provided, however, such indemnity agreement shall not apply to any such loss, claim, damage, liability or cost to the extent it is found to have resulted from the gross negligence, willful misconduct, violation of law or breach of this Agreement of MCC, as to which MCC shall indemnify the Company. The Company also agrees that MCC shall not have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement of MCC, except for any such liability for losses, claims, damages, liabilities or expenses that is found to have resulted primarily and directly from MCCs gross negligence, willful misconduct, violation of law or breach of this Agreement.
This Indemnification Agreement shall be in addition to any liability which a party may otherwise have to the other party or its affiliates, and the indemnification provided for shall extend to officers, employees, agents, legal counsel and controlling persons of a party within the meaning of the Securities Act of 1933, as amended. All references to a party in this indemnification provision shall be understood to include any of the foregoing.
If any action, proceeding, or investigation is commenced or claim is made as to which a party proposes to demand indemnification, it will notify the other party with reasonable promptness. The indemnifying party reserves the right to assume the defense of the indemnified party with counsel of its choosing, which counsel shall be reasonably
acceptable to the indemnified party. The indemnifying party will be liable for any settlement of any claim against the indemnified party. However, the indemnified party may not settle any claim without the consent of the indemnifying party.
No person found liable for fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation. Notwithstanding the foregoing, MCC shall not be obligated to contribute any amount under this Agreement that exceeds the amount of fees MCC previously received pursuant to this Agreement.
If the indemnification provided for in this Indemnification Agreement shall for any reason be unavailable to a party in respect of any loss, claim, damage, or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage, or liability, or any action in respect thereof (i) in such proportion as shall be appropriate to reflect the relative benefits received by the parties from the applicable Financing, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in such clause (i), but also the relative fault of the parties, with respect to the actions or inactions (including statements and omissions) that resulted in such loss, claim, damage, or liability, or any action in respect thereof, as well as any other relevant equitable considerations.
The parties agree that this Agreement dated August 22, 2003, embodies the entire agreement and understanding of the Parties and supersedes all previous agreements, and that no understandings or agreements, verbal or otherwise, exist between the Parties except as set forth in this Agreement. Any modifications to the Agreement must be reduced to writing, signed by both Parties, and attached to the Agreement to be effective.
Should any section or any part of any section of the Agreement be rendered void, invalid, or unenforceable by any court of law, for any reason, such a determination shall not render void, invalid, or unenforceable any other section or any part of any section in the Agreement.
Each Party, for itself, and its successors, heirs, executors, administrators, representatives, insurers, agents, and assigns, covenants and agrees that all representations made hereunder and obligations created hereunder shall apply to their successors and assigns; provided, however, that MCC shall not assign this Agreement to a third party without the prior written consent of a duly authorized representative of the Company, which consent shall not be unreasonably withheld.
Any required notices under this Agreement shall be made by overnight courier or certified mail, postage prepaid and return receipt requested as follows:
If to MCC: Rudy R. Miller Chairman, President and Chief Executive Officer Miller Capital Corporation 4909 East McDowell Road Phoenix, Arizona 85008-4293
If to Global: Rick Kozuback President and Chief Executive Officer Global Entertainment Corporation 4909 East McDowell Road, Suite 104 Phoenix, Arizona 85008-4293
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 Arizonas 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.
The headings are for informational purposes only and shall not constitute a part of this Agreement.
Upon advance written notice and opportunity to review, the Company agrees that MCC may prepare a tombstone or other similar announcements with respect to completed Financings and the Company grants MCC the right to include the Companys corporate name or logo in any announcements or other publicity including tombstones and advertising related materials.
Waiver of any one breach of the provisions of this Agreement shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement.
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.
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