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THIS
CONSULTING AGREEMENT (this "Agreement") made and entered into as of
August 28, 2007 between Montana Acquisition Corporation, a Delaware
corporation (the "Client"), and Marine Associates, a New York
general partnership (the "Consultant").
In
consideration of the mutual promises and agreements herein
contained and for other good and valuable consideration, the
receipt of which are hereby acknowledged, it is hereby agreed
between the Parties (the Client and the Consultant, when
hereinafter referred to collectively) as follows:
| 1.
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CONSULTING
SERVICES. |
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| (a)
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The Consultant
agrees to act as a business consultant to the Client and shall,
subject to the supervision of the Client, and to provide
administrative services and general consultation services to the
Client which shall include, but not be limited (i) to review and
analyze the Client's material documentation to determine the
Client's most effective internal organizational structure, and (ii)
to assist the Client to determine its best course of action, which
may include (aa) negotiating private placements of common or
preferred stock, or debt, for the expansion of its working capital,
acquisition financing, or the restructuring of existing
indebtedness, (bb) negotiating mergers and acquisitions, (cc)
implementing business strategies, and (dd) to assist the Client by
performing any other transactions deemed by the Consultant to be in
the best interests of the Client. |
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| (b)
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If the Client
requests the Consultant to participate in any other transactions or
perform any other specific services, such services shall be
described in an addendum hereto, in a form to be agreed upon by the
Parties. |
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The Consultant may, in its discretion, appoint one or more
sub-advisors or consultants to perform one or more of the foregoing
services with respect to all or a portion of the consultation for
the Client, at the Consultant's expense. Upon the request of the
Client, the Consultant shall furnish the Client with full
information concerning activities undertaken by the Consultant for
the Client.
For services to be rendered hereunder to the Client, the Client
will pay the Consultant a consulting fee as follows: $1,410, be
paid in the form of Montana's common stock, $0.001 par value per
share, calculated an issued at the rate of $1.00 per share, or
1,410 shares. The Client shall pay this fee to the Consultant, in
advance. If the Client and the Consultant agree on additional
services pursuant to paragraph 1(b), any additional fees would be
included in the addendum.
The certificate representing the Consultant's shares of Montana
stock shall be accompanied by the legend, the form of which is
contained in Exhibit 1 hereto and made a part hereof by reference
thereto.
For purposes of qualification, the Consultant acknowledges that it
is an "accredited investor," by that terms definition under the
rules and regulations of the Securities and Exchange
Commission.
It is understood that if the
Client agrees to it in advance, it will pay or reimburse the
Consultant for all expenses incurred by the Consultant in
connection with its services provided hereunder; including, but not
limited to, (a) all reasonable travel fees and expenses, including
those associated with investigating the Client or its affiliates,
or any potential investments of the Client or maximizing return on
existing investments of the Client, (b) any legal fees and expenses
in connection with the services provided by Consultant hereunder
which are not in the ordinary course of business, and (c) any
extraordinary expenses such as the fees and expenses of counsel in
connection with any litigation arising out of or in connection with
this Agreement, except as otherwise determined in accordance with
the last sentence of Section 10 hereunder. The Consultant
acknowledges that if no written understanding with the Client
regarding these expenses is in writing prior made to any such
expenses being incurred, the Client shall have no obligation to
reimburse Consultant for any such expenses.
| 4. SERVICES TO OTHER COMPANIES. |
The services of the Consultant to the
Client hereunder are not to be deemed exclusive. The Consultant is
free to render its services to others and to engage in other
activities; provided, however, that such other services and
activities do not, during the term of this Agreement, interfere in
a material manner with the Consultant's ability to meet all of its
obligations with respect to rendering services to the Client
hereunder, and would not cause the Consultant to disclose the
confidential information it obtained from or concerning the
Client.
In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Consultant, the
Consultant shall not be subject to liability to the Client or to
any director, shareholder, employee, or agent thereof for any act
or omission in the course of, or connected with, rendering its
services to the Client hereunder.
| 6.
TERM OF AGREEMENT; AMENDMENTS. |
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| (a) |
This Agreement
shall commence as of the date hereof and, subject to prior
termination as provided in section 6(b) hereof, shall continue in
force until December 31, 2007, unless terminated by either party by
written notice not later than 10 (ten) days prior to the expiration
of the term. This Agreement may be extended by the written consent
of the Parties, subject to the publication of new terms and
conditions satisfactory to the Parties. |
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| (b)
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Either party
hereto may, at any time on sixty (60) days prior written notice to
the other, terminate this Agreement, without payment of any
penalty; provided, however, that if any transaction in which
Consultant shall have participated prior to such termination closes
or is otherwise funded in whole or in part within six months after
the effective date of termination, the Client shall still be
obligated to pay to the Consultant the fee described in section 2
hereof in respect of such transaction. |
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| (c)
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This Agreement
may he modified only by the mutual consent of the Parties evidenced
in writing. |
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| 7.
CONSULTANT'S BEST EFFORTS; INDEMNITY. |
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The Consultant shall use its best
efforts in the performance of the investment advisory and
management services to be performed hereunder. All recommendations
and instructions made by the Consultant will be based upon
information received from the Client and from sources that it
believes to be reliable, but whose accuracy is not and cannot be
guaranteed. Such info
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