CONSULTING
AGREEMENT
This
Consulting Agreement (this "Agreement") is entered into as of
November 1, 2007, by and between Marani Holdings, an Armenian
corporation (the "Company"), and Purell Partners, LLC, a Nevada
limited liability company ("Consultant").
WHEREAS,
the Company desires to acquire or merge with other businesses,
dispose of businesses or assets, enter into strategic
relationships, and/or enter into investment banking relationships,
and to secure valuable management consulting to assist the Company
in its operations, strategy and in its negotiations with vendors,
customers and strategic partners (the "Company Objectives");
WHEREAS,
the Company recognizes that the Consultant can assist the Company
in achieving and implementing the Company Objectives,
WHEREAS,
the Company believes it to be important both to the future
prosperity of the Company Objectives and to the Company's general
interest to retain Consultant, on a non-exclusive basis, and have
Consultant available to the Company for consulting services in the
manner and subject to the terms, provisions and conditions set
forth herein;
WHEREAS,
in order to accomplish the foregoing, the Company and Consultant
desire to enter into this Agreement, effective as of November 1,
2007, pursuant to which the Company will engage the Consultant to
provide the Services ( as hereinafter defined) and the Consultant
will provide the Services to the Company.
NOW
THEREFORE, in view of the foregoing and in consideration of the
premises and mutual representations, warranties, covenants and
promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
| 1. |
Retention . The Company
hereby retains the Consultant during the Consulting Period (as
defined in Section 2 below), and Consultant hereby agrees to be so
retained by the Company and to provide the Services to the
Company,, all upon to the terms, provisions and conditions set
forth in this Agreement. |
| |
|
| 2. |
Consulting Period . The
period of the engagement of the Consultant hereunder shall commence
on November 1, 2007 and terminate on October 31, 2010, unless
earlier terminated as provided for herein ( the "Consulting
Period").. |
| |
|
| 3. |
Duties of Consultant . During
the Consulting Period, the Consultant shall use its reasonable and
best efforts to perform those actions and responsibilities
necessary to assist the Company with achieving the Company
Objectives, as instructed by the Company in writing from time to
time, including (i) identifying, analyzing, structuring and/or
negotiating business sales and/or acquisitions, including without
limitation, merger agreements, stock purchase agreements, and any
other agreements relating to |
| |
such sales or acquisitions (provided
that Consultant shall not engage in any capital raising
activities), (ii) assist the Company in its corporate strategies,
(iii) assist the Company in the implementation of its business
plan, (iv) assist the Company in the negotiation, documentation and
closing of strategic alliances, partnerships, joint ventures,
consulting agreements and agreements for the sale of the Company's
products, in each case as requested by the Company (the
"Services"). The Company shall not be under any obligation to enter
into any transaction based upon any of the Services, the decision
to enter into any such transaction shall be made by the Company in
its sole and absolute discretion. The Consultant shall render such
Services diligently and to the best of its ability. Notwithstanding
anything herein to the contrary, Consultant shall not engage in any
capital raising activity, and shall not be responsible for selling,
or soliciting the sale of, any securities, or maintaining a market
for the Company's securities. The Company may engage such other
consultants, investment bankers or other advisers with respect to
the activities set forth in the immediately preceding sentence as
the Company shall deem appropriate in its sole and absolute
discretion, and Consultant shall not be entitled to any fees or
commissions arising out of the activities of such other
consultants, investment bankers or other advisors, unless
Consultant provides Services with respect to such activities,
subject to the limitations set forth in the second sentence of
Section 5(c) hereof. The Consultant shall not legally bind the
Company in any manner or to any transaction and the Consultant
shall not represent to any person or entity that the Consultant has
the authority to do so. |
| |
|
| 4. |
Other Activities of
Consultant . The Company recognizes that
Consultant shall provide services to other businesses and entities
other than the Company. The Consultant shall be free to directly or
indirectly own, manage, operate, join, purchase, organize or take
preparatory steps for the organization of, build, control, finance,
acquire, lease or invest or participate in the ownership,
management, operation, control or financing of, or be connected as
an officer, director, employee, partner, principal, manager, agent,
representative, associate, consultant, investor, advisor or
otherwise with (collectively, be "Affiliated" with), any business
or enterprise, or permit its name or any part thereof to be used in
connection with any business or enterprise, engaged in any
business. The Consultant may be Affiliated with any entity or
entities which may provide services to the Company; provided,
however, that the Company shall not be required to engage any such
entity Affiliated with Consultant for any purpose whatsoever.
Consultant shall not be deemed to be a fiduciary of the Company, or
to have any fiduciary duties whatsoever to the Company, other than
to disclose and such affiliation to the Company. The Consultant may
provide consulting services to, or be affiliated with, or
participate with, any third party who does business with, or
invests in or lends to the Company, and there shall be no fiduciary
obligation on the part of the Consultant, other than to disclose
such affiliation and/or relationship to the Company.
Notwithstanding anything herein to the contrary, during the
Consulting Period and for six (6) moths thereafter, the Consultant
shall not provide services to any entity or person that is in the
business of producing, marketing or distributing alcoholic
spirits. |
2
| 5. |
Compensation . In
consideration for Consultant entering into this Agreement and the
Services provided hereunder, the Company shall compensate
Consultant as follows: |
| |
a. |
Monthly Fees and Benefits
: |
| |
i. |
Retainer. The Company shall
pay to Consultant a retainer in the amount of $20,000 per month for
each month during the Consulting Period. |
| |
|
|
| |
ii |
Expenses. The Company shall
pay all reasonable and necessary expenses incurred during the
Consulting Period by the Consultant in connection with the
performance of services hereunder. The Consultant shall estimate
the amount of reimbursable expense and obtain written approval by
the Company prior to incurring the expenses. |
| |
b. |
Fees for Acquisition
Transactions . The Company shall pay to the Consultant a fee of
five percent (5%) of the aggregate consideration paid for any
acquisition by the Company of any business, corporation or division
(a "Target"), including, but not limited to, acquisitions by stock
purchase agreement, merger agreement, plan of reorganization, asset
purchase agreement or license agreement, if the Target was
introduced to the Company by the Consultant or the Consultant was
requested by the Company to provide services in connection with the
acquisition transaction. The Company shall pay to the Consultant a
sales fee based upon the sale of the Company to any third party or
the sale of all or substantially all of the Company's assets to
third party, such sales fee to be equal to a five percent (5%) of
the aggregate consideration received by the Company and its
shareholders in such transaction. The fee shall be paid to
Consultant when the consideration paid or received by the Company
is actually paid or received by the Company as described below.
The above fee schedule will be applied to the total purchase price,
which shall include all cash paid, installment notes and/or
securities issued, any shareholder indebtedness that is repaid, and
any other form of payment made to the seller of the assets or
securities or its shareholders in connection with or arising from
such transaction , including any contingent payments, consideration
to be paid in the form of earnouts, covenant not to compete
payments paid to the seller of any assets or securities or the
shareholders thereof, marketing agreements, royalties, employment
or consulting contracts and other similar compensation arrangements
arising from the transaction (provided, however, that reasonable
amounts paid or to be paid pursuant to any such contracts or
arrangements for services actually rendered or to be rendered shall
not be included), any consideration placed in escrow and the amount
of any indebtedness remaining or assumed on an acquired company's
financial statements at the time of closing (if , and only if the
amounts are released from escrow and paid to the seller). Subject
to the following sentence, the Consultant's fees shall be fully due
and payable at the closing of the purchase or sale transaction,
except for any part of the consideration that is |
3
| |
|
received or paid in the form of an
installment sale or is otherwise payable after the closing date,
which shall be payable upon payment being made. The obligation for
any such post-closing fees shall be the obligation of the Company
or any of its successors. Without limiting the forgoing, the
portion of the fee attributable to consideration in the form of
contingent payments, earnouts, royalties, marketing arrangements or
other similar items shall be due and payable when such
consideration is actually paid to the seller or received by the
shareholder(s) and/or the Company. If part or all of the
consideration is paid or received in the form of securities or
equity appreciation rights, then, if you agree, Consultant may
elect to receive a correspondingly proportionate amount of its fee
in said securities or equity appreciation rights valued in the
manner set forth below. Alternatively, at Consultant's election, if
the consideration consists of any security or equity appreciation
right, the value of such security or equity appreciation rights
shall be determined in the manner set forth below and such value
shall be deemed to have been paid to the Company in cash at the
closing of the purchase or sale for purposes of calculating
Consultant's fee. The value of any securities other than equity
appreciation rights shall be determined as of the day prior to the
closing and shall be based upon the public market (i.e., the last
sales price for such stock on the last trading day thereof prior to
the closing) or, if there is no public market, by the value
attributable to such securities in the transaction and if no such
value is attributable, by the good faith mutual agreement of the
Company and the Consultant.. If part or all of the consideration is
received in the form of equity appreciation rights, which shall be
payable to the Consultant only of the Company is sold, the value
thereof for purposes of calculating Consultant's fee shall be
determined in good faith by mutual agreement of Consultant and the
Company. If Consultant and the Company are not able to come to a
mutual agreement as to value, then the Company will retain any of
the following investment banking firms to determine a fair and
reasonable value, and such investment bank's valuation will be
final: Houlihan Lokey Howard & Zukin, JP Morgan, UBS or any
other firm that is reasonably acceptable to Consultant. The Company
and the Consultant shall each pay fifty percent (50%) of fees and
expenses of any such investment banking firm.
It is acknowledged and agreed that the fees described in this
Section 5 (b) shall only be payable to the Consultant if the
Consultant introduces the counterparty to the transaction to the
Company, or at the written request of the Company, the Consultant
provides services in connection with the Transaction. In addition,
the fee payable to the Consultant in the case of an acquisition by
the Company shall be reduced to two percent (2%), if the Consultant
or its Affiliates are receiving a fee from the acquired entity or
its equity holders. |
4
| |
c. |
Third Party Commissions . The
Consultant and/or its Affiliates shall be entitled to share in any
fees or commissions payable by third parties on any transaction
described in Section 5(c), including, but not limited to, any fees
payable to Consultant by a third party lender, financing partner,
or other party, or a seller of a corporation or business,
including, without limitation, investment banking fees or
commissions, business brokerage fees or commissions, finders fees,
or any other fee payable by a third party to Consultant for any
reason including the identification of the Company as a potential
purchaser or seller of such corporation or business (a "Transaction
Commission"). The Company hereby waives any conflict of interest
that may arise due to any transaction wherein Consultant receives
such a Transaction Commission, including, but not limited to, any
conflict of interest which may arise as a result of the dual
representation by Consultant of the seller or purchaser of a
corporation or business on the one hand, and the Company on the
other. The Consultant shall disclose any such conflict of interest
to the Company at the time it first arises. In no event shall the
Company or any of its shareholders have any responsibility or
liability for the payment of any Transaction
Commission. |
| |
|
|
| |
d. |
Fees for Financing
Transactions . The Company will pay to Consultant a separate
fee of five percent (5%) of the gross consideration received by the
Company in connection with any issuance of its equity or debt
securities in any private placement or five percent (5%) in
connection with the issuance of any of its equity or debt
securities in a public offering of its securities for cash during
the Consulting Period, with respect to any such transaction in
which the Consultant introduces to the Company the purchasers of
such securities in a private placement or the underwriter in
connection with any such public offering . This fee shall be in
addition to any fee charged to the Company by any other financial
advisor, consultant or any investment banking or securities
firm.
It is understood that with respect to any financing or acquisition
transaction, Consultant will act or is acting as a finder only, is
not a licensed securities or real estate broker or dealer, and
shall have no authority to enter into any commitments on the
Company's behalf, or to negotiate the terms of any financing or
acquisition, or to hold any funds or securities in connection with
any financing or acquisition, or to perform any act which would
require the Consultant to become licensed as a securities or real
estate broker or dealer. |
| |
|
|
| |
e. |
Revenue Share . The
Consultant may make introductions of potential customers to the
Company for the purposes of generating sales. This section of this
Agreement will not have any geographic limitation and it is
understood that these revenues may be generated worldwide. These
customers may include direct purchasers of the Company's products,
distributors, hotel chains, and others. The Company shall pay to
the Consultant or its assigns a fee equal to eight percent (8%) of
the net revenue received by the Company from any transactions with
such customers to the extent the Company makes sales to such
customers who were introduced to the Company by the |
5
| |
|
Consultant during the Consulting Period. For
purposes hereof, "net revenue" shall mean gross revenue, less any
applicable sales tax, VAT, withholding tax or any other similar
tax, levy or charge that is paid by the Company in the jurisdiction
of the customer, prior to the repatriation of the consideration to
the Company or deducted from the payment to the Company by the
customer in order to comply with applicable foreign law or
regulation. Any fees payable pursuant to this Section shall be paid
in cash within thirty (30) days of the Company's receipt of payment
from the customer or at the election of the Consultant, the cash
fees otherwise payable to the Consultant shall be paid by the
issuance of warrant to purchase shares of the Company's common
stock (the" Warrants"). The Warrants shall be exercisable on a
cashless basis into the number of shares at .25 cents per share at
the end of the applicable quarter. The Warrants shall have a term
of seven (7) years from the date of the issuance of each Warrant.
The Consultant cannot exercise any warrants above 30,000,000 shares
pursuant to this provision. All fees thereafter are payable in
cash. The Consultant shall be responsible for the payment of all
taxes due by the Consultant by virtue of the issuance of the
Warrants."
It is understood that this section shall continue in Perpetuity and
survive any termination clause or terms found in this agreement
except upon the sale (including, without limitation by merger,
recapitalization, consolidation, or other similar transactions) of
the company. In the event of a sale of company, the consultant
shall have the right to negotiate an extension of this agreement
with the purchaser.
|
| 6. |
Termination . Subject to the
cure provisions contained herein, the Company may terminate the
Consulting Period upon written notice for Cause (as hereinafter
defined) at any time [or at any time after one year from the date
hereof on thirty (30) days prior written notice to the Consultant
if during such one year period the Company has not engaged in any
transaction contemplated hereby as a result of the Services (a
"Non-Transaction Termination")]. For purposes hereof, "Cause" shall
mean that during the Consulting Period, (i) the Consultant engaged
in gross and willful misconduct that is materially injurious to the
Company, (ii) the Consultant's breach of any material provision or
covenant contained in this Agreement which breach is not cured for
a period of thirty (30) days after written notice of such breach
from the Company and (iii) the conviction or plead of no contest by
the Consultant to any felony and, after written notice of such
conduct. Any termination pursu |
|
