This Consulting
Agreement (this “ Agreement ”) is entered
into as of September 25, 2008, by and between EZPAWN Nevada,
Inc. (“ Client ”), and Craig McCall
(“ McCall ”).
WHEREAS ,
Client is in the pawn, consumer lending, and retail sales of used
merchandise business, and Client, McCall and certain business
entities owned by McCall have entered into an agreement under which
the Client will purchase eleven pawnshops owned by Pawn Plus 1,
LLC, Pawn Plus 2, LLC, Pawn Plus 3, LLC, Pawn Plus 4, LLC, Pawn
Plus 5, LLC, Pawn Plus 6, LLC, Pawn Plus 7, LLC, Pawn Plus 8, LLC,
The Pawn Place, Inc., and ASAP Pawn, LLC which are engaged in same
or similar business as Client; and
WHEREAS ,
Client desires to engage McCall for the purposes set forth in this
Agreement; and
WHEREAS ,
McCall desires to perform such services for Client under the terms
and conditions set forth in this Agreement.
NOW,
THEREFORE , in consideration of the foregoing premises, and the
mutual covenants, representations, warranties, and agreements
herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
McCall and Client, intending to be legally bound, hereby agree as
follows:
1.
Services . Client hereby engages McCall to provide
advisory services related to acquisitions, real estate,
construction, and government affairs for Client’s businesses
and operations in the State of Nevada, as reasonably modified by
Client from time to time. The advisory services (the “
Services ”) specifically include but are not limited
to: providing guidance and counsel with respect to any pawnshops,
pawn licenses, and other financial services businesses which Client
may wish to acquire; coordinating relocations of stores and
development of potential sites including identification,
construction, licensing, and zoning; and coordinating government
and regulatory affairs activities at the local, county, and state
levels. The parties agree that McCall shall not be required to
devote his full time and resources to the performance of the
Services, but only such time as is commercially necessary to
perform the Services, estimated by the parties to average
approximately sixteen (16) hours per month.
2.
Compensation . McCall hereby accepts the engagement
described in paragraph 1 above. As compensation for the Services,
Client agrees to pay McCall an annual retainer fee of Two Hundred
Thousand Dollars ($200,000.00), payable in quarterly installments
of $50,000.00 each (the “ Retainer ”). In
addition, the parties may mutually agree to certain success
bonuses, paid to McCall in addition to the Retainer upon the
achievement of certain goals specified by the parties.
3.
Term . This Agreement is expressly contingent upon
and subject to the closing of the transaction contemplated by the
purchase agreement referenced above and effective as of the date of
such closing (“Effective Date”). The Initial Term of
McCall’s engagement shall extend for
a period of
five years from the Effective Date of this Agreement. The parties,
upon mutual written agreement, may extend the term beyond the
Initial Term.
4.
Termination . This Agreement may be terminated prior
to the last day of the Initial Term, or during any extension, as
follows:
(a)
Termination by Mutual Consent . This Agreement
may be terminated at any time by the written mutual consent of the
Client and McCall.
(b)
Termination by the Client for Cause . This Agreement
may be terminated by the Client at any time for Cause after
delivery to McCall of a written notice specifying the conduct
giving rise to the termination. McCall shall have 30 days
after receipt of such written notice to cure. If McCall fails or is
unable to cure within the 30 days, this Agreement shall
immediately terminate. As used in this subparagraph 4(b) of the
Agreement, the term “ Cause ” means any
material breach of this Agreement including, but not limited to
failure to provide the Services, or breach of any provision in
paragraph 6, fraud, theft or gross malfeasance on the part of the
McCall, including, without limitation, conduct of a felonious or
criminal nature, conduct involving moral turpitude, embezzlement or
misappropriation of assets. In the event of termination by Client
for Cause, McCall will be paid only the portion of the Retainer
that has accrued through the effective date of the
termination.
(c)
Termination by McCall . This Agreement may be
terminated by McCall at any time for Cause after delivery to Client
of a written notice specifying the conduct giving rise to the
termination. Client shall have 30 days after receipt of such
written notice to cure. If Client fails or is unable to cure the
breach within the 30 days, this Agreement shall immediately
terminate. As used in this subparagraph 4(c) of the Agreement, the
term “ Cause ” means any material breach
of this Agreement by Client including, but not limited to the
failure to pay the Retainer. In the event of termination by McCall
for Cause, McCall will be paid the remaining portion of the
Retainer as specified in paragraph 2 of this Agreement for the
remainder of the Initial Term or any extension thereof.
(d)
Termination upon Death or Disability of McCall . This
Agreement will be terminated immediately upon the death or
permanent disability of McCall, as determined in good faith by the
Client at such time as McCall becomes physically or mentally
incapable of properly performing his duties under this Agreement
and such incapacity will exist or can reasonably be expected to
exist for a period of ninety days or more.
5.
Expenses . Client shall reimburse McCall for all
reasonable out-of-pocket expenses incurred by McCall in connection
with the performance of services under this Agreement including,
but not limited to, expenses such as travel, meals, printing,
copying, delivery and mailing. McCall shall provide Client a
statement of expenses on a monthly basis, and Client shall
reimburse McCall for such expenses within 15 days of
Client’s receipt of the statement of expenses.
6.
Confidentiality, Non-Disclosure, and Other
Covenants.
(a)
Detrimental Statements . McCall will not, directly or
indirectly, in any individual or representative capacity
whatsoever, make any statement, oral or written, or perform any act
or omission which is or could be detrimental in any material
respect to the goodwill of the Client.
2
(b)
Covenant of Confidentiality . McCall recognizes and
acknowledges that he will be provided access to confidential
information and trade secrets of Client, and other entities doing
business with Client relating to technical information, information
of a business nature, including but not limited to past, present or
future business policies, budgets, projections, business plans,
business and governmental relations strategies, costs, profits,
market shares, sales, customer and employee lists, organizational
structure, operating performance, and other proprietary research,
development, marketing, financial, and business-related information
or activities of Client or may discover, conceive, perfect, or
develop, solely or jointly with others, other confidential
marketing, customer, financial, and business information or
strategies of Client (hereinafter “ Confidential
Information ”). Such Confidential Information
constitutes valuable, special, and unique property of Client,
and/or other entities doing business with Client. In consideration
of such access to Confidential Information, McCall will not, during
or after the term of this Agreement, make any use of, or disclose
any of such Confidential Information to any person or firm,
corporation,
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