Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this
22nd day of December 2008, by and between Destination Television,
Inc., having an office at 530 N. Federal Highway, Ft. Lauderdale,
FL 33301, hereinafter referred to as "the Client" and Westport
Strategic Partners, Inc., having an office at 110 E. Broward Blvd.,
Suite 1700, Ft. Lauderdale, Florida 33301, hereinafter referred to
as "the Consultant."
WITNESSETH :
WHEREAS , the Client wishes to retain the services of the
Consultant for the period provided in this Agreement, and the
Consultant is willing to provide its services to the Client for the
period under the terms and conditions hereinafter provided.
NOW, THEREFORE , in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment
Client hereby appoints and engages Consultant as its advisor on
a non-exclusive third party and non-agency basis to provide the
services described in paragraph 2 herein, pursuant to the terms and
conditions of this Agreement. Consultant accepts such
engagement and agrees to perform the services upon the terms and
conditions of this Agreement.
2. Authority and Description of Services
During the term of this Agreement, Consultant shall furnish some
or all of the various services from time to time as requested by
the Client and agreed upon by the parties as described below:
- Provide an independent research report and summary PowerPoint
presentation, written by a qualified Chartered Financial Analyst
(CFA), which is distributed to a combination of broker-dealers,
institutions, or micro and small-cap funds. Provide a listing
of interested recipients of the research report to the Client and
assist the Client in coordinating appointments with any interested
recipient.
- Provide the necessary updates on the report and PowerPoint over
the term of the Agreement as seen fit by the Client and the
appointed CFA.
- Assist Client’s internal PR department or outside PR
firms with making the report available for public access. Any
coordination of efforts will be approved by the Client before any
communication between Consultant and any outside firm.
- Provide comprehensive and strategic M&A advisory services
that includes:
· Acquisition Due Diligence
· Business Valuations and Evaluations
· Analysis of potential candidates for a
merger or acquisition
· Transaction Structuring
· Merger Integration
· Post-Merger Integration
Consultant shall not be required to perform any investment
banking related activities on behalf of Client as a condition of
this Agreement. For the purposes of this Agreement
investment-banking activities shall be defined as being any of the
following:
i. The location, negotiation and/or securing
of public or private debt for Client.
ii. The location, negotiation and/or securing of any
public or private equity for Client.
iii. The production of any documentation that is to
be utilized for the sole purpose and activity as relating to
subheadings (1) and (2) above.
iv. Any other activities as may normally be associated
with the practice of investment banking.
3. Term of Agreement
This Agreement shall become effective upon execution hereof and
shall continue thereafter and remain in effect for a period of one
(1) year. Thereafter, this Agreement shall automatically renew
for successive one-month periods unless either party gives at least
10-business days written notice prior to the expiration of the then
current period that it does not wish for this Agreement to extend
for an additional one-month period . It is expressly
acknowledged and agreed by and between the parties hereto that
Consultant shall not be obligated to provide any services and/or
perform any work related to this Agreement until such time any
agreed consideration, has been received by Consultant as outlined
on Addendum "A". Time is of the essence with respect to payment by
Client to Consultant.
4. Where Services Shall be Performed
Consultant's services shall be performed at the main office
location of Consultant or other such designated location(s) as
Consultant and Client agree are the most advantageous for the work
to be performed.
5. Limitations on Services
The parties hereto recognize that certain responsibilities and
obligations are imposed by Federal and state securities laws and by
the applicable rules and regulations of stock exchanges, the
Financial Industry Regulatory Authority, in-house "due diligence"
or "compliance" departments of brokerage houses, etc.
Accordingly, Consultant agrees as follows:
a. Consultant shall NOT release any financial or
other information or data about Client without the consent and
approval of Client.
b. Consultant shall NOT conduct any meetings with
financial analysts without informing Client in advance of any
proposed meeting; the format or agenda of such meeting and Client
may elect to have a representative of Client attend such
meeting.
c. Consultant shall NOT release any information or
data about Client to any selected or limited person(s), entity, or
group if Consultant is aware that such information or data has not
been generally released or promulgated and Client requests in
writing that said information or data is not to be so released or
promulgated.
6. Duties of Client
a. Client shall supply Consultant, on a regular and timely
basis with all approved data and information about Client, its
management, its products, and its operations and Client shall be
responsible for advising Consultant of any facts which would affect
the accuracy of any prior data and information previously supplied
to Consultant so that Consultant may take corrective action.
b. Client shall promptly supply Consultant with full and
complete copies of all filings with all Federal and state
securities agencies; with full and complete copies of all
shareholder reports and communications whether or not prepared with
Consultant's assistance; with all data and information supplied to
any analyst, broker-dealer, market maker, or other member of the
financial community; and with all product/service brochures, sales
materials, etc. Client shall supply to Consultant, within
fifteen (15) days of execution of this Agreement, a complete list
of all stockbrokers and market makers active in the stock of
Client.
c. Consultant reports are not intended to be used in the
sale or offering of securities. Accordingly, Client, by the
execution hereof agrees to each of the points listed below and to
indemnify and hold Consultant harmless for any breach of these
representations and covenants.
i. Client will keep Consultant apprised of the
progress of any offering and notify Consultant in writing a minimum
of thirty (30) days prior to making any private or public offering
of securities, including but not limited to S-8 filing or
Regulation S unless prohibited by Federal Securities laws.
ii. Client will keep Consultant apprised of any current or
anticipated "Quiet Periods" subject to U.S. Federal securities
laws.
iii. Client will not use Consultant’s research
reports regarding the Client in connection with any offering of
securities without the prior written consent of Consultant.
d. In that Consultant shareholders, officers,
employees, and/or members of their families may hold a position in
and engage in transactions with respect to Client securities, and
in light of the fact that Consultant imposes restrictions on such
transactions to guard against trading on the basis of material
nonpublic information, Client shall contemporaneously notify
Consultant if any information or data being supplied to Consultant
has not been generally released or promulgated.
7. Representation and Undertakings
a. Client shall be deemed to make a continuing representation of
the accuracy of any and all material facts; material, information
and data which it supplies to Consultant and Client acknowledges
its awareness that Consultant will rely on such continuing
representation in disseminating such information and otherwise
performing its functions hereunder.
b. Consultant, in the absence of notice in writing from
Client, will rely on the continuing accuracy of material,
information and data supplied by Client.
c. Client hereby authorizes Consultant to issue, in
Consultant's sole discretion, after notice to and approval by
Client, corrective, amendatory, supplemental, or explanatory press
releases, shareholder communications and reports or data supplied
to analysts, broker-dealers, market makers, or other members of the
financial community.
d. Client shall cooperate fully and timely with
Consultant to enable Consultant to perform its duties and
obligations under this Agreement.
e. The execution and performance of this Agreement
by Client has been duly authorized by the Board of Directors of
Destination Television, Inc. in accordance with applicable law,
and, to the extent required, by the requisite number of
shareholders of Client.
f. The performance by Client of this Agreement
will not violate any applicable court decree or order, law or
regulation, nor will it violate any provision of the organizational
documents and/or bylaws of Client or any contractual obligation by
which Client may be bound.
g. Consultant activities pursuant to this Agreement
or as contemplated by this Agreement do not constitute and shall
not constitute acting as a securities broker or dealer under
Federal or state securities laws; any contract between Client and a
potential investor in Client shall be such that Consultant would be
acting merely as an advisor with respect to such prospective
investor obligations under this Agreement.
h. Client shall promptly deliver to Consultant a
complete due diligence package to include latest 10K, latest 10Q,
if any, last six (6) months of press releases and all other
relevant materials, including but not limited to corporate reports,
brochures, etc.
i. Client shall act diligently and promptly in
reviewing materials submitted to it by Consultant to enhance timely
distribution of the materials and shall inform Consultant of any
inaccuracies contained therein within a reasonable time prior to
the projected or known publication date.
j. Client shall be aware that it may take up to
60 days from the time the Consultant receives the complete list of
requested due diligence materials before the report will be
available for initial review.
k. Client acknowledges that the report provided by
the analyst is not a buy/sell recommendation or price target
recommendation.
l. Client acknowledges that the analyst has the right
to distribute the report to their respective organizations and
associations.
m. Client acknowledges that the Consultant may not be held
responsible by the company or its shareholders for any misuse or
non-approved distribution of the Consultant’s research
report by any third party, or in conjunction with any promotional
efforts as deemed by the FINRA, Securities and Exchange Commission,
or any other regulatory body.
8. Representation and Indemnification of
Consultant
a. The execution and performance of this Agreement by Consultant
has been duly authorized by the Board of Directors of Consultant in
accordance with applicable law, and, to the extent required, by the
requisite number of shareholders of Consultant.
b. The performance by Client of this Agreement will not violate
any applicable court decree or order, law or regulation, nor will
it violate any provision of the organizational documents and/or
bylaws of Client or any contractual obligation by which Client may
be bound.
c. Consultant's activities pursuant to this Agreement or as
contemplated by this Consulting Agreement do not constitute and
shall not constitute acting as a securities broker or dealer under
Federal or state securities laws.
d. Consultant shall be diligent in the performance of its duties
under this Agreement and further represents and warrants that it
shall always perform such duties in a timely manner.
9. Confidentiality
The term "Confidential Information" means any and all
information concerning any aspect of the Client not generally known
to persons other than those associated with the Client including,
but not limited to data, concepts, processes and techniques, trade
secrets, business strategies and financial information. The
Client may disclose, in writing or orally, to the Consultant
certain Confidential Information.
The Consultant acknowledges and agrees that the Confidential
Information disclosed to the Consultant in the strictest confidence
any Confidential Information disclosed to the Consultant in any
form whatsoever is and shall be considered confidential and
proprietary information of the Client.
Except as authorized by the Client, the Consultant will not:
a. duplicate, transfer or disclose nor allow any
other person to duplicate, transfer or disclose any of the Client's
Confidential Information;
b. use the Client's Confidential Information without
the prior written consent of the Client; or
c. incorporate, in whole or in part, within
any domestic or foreign patent application any proprietary or
Confidential Information disclosed by the Client.
The Consultant will safeguard all Confidential Information at
all times so that it is not exposed to or used by unauthorized
persons, and will exercise at least the same degree of care used to
protect the Consultant's own Confidential Information.
Any and all notes, diagrams, reports, notebook pages, memoranda,
and like materials received from the Client and any copies or
excerpts thereof containing proprietary or Confidential Information
will remain the property of the Client and will, upon the request
of the Client, be promptly returned to the Client.
The restrictive obligations set forth above shall not apply to
the disclosure or use of any information which:
a. is or later becomes publicly known under
circumstances involving no breach of this Agreement by the
Consultant;
b. is already known to the Consultant at the time of
receipt of the Confidential Information;
c. is lawfully made available to the Consultant by a
third party; or
d. is independently developed by an employee of the
Consultant who has not been privy to the Confidential Information
provided by the Client.
No licenses are granted by this Agreement. The disclosure
of Confidential Information under this Agreement shall not result
in any obligation for either party to grant any rights in its
patent rights or Confidential Information, and no other obligations
of any kind are assumed by or implied against either party, except
for th
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