PREMIER MANAGEMENT CONSULTING AGREEMENT
PREMIER
MANAGEMENT CONSULTING AGREEMENT
This
exclusive agreement (the “Agreement”),
dated
as of November 13, 2007, will confirm the arrangement under which Genesis
Capital Advisors, LLC (“Genesis”)
has
been engaged by Premier Power. (“Premier”), to assist the Premier in connection
with a business opportunities involving Premier Power and their ownership of
one
or more entities including but not limited to Premier Power Renewable energy
Inc. as set forth below in connection with the day to day business, future
planning and growth strategy (Services as defined below).
Services.
Genesis
will provide Premier with consulting and other services in connection with
day
to day business, growth strategy, and consideration of merger, acquisition,
and
other opportunities. Genesis will provide these consulting Services to:
It
is
within Premiers sole discretion to choose to pursue any opportunities introduced
by Genesis or not.
1. Cooperation.
(a) Premier
shall furnish Genesis with all information and data that Genesis shall
reasonably request in connection with Genesis’ activities hereunder.
(b) Genesis
will be relying on information and data provided by Premier without having
independently verified the accuracy or completeness of the same.
2. Limitation
Upon Engagement.
(a) Genesis
shall not provide any legal, accounting, regulatory or tax advice with respect
to this engagement and Premier shall consult its own legal, accounting,
regulatory and tax advisors to the extent it deems appropriate.
(b) Genesis
is not an agent of Premier and shall not have the authority to enter into any
agreement binding upon or otherwise obligating Premier to enter into an
agreement unless authorized in writing by Premier. Furthermore, this
Agreement does not constitute a partnership or joint venture.
(c) Premier
acknowledges that they are sophisticated and experienced in transactions similar
to those contemplated herein. Premier further acknowledges that Genesis will
act
as an independent contractor hereunder, and that Genesis’ responsibility to
Premier is solely contractual in nature, and that Genesis does not owe Premier,
or any other person or entity, any fiduciary or similar duty as a result of
its
engagement hereunder or otherwise. Genesis will not have any duty to disclose
to
Premier or utilize for Premiers benefit any non-public information acquired
in
the course of providing services to any other person or entity, engaging in
any
transaction (on its own account or otherwise) or otherwise carrying on its
business.
(d) Genesis
may assign or transfer this entire agreement or the portion or portions of
this
Agreement as necessary, to an affiliate, partner or other entity, as necessary
to comply with laws and regulations governing a Transaction or the services
herein in any state or country Company may enter into a Transaction and/or
retain a FINRA Broker Dealer on behalf of Principals and their related
company.
3. Compensation.
The
Company agrees to pay Genesis as follows:
Due
Genesis for consulting services:
(a) Regarding
services related to business activities that take place prior to September
10th
2008
(Initial Term) for consulting services Genesis will receive the following flat
fee compensation: Two Hundred Ten Thousand ($210,000.00) US
Dollars.
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4.
Payments.
All
payments are to be made to Genesis pursuant to Section 4 shall be made as
follows:
(a) In
the
event an escrow or other third-party is used to facilitate or govern a
Transaction, (including but not limited to a court of law, law firm, accounting
firm, or other entity) (“Escrow”), payment shall be made through Escrow such
that Premier shall provide or cause the provision of any anticipated
compensation hereunder to Escrow, and Escrow shall directly disburse said
compensation to Genesis without any deduction for tax in
accordance with the timing of payments provided for by this
Agreement.
Premier
agrees to use an Escrow for a Transaction whenever possible, and agree to
provide Escrow any written instructions to effectuate the payments contemplated
under this Agreement. Genesis may choose to waive its right to be paid through
Escrow, in which case, Genesis shall be paid in accordance with subsection
(b)
below. Any such waiver must be in writing to be effective.
(b) In
the
event an Escrow is not used, (i) payments in the form of cash shall be made
by
wire transfer of immediately available U.S. funds, and (ii) payments in the
form
of Premier stock shall be made to the brokerage account(s) designated by
Genesis, without deduction for any tax in accordance with the timing of payments
provided for by this Agreement.
5. Expenses.
In
addition to any fees that may be paid to Genesis hereunder, whether or not
any
Transaction occurs, upon request by Genesis, Premier will reimburse Genesis,
within thirty (30) business days, for all APPROVED in writing out-of-pocket
expenses incurred by Genesis in connection with its engagement.
6. Indemnification.
Premier will indemnify and hold Genesis and any of its affiliates, directors,
officers, agents, employees or controlling persons (“Indemnified
Parties”)
harmless against any and all losses, claims, damages or liabilities, including
reasonable attorneys’ fees and expenses (any of the foregoing, a “Claim”),
arising from 1) Premier breaches of any part of this Agreement, 2) any act
by
Premier that actually causes a Claim against Genesis, or 3) any actions taken
or
services provided by Genesis under this Agreement, except for acts of gross
negligence or intentional misconduct in performing such actions or
services. The foregoing indemnification shall be binding upon and inure to
the benefit of any successors, assigns, heirs and personal representatives
of
Premier and the Indemnified Parties. This indemnification provision shall
survive any termination or expiration of this Agreement.
7. Termination.
Genesis’ engagement hereunder will commence upon the execution of this Agreement
by both parties, and will continue until September 10th;
Upon
the occurrence of either event the termination of this agreement requires no
written notice to the other. Upon any termination of this Agreement, the Company
shall promptly pay Genesis any accrued but unpaid fees hereunder, and shall
reimburse Genesis for any unreimbursed expenses that are reimbursable hereunder.
In the event of any termination of this Agreement, Genesis shall be entitled
to
the applicable fee(s) set forth in Section 3. Upon termination of this
Agreement, the rights and obligations of the parties hereunder shall terminate,
except for those set forth in Sections 8 and 9, 10 and 11 below.
8. Non-circumvention.
Premier
shall not in any manner solicit or accept any business from any contact
(including, but not limited to, any acquisition target and or Financing Entity)
provided by Genesis (including, but not limited to, any contact provided prior
to the execution of this Agreement) or engage in any transaction with any such
contact for thirty-six (36) months following the termination or expiration
of
this Agreement, without the prior written consent of Genesis.
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9. Confidentiality.
Genesis
and Premier agree during the term of this Agreement and thereafter to take
all
steps reasonably necessary to hold in trust and confidence information which
they know or have reason to know is considered confidential by Genesis or
Premier except as necessitated by law, or used in any manner contrary to the
disclosing party's best interest.
10. Governing
Law.
This
Agreement and the legal relations between the parties hereto shall be governed
by and construed in accordance with the substantive laws of the State of
California, without giving effect to the principles of conflict of laws
thereof.
11. Announcements.
Premier
agrees that Genesis may place an announcement in such newspapers, electronic
media and periodicals as it may choose, stating Genesis’ role and other material
terms of the engagement. Genesis shall be entitled to use the Company’s name and
logo in connection therewith. Premier agrees that any press release it may
issue
announcing an activity involving Genesis, at Genesis’ request, contain a
reference to Genesis’ role in the activity.
12. Notices.
All
notices, consents and other communications required by the terms of this
Agreement, including any change of address, shall be in writing and sent to
the
parties at the addresses specified below. Any such notice shall be deemed to
have been given three (3) days after mailing or when received if sent by hand,
facsimile or air courier.
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Premier
Power Renewable Energy,
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.Genesis
Capital Advisors, LLC
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13. Headings.
Headings used herein are for convenience of reference only and shall not affect
the interpretation or construction of this Agreement.
14.
Conflict:
Premier
acknowledges there is a similar agreement in place with Premier Power Renewable
Energy for similar services, and hereby wave any conflict of interest claims.
15. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter hereof and supersedes all prior or contemporaneous negotiations,
representations, agreements and understandings, both oral and written, of the
parties. This Agreement may not be amended or modified except by an agreement
in
writing, executed by the parties hereto.
16. Severability.
If one
or more provisions of this Agreement shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, such provision or the
illegal, invalid or unenforceable portion thereof shall be deemed severed from
this Agreement and all other portions of this Agreement shall be considered
valid and remain in effect.
17. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. Facsimile transmission of the Agreement shall constitute one
acceptable method to provide notice of acceptance between the
parties.
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18. Waiver.
The
failure of any party to exercise a right under this Agreement or insist on
the
performance of any of the terms, conditions, and provisions of this Agreement
shall not be construed as a waiver or relinquishment of that right or future
compliance therewith. No waiver of any term or condition of this Agreement
on
the part of either party shall be effective for any purpose whatsoever unless
such waiver is in writing and signed by such waiving party.
19. Binding.
This
Agreement shall be binding upon and inure to the benefit of each of the parties
and their respective successors and permitted assigns.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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Genesis
Capital Advisors, LLC
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By:
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By:
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President
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Managing
Member
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