Acquisition Consulting Agreement



 Exhibit 10.21 
  

			
	


	 	 	 Miller Management Corporation            

		
	 	 	 Miller Capital Corporation

		
	 	 	 Miller Investments


  
 November 17, 2003 
  
 Mr. Donald R. Head 
 Chairman, President and Chief Executive Officer 
 CAPITAL TITLE GROUP, INC. 
 14648 North Scottsdale Road, Suite 125 
 Scottsdale, Arizona 85254 

 
 ACQUISITION CONSULTING AGREEMENT - THIRD RENEWAL 
  
 THIS ACQUISITION CONSULTING AGREEMENT (the “Agreement”) is entered into as of the
28th day of January, 2004 (the “Effective Date”) by and between CAPITAL TITLE GROUP, INC., a Delaware corporation (“Capital Title” or the “Company”), and MILLER CAPITAL CORPORATION, an Arizona corporation
(“MCC”). 
  
 In consideration of the mutual premises,
covenants and undertakings set forth herein, the parties hereby agree as follows: 
  
 I. RESPONSIBILITIES OF MCC 
  
 1.1 Subject to the terms and conditions hereof, Capital Title hereby retains MCC to provide exclusive acquisition consulting services to Capital Title for
transactions with a value greater than $7,000,000 and MCC agrees to provide such services to Capital Title. MCC shall assist with the identification of acquisition candidates and with negotiating and structuring acquisitions all in accordance with
Capital Title’s expansion plans as may be in effect from time to time. 
  
 1.2 Capital Title acknowledges and understands that MCC, in order to perform its services effectively under this Agreement, requires the prompt receipt of all material information with respect to Capital Title, its
operations and prospects. Accordingly, Capital Title agrees to furnish promptly to MCC copies of all publicly available reports and filings made with the Securities and Exchange Commission (the “SEC”), all communications with stockholders
and all reports received from Capital Title’s auditors 







 Acquisition Consulting Agreement Renewal 
 Between Capital Title Group, Inc. and Miller Capital Corporation 
 Effective January 28, 2004 
 Page 2 
  
 that have significance to the scope of
MCC’s services hereunder; provided, however, Capital Title shall have no obligation to provide MCC with any information that Capital Title deems confidential. Capital Title recognizes the necessity of promptly notifying MCC of all material
developments concerning Capital Title, its business and prospects and to supply MCC with sufficient information necessary for MCC to make a determination as to its compliance with its own procedures as well as any legal requirements. MCC agrees that
it shall keep confidential all information received from Capital Title until such time that MCC is authorized to release such information. 
  
 II. COMPENSATION 
  
 In the event the Company effectuates a corporate restructuring, merger, joint venture, or acquisition during the term hereof, or such a transaction occurs
on or prior to one year from the date of termination of this Agreement (irrespective of any reason for such termination), then the Company hereby agrees to pay the following consideration, which payment shall be due and payable eighty (80%) percent
in cash and twenty (20%) percent in common stock (with priority registration rights) on the date of any such closing with respect thereto: 
  
 5% of the consideration from $1 and up to $2,000,000, plus 
  
 4% of the consideration in excess of $2,000,000 and up to $10,000,000, plus 
  
 3% of the consideration in excess of $10,000,000 and up to $20,000,000, plus 
  
 2% of the consideration in excess of $20,000,000 and up to $30,000,000, plus

  
 1% of the consideration in excess of $30,000,000. 

 
 MCC further agrees that for transactions arranged directly by the Company
in the aggregate amount of $7,000,000 or less, MCC will not be entitled to a fee unless the Company requests MCC’s services, and MCC and the Company negotiate in advance a fee acceptable for each specific transaction of $7,000,000 or less for
which the Company engages MCC’s services. 
  
 III. EXPENSE REIMBURSEMENT 
  
 Capital Title
agrees to reimburse MCC for all reasonable out-of-pocket expenses including but not limited to, the cost of telephone calls, travel, facsimile transmissions, translation, interpretation, paper duplication, postage and delivery services, or fees of
counsel, incurred in connection with the performance by MCC of its duties as contemplated by this Agreement. All out-of-town travel, counsel or third party consultant fees, and other significant expenses over $1,000 will be approved by Capital Title
in advance. 
  

											
	 	 	 Miller Capital Corporation
	  	     •    4909 East McDowell Road
	  	     •    Phoenix, Arizona 85008
	  	     •    602.225.0505
	  	 








 Acquisition Consulting Agreement Renewal 
 Between Capital Title Group, Inc. and Miller Capital Corporation 
 Effective January 28, 2004 
 Page 3 
  
 IV.
TERM 
  
 The term of this Agreement shall be for two years
commencing as of the date first written above and terminating one day prior to the 2nd anniversary hereof. Thereafter, this Agreement shall be renewed for subsequent two-year terms upon mutual agreement of the parties. 
  
 V. ASSIGNMENT AND TRANSFER OF OBLIGATIONS 

 
 In the event that Capital Title transfers or otherwise conveys all or
substantially all of its assets (including without limitation the assets of its subsidiaries) or grants the authority to operate its business(es) or affiliated business(es) to a new entity, whether a corporation, partnership, or natural person
(“New Entity”) all of Capital Title’s obligations under this Agreement will be binding upon such New Entity and Capital Title will not enter into or create an agreement, undertaking or legal obligation with a New Entity without
requiring such New Entity to accept and satisfy Capital Title’s obligations under this Agreement. Notwithstanding anything to the contrary contained in this Article V, this Article V shall not be applicable and will be of no force or effect if
compliance with this Article V would result in the violation of any law or statute, the breach of any Agreement to which Capital Title or its affiliates is a party, or the inability of Capital Title to operate in accordance with its usual and
customary practices. 
  
 VI.
INDEMNIFICATION 
  
 6.1 In connection with the terms and
agreements set forth herein, Capital Title agrees to indemnify and hold harmless MCC, its officers, directors, employees, agents and legal counsel (collectively, the “MCC Parties”), against any and all losses, claims, damages, liabilities
or costs (and any reasonable legal or other expense in giving testimony or furnishing documents in response to a subpoena or otherwise), including the costs of investigation, preparing or defending any action or claim, directly or indirectly, caused
by, relating to, based upon or arising out of this Agreement. Capital Title also agrees that the MCC Parties shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to Capital Title for or in connection with the
engagement of MCC. 
  
 6.2 MCC agrees to indemnify Capital Title
and hold harmless Capital Title, its officer, directors, employees, agents and legal counsel (collectively, the “Capital Title Parties”) against any and all liabilities, expenses, costs and damages (including the cost of defense) alleged
against or incurred by any Capital Title Party in connection with this Agreement to the extent that such liability, expense, cost, or damage was incurred or is alleged to have been incurred in whole or in part, directly or indirectly, due to any
action or omission to act by MCC, which action or omission is determined to be the result of MCC’s gross negligence or willful misconduct. 
  

											
	 	 	 Miller Capital Corporation
	  	     •    4909 East McDowell Road
	  	     •    Phoenix, Arizona 85008
	  	     •    602.225.0505
	  	 








 Acquisition Consulting Agreement Renewal 
 Between Capital Title Group, Inc. and Miller Capital Corporation 
 Effective January 28, 2004 
 Page 4 
  
 6.3 If any action, proceeding, or investigation is commenced or claim is made as to which either a MCC Party or a Capital Title Party proposes to demand indemnification, the party claiming indemnification (the
“Indemnified Party”) will notify the party against whom indemnification is claimed (the “Indemnifying Party”) with reasonable promptness. The Indemnifying Party reserves the right to assume the defense of the Indemnified Party
with counsel of its choosing, which counsel shall be reasonably acceptable to the Indemnified Party. The Indemnifying Party will not be liable for any settlement of any claim against any Indemnified Party made without the Indemnifying Party’s
written consent. 
  
 VII. NOTICES

  
 All notices and other written communications required to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if delivered to the addressee in person or mailed by registered or certified mail, return receipt requested, to the following addresses: 
  

					
	 	 	 If to MCC:
	  	 Mr. Rudy R. Miller

	 	 	 	  	 Chairman, President and CEO

	 	 	 	  	 Miller Capital Corporation

	 	 	 	  	 4909 East McDowell Road

	 	 	 	  	 Phoenix, Arizona 85008-4293

			
	 	 	 If to Capital Title:
	  	 Mr. Donald R. Head

	 	 	 	  	 Chairman, President and CEO

	 	 	 	  	 Capital Title Group, Inc.

	 	 	 	  	 14648 North Scottsdale Road, Suite 125

	 	 	 	  	 Scottsdale, Arizona 85254


  
 Either party may change the address at
which notice is to be given by notifying the other party in writing. Notices shall be deemed delivered upon delivery, if personally delivered, or, if mailed, three (3) days after deposit in the Untied States mail. 
  
 VIII. APPLICABLE LAW 
  
 The validity and interpretation of this Agreement shall be governed by the
laws of the State of Arizona, without giving effect to the State of Arizona’s choice of law principles, and all actions arising under this Agreement or arising out of the operative facts represented by services performed pursuant to this
Agreement shall be resolved in the courts of the State of Arizona. 
  

											
	 	 	 Miller Capital Corporation
	  	     •    4909 East McDowell Road
	  	     •    Phoenix, Arizona 85008
	  	     •    602.225.0505
	  	 








 Acquisition Consulting Agreement Renewal 
 Between Capital Title Group, Inc. and Miller Capital Corporation 
 Effective January 28, 2004 
 Page 5 
  
 IX. MISCELLANEOUS 
  
 9.1 Assignment. MCC shall not assign this Agreement to a third party without the prior written consent of a duly authorized representative of
Capital Title, which consent shall not be unreasonably withheld. 
  
 9.2 Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject hereof and that no understandings or agreements, verbal or otherwise, exist between the
parties except as set forth in the Agreement. 
  
 9.3
Amendment. Any modifications to the Agreement must be reduced to writing by both parties, and attached to the Agreement to be effective. 
  
 9.4 Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement shall
remain in full force and effect and the same shall be interpreted as though such invalid and illegal provision were not a part hereof. The remaining provisions shall be construed to preserve the intent and purpose of this Agreement and the parties
shall negotiate in good faith to modify the provisions held to be invalid or illegal to preserve each party’s anticipated benefits thereunder. 
  
 9.5 Titles and Subtitles. The titles of articles and sections of this Agreement are for convenience of reference only and are not to be considered
in construing this Agreement. 
  
 9.6 Delays or Omissions.
No delay or omission to exercise any right, power or remedy accruing to any party shall impair any such right, power or remedy of such party, nor shall it be construed to be a waiver of any breach or default under this Agreement, or an acquiescence
therein, or in any similar breach or default thereafter occurring; nor shall any delay or omission to exercise any right, power or remedy or any waiver of any single breach or default be deemed a waiver of any other right, power or remedy or breach
or default theretofore or thereafter occurring. 
  
 SIGNATURE PAGE FOLLOWS:

  

											
	 	 	 Miller Capital Corporation
	  	     •    4909 East McDowell Road
	  	     •    Phoenix, Arizona 85008
	  	     •    602.225.0505
	  	 








 Acquisition Consulting Agreement Renewal 
 Between Capital Title Group, Inc. and Miller Capital Corporation 
 Effective January 28, 2004 
 Page 6 
  
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. 
  

			
	 CAPITAL TITLE GROUP, INC.

		
	 By:
	 	 /s/ Donald R. Head


	 	 	 Donald R. Head

	 	 	 Chairman, President and CEO

	
	 MILLER CAPITAL CORPORATION

		
	 By:
	 	 /s/ Rudy R. Miller


	 	 	 Rudy R. Miller

	 	 	 Chairman, President and CEO



  

											
	 	 	 Miller Capital Corporation
	  	     •    4909 East McDowell Road
	  	     •    Phoenix, Arizona 85008
	  	     •    602.225.0505