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EXHIBIT 10.77
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 1st day of
May, 1998, between American Artists Film Corporation, a Missouri corporation
(the "Company"), and National Securities Corporation (the "Consultant").
In consideration of and for the mutual promises and convenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Purpose. The Company hereby retains the Consultant on a
non-exclusive basis during the term specified to render consulting advice to the
Company as the Company reasonably request relating to financial and similar
matters, upon the terms and conditions as set forth herein.
2. Term and Compensation. This Agreement shall be effective for a
period of three months commencing on the date first written above (the
"Engagement Period"); provided, however, that this Agreement may be terminated
by either party upon 10 days prior written notice. The Company shall pay the
Consultant a non-refundable fee upon the execution of this Agreement consisting
of 25,000 shares of restricted common stock of the Company (the "Restricted
Stock").
3. Duties of Consultant. During the term of this Agreement, the
Consultant will provide the Company with such regular and customary
non-exclusive consulting advice as is reasonably requested by the Company,
provided that the Consultant shall not be required to undertake duties not
reasonable within the scope of the consulting advisory services contemplated by
this Agreement. In performance of these duties, the Consultant shall provide the
Company with the benefits of its best judgment and efforts. It is understood and
acknowledged by the parties that the value of the Consultant's advice is not
measurable in any quantitative manner, and that the Consultant shall not be
obligated to spend any specific amount of time doing so. The Consultant's duties
may at the direction of the Company include, but not necessarily be limited to
on a non-exclusive basis:
A. Providing sponsorship and exposure in connection with the
dissemination of corporate information regarding the Company to the investment
community at large.
B. Assisting in the Company's financial public relations, including
discussions between the Company and the financial community.
C. Advice regarding the financial structure of the Company and its
divisions or subsidiaries or any programs and projects, as such issues relate to
the public market for the Company's equity securities.
D. Rendering advice with respect to any acquisition program of the
Company, as such program relates to the public market for the Company's equity
securities.
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E. Rendering advice regarding the public market for the Company's
securities and the timing and structure of any future public offering of the
Company's equity securities.
It is expressly understood that no actual or express authority on
behalf of the Company is granted by the Company hereunder to Consultant.
4. Relationships with others. The Company acknowledges that the
Consultant or its affiliates is in the business of providing financial service
and consulting advice (of all types contemplated by this Agreement) to others.
Nothing herein contained shall be construed to limit or restrict the Consultant
in conducting such business with respect to others, or in rendering such advise
to others. In connection with the rendering of services hereunder, Consultant
has been or will be furnished with confidential information concerning the
Company including, but not limited to, financial statements and information,
cost and expense data, production data, trade secrets, marketing and customer
data, and such other information not generally obtained from public or published
information or trade sources. Such information shall be deemed "Confidential
Material" and, except as specifically provided herein, shall not be disclosed by
Consultant or its employees or agents without prior written consent of the
Company. In the event Consultant is required by applicable law or legal process
to disclose any of the Confidential Material, it is agreed that Consultant will
deliver to the Company immediate notice of such requirement prior to disclosure
of same to permit the Company to seek an appropriate protective order and/or
waive compliance of this provision. If, in the absence of a protective order or
receipt of written waiver, Consultant is nonetheless, in the reasonable written
opinion of Consultant's counsel, compelled to disclose any Confidential
Material, Consultant may do so without liability hereunder provided that notice
of such prospective disclosure is delivered to the Company at least five (5)
days prior to actual disclosure, Following the termination of this Agreement,
Consultant shall deliver to the Company all Confidential Material.
5. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
this Agreement, the Consultant shall not be liable to the Company or to any
officer, director, employee, stockholder or creditor of the Company, for any act
or omission in the course of or in connection with the rendering or providing of
advice hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of this Agreement
is alleged and proven, the Company agrees to defend, indemnify, and hold the
Consultant harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorney's fees paid in the defense of the
Consultant) which may in any way result from services rendered by the Consultant
pursuant to or in any connection with this Agreement.
6. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable and
actual out-of-pocket expenses incurred in connection with services provided to
the Company, subject in each case to prior written approval of the Company.
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7. Other Assistance by Consultant
If the Consultant materially assists the Company with respect to (i)
the sale or distribution of securities and/or (ii) acquisition of or merger with
another business, then the Company agrees to compensate the Consultant in a
manner which is reasonably consistent with the industry standards for the
particular type and size of transaction and based upon Consultant's level of
involvement. If the parties are unable to agree upon a compensation arrangement
for such services within 30 days of the identification of such a transaction,
then the parties hereto agree to submit such dispute to a mutually acceptable
mediation service for resolution.
8. Limitation Upon the Use of Advice and Services
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be given
hereunder, and the Company shall not transmit such advice to, or courage or
facilitate the use or reliance upon such advice by other without the prior
consent of the Consultant.
(b) It is clearly understood that the Consultant, for services rendered
under this Agreement, makes no commitment whatsoever as to recommend or advise
its clients to purchase the securities of the Company. Research reports or
corporate finance reports that may be prepared by the Consultant will, when and
if prepared, be done solely on the merits or judgment of analysts of the
Consultant or any senior finance personnel of the Consultant.
(c) Use of the Consultant's name in annual reports or any other report
of the Company or releases by the Company must have the prior approval of the
Consultant unless the Company is required by law to include Consultant's name in
such annual reports, other report or release of the Company, in which even
Consultant will be furnished with copies of such annual reports or other reports
or releases using Consultant's name in advance of publication by the Company.
9. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
10. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid, or
faxed and confirmed if to the Company, addressed to it at American Artists Film
Corporation, Attention: Xxxxxx X. Xxxxx, 0000 Xxxxxx Xxxxxx XX, Xxxxxxx, XX
00000 or if to the Consultant, addressed to it at National Securities
Corporation, 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. Such
notice or other communication shall be deemed to be given on the date of
receipt.
(b) If the Consultant shall cease to do business, the provisions hereof
relating to duties of the Consultant and compensation by the Company as it
applies to the Consultant shall thereupon cease to be in effect, except for the
(1) Restricted Stock paid by the Company to Consultant hereunder as of the date
hereof, and (2) Any compensation due Consultant in accordance with paragraph 7
above.
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(c) This Agreement embodies the entire agreement and understanding
between the Company and the Consultant and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and understandings
related to the central subject matter hereof.
(d) This Agreement has been duly authorized, executed and delivered by
and on behalf of the Company and the Consultant.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Washington, without giving effect to conflicts of
laws.
(f) There is no relationship or partnership, agency, employment,
franchise or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law or merger) and shall be binding upon
and inure to the benefit of the parties and their respective successors, assigns
and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
AMERICAN ARTISTS FILM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title CEO
NATIONAL SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title Chairman
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