EXHIBIT 10.15
BUSINESS ADVISORY AGREEMENT
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This Agreement is made and entered into as of this fourth day of November,
2003 between Power2Ship, Inc., a Nevada corporation with its principal offices
at 000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, XX 00000 (the "Company") and Newbridge
Securities Corporation, a Virginia corporation with its principal offices at
0000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xx. Xxxxxxxxxx, XX 00000 (the
"Advisor").
WHEREAS, the Company is seeking certain services and advice regarding the
Company's business and financing activities; and
WHEREAS, the Advisor is willing to furnish certain business and financial
advice and services to the Company on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby engages the Advisor on a non-exclusive
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basis for the term specified in this agreement to render financial and business
advice to the Company as a financial advisor upon the terms and conditions set
forth herein.
2. Representations of the Advisor. The Advisor represents and warrants
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to the Company that (i) it is a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and that it is engaged in the
securities brokerage business; (ii) in addition to its securities brokerage
business, the Advisor provides consulting advisory services; and (iii) it is
free to enter into this Agreement and the services to be provided pursuant to
this Agreement are not in conflict with any other contractual or other
obligation to which the Advisor is bound. The Company acknowledges that the
Advisor is in the securities business and may provide financial and business
consulting services and advice of the type contemplated by this Agreement to
others, and that nothing contained herein shall be construed to limit or
restrict the Advisor in providing such services or advice to others subject to
compliance with the Confidentiality Agreement dated October 2, 2003 between the
Company and the Advisor.
3. Duties of the Advisor. During the term of this Agreement, the
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Advisor will provide the Company with consulting advice as specified below at
the request of the Company, provided that the Advisor shall not be required to
undertake duties not reasonably within the scope of the consulting advisory
service in which the Advisor is engaged generally. In the performance of these
duties, the Advisor shall provide the Company with the benefits of its best
judgment and efforts, and the Advisor cannot and does not guarantee or promise
that its efforts will have any impact on the business of the Company or that any
subsequent improvement will result from the efforts of the Advisor. It is
understood and acknowledged by the parties that the value of the Advisor's
advice is not measurable in any quantitative manner, and that the amount of time
spent rendering such consulting advice shall be determined according to the
Advisor's discretion. The Advisor's duties may include, but will not
necessarily be limited to, rendering the following services to the Company:
(a) Study and review the business, operations and historical financial
performance of the Company (based upon information provided to the Advisor by
management) so as to enable the Advisor to provide advice to the Company;
(b) Assist the Company in attempting to formulate the optimum strategy
to meet the Company's working capital and capital resource needs during the term
of this Agreement;
(c) Assist the Company in seeking to identify and evaluate potential
merger and acquisition candidates and, in appropriate instances, negotiating
with such candidates on the Company's behalf;
(d) Assist in the introduction of the Company to institutional or other
capital financing sources;
(e) Assist in the formulation of the terms and structure of any
reasonable proposed equity or debt financing or business transaction involving
the Company;
(f) Review the Company's executive compensation and employee benefit
plans and make recommendations to the Company as t how such plans may be
improved or enhanced;
(g) Assist in any presentation to the Board of Directors of the
Company, as requested, in connection with a proposed transaction; and
(h) Advise the Company as to the expected reaction of the financial
community to any transaction and assist in determining optimum means of
communicating the pertinent aspects, such as strategic considerations, benefits
to the Company and financial impact, to the financial community.
4. Term. Subject to the termination provisions set forth in paragraph
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15 hereof, the term of this Agreement shall be for one (1) year commencing from
the date of this Agreement ("Commencement Date"); provided, however, that this
Agreement may be renewed or extended upon such terms and conditions as may be
mutually agreed upon by the parties hereto. This Agreement shall terminate,
however, in the event that the Advisor is no longer a member in good standing of
the NASD.
5. Advisory Fee. As compensation for the services to be rendered by
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Advisor hereunder, Company will pay to Advisor an advisory fee for as long as
the Advisory Agreement is in effect, as follows: (a) a cash fee of $60,000,
payable (i) a $5,000 non-refundable retainer due upon the Commencement Date; and
(ii) eleven (11) consecutive monthly payments of $5.000, the first such payment
to be due no later than thirty (30) days from the Commencement Date and
thereafter, on the same date for each month in which such a payment is due; (b)
the Company will sell to the Advisor up to 500,000 shares of the Company's
common stock (the "Shares") at a price of $.01 per Share, which right shall be
exercisable by the Advisor with respect to 250,000 Shares on the 91st day
following the Commencement Date and 250,000 Shares on the 120th day following
the Commencement Date; and (c) the Company will issue to Advisor a warrant (the
"Warrant"), substantially in the form attached hereto as Exhibit A (the "Warrant
Agreement"), to acquire up to 500,000 shares of common stock in four (4) equal
tranches of 125,000 shares (the "Warrant Shares") with exercise prices of: (i)
10% above the closing market price for the Common Shares on the Commencement
Date (the "Beginning Strike Price"); (ii) $0.25 above the Beginning Strike
Price; (iii) $0.50 above the Beginning Strike Price and (iv) $0.75 above the
Beginning Strike Price, respectively. Notwithstanding the foregoing provision of
section 5.(c), if the Agreement is terminated for any reason (i) prior to the
expiration of 90 days from the date of this Agreement, then the Warrant shall
be cancelled, or (ii) during the period from the 91st through the 120th day from
the date of this Agreement, then the Warrant shall be cancelled to the extent of
one-half of each tranche of Warrant Shares.
All of the common stock to be sold by the Company to Advisor, as well as the
Warrant Shares, will carry piggyback registration rights, as more fully
described in the registration rights agreement (the "Registration Rights
Agreement") attached to the Warrant as Exhibit 3.
6. Financing Fee. In the event the Advisor effects, underwrites or
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introduces a financing by offering or selling any of the securities of the
Company, in a private or public debt and/or equity transaction, pursuant to
which the Company obtains financing or other consideration, the Advisor shall
receive a Financing Fee in addition to the Advisory Fee and any other fee to be
received pursuant to this Agreement, which shall be mutually determined between
the Company and the Advisor at the time of any such Financing.
7. Transaction Finder's Fee. In connection with any transaction
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consummated by the Company in which the Advisor introduced the other party
(except for any party identified by the Company on a schedule to be provided
contemporaneously with the execution of this Agreement) to the Company, during a
period ending six (6) months from the termination of this agreement (in each
such case, a "Transaction") the Company will pay to the Advisor a Transaction
Fee ("Transaction Fee") based on the aggregate consideration received or to be
paid by the Company in connection with such Transaction (as further defined
below), and computed as follows: 5% of the first million dollars; 4% of the next
million dollars; 3% of the next million dollars; 2% of the next million dollars
and 1% of the balance of the value of the transaction, or as otherwise mutually
agreed to in writing by the parties. The Transaction Fee will be payable in the
same forms and proportions as the aggregate consideration disbursed or received
by the Company, unless otherwise mutually agreed to in writing by the parties.
By way of example, if the Company consummates a transaction in which the Company
receives aggregate consideration of $2 million, consisting of $1 million in
securities and $1 million in cash, then the Transaction Fee will be payable by
the Company one-half in securities and one-half in cash.
(a) As used herein, the term "aggregate consideration" shall be deemed
to be the total amount disbursed or received by the Company (which shall be
deemed to include amounts paid into escrow) in connection with a Transaction.
(b) A Transaction Fee is payable in the event of and upon the closing
of a Transaction; provided, however, that if the aggregate consideration
consists of or may be increased by future payments or contingent payments
related to future earnings or operations, the Company, in its discretion, shall
have the choice to either (i) pay that portion of the Transaction Fee at closing
based on the present value of any future and/or contingent payments calculated
as at closing or (ii) pay that portion of the Transaction Fee calculated and
paid when and as such future and/or contingent payments are made to the Company;
provided further, however, that even if the Company exercises its discretion
under clause (ii) above, the entire Transaction Fee due to the Advisor will be
paid within twenty-four (24) months of the date this Agreement is terminated,
regardless of whether the Company has then received all payments that are to be
made to the Company in connection with the Transaction.
8. Representations and Warranties of the Company. The Company
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represents and warrants to the Advisor, except as otherwise disclosed in the
Company's filings with the Securities and Exchange Commission ("SEC") as
follows:
(a) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of its
incorporation, with full corporate power and authority to own its properties and
conduct its business and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which the nature of
its business or the character or location of its properties requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the business, properties or operations of the Company and its
subsidiaries as a whole.
(b) The Company has full legal right, power and authority to enter into
this Agreement, and to consummate the transactions provided for herein, and
this Agreement, when executed by the Company, will constitute a valid and
binding agreement, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy or other similar laws
affecting the rights of creditors generally or by general equitable principles
and except as the enforcement of indemnification provisions may be limited by
federal or state securities laws).
(c) Except as disclosed in the Company's public filings or on the
Disclosure Schedule attached hereto as Exhibit A ("Disclosure Schedule"), the
Company is not in violation of its articles of incorporation or bylaws or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material bond, debenture, note or other
evidence of indebtedness or in any material contract, indenture, mortgage, loan
agreement, lease, joint venture, partnership or other agreement or instrument to
which the Company is a party or by which it may be bound or is not in material
violation of any law, order, rule, regulation, writ, injunction or decree of any
governmental instrumentality or court, domestic or foreign; and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated therein and will not conflict with, or result in a material breach
of any of the terms, conditions or provisions of, or constitute a material
default under, or result in the imposition of any material lien, charge or
encumbrance upon any of the property or assets of the Company pursuant to, any
material bond, debenture, note or other evidence of indebtedness or any material
contract, indenture, mortgage, loan agreement, lease, joint venture, partnership
or other agreement or instrument to which the Company is a party nor will such
action result in the material violation by the Company of any of the provisions
of its articles of incorporation or bylaws or any law, order, rule, regulation,
writ, injunction, decree of any government, governmental instrumentality or
court, domestic or foreign, except where such violation will not have a material
adverse effect on the financial condition of the Company.
(d) The authorized, issued and outstanding capital stock of the Company
is as disclosed in writing to the Advisor and all of the shares of issued and
outstanding capital stock of the Company set forth therein have been duly
authorized, validly issued and are fully paid and nonassessable; the holders
thereof do not have any rights of rescission with respect therefor and are not
subject to personal liability for any obligations of the Company by reason of
being stockholders under the laws of the State in which the Company is
incorporated; and none of such outstanding capital stock is subject to or was
issued in violation of any preemptive or similar rights of any stockholder of
the Company.
(e) Except as disclosed in the Company's public filings or on the
Disclosure Schedule, the Company is not a party to or bound by any instrument,
agreement or other arrangement providing for it to issue any capital stock,
rights, warrants, options or other securities, except for this Agreement and as
disclosed in writing to the Advisor. Upon the issuance and delivery pursuant to
the terms hereof of any securities to the Advisor, the Advisor will acquire good
and marketable title to such securities free and clear of any lien, charge,
claim, encumbrance, pledge, security interest, defect or other restriction of
any kind whatsoever other than restrictions as may be imposed under the
securities laws.
(f) Except as disclosed in the Company's public filings or on the
Disclosure Schedule, the Company has good and marketable title to all of its
properties and assets as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except as disclosed in writing to the Advisor or
which are not materially significant or important in relation to its business or
which have been incurred in the ordinary course of business.
(g) The financial information contained in the Company's public filings
fairly presents the financial position and results of operations of the Company
at the respective dates and for the respective periods to which they apply.
Said information has been prepared in accordance with generally accepted
accounting principles applied on a basis which is consistent in all material
respects during the periods involved, except in the case of unaudited financial
statements' normal recurring adjustments
(h) There has been no material adverse change or material development
involving a prospective adverse change in the condition, financial or otherwise,
or in the prospects, value, operation, properties, business or results of
operations of the Company whether or not arising in the ordinary course of
business.
(i) To the knowledge of the Company, except as disclosed in the
Company's public filings or on the Disclosure Schedule, there is no pending or
threatened, action, suit or proceeding to which the Company is a party before or
by any court or governmental agency or body, which might result in any material
adverse change in the financial condition or business of the Company as a whole
or might materially and adversely affect the properties or assets of the Company
as a whole nor are there any actions, suits or proceedings against the Company
related to environmental matters or related to discrimination on the basis of
age, sex, religion or race which might be expected to materially and adversely
affect the conduct of the business, property, operations, financial condition or
earnings of the Company as a whole; and no labor disturbance by the employees of
the Company exists or is, to the knowledge of the Company, imminent which might
be expected to materially and adversely affect the conduct of the business,
property, operations, financial condition or earnings of the Company as a whole.
(j) Except as disclosed in the Company's public filings or on the
Disclosure Schedule, the Company has properly prepared and filed all necessary
federal, state, local and foreign income and franchise tax returns, has paid all
taxes shown as due thereon, has established adequate reserves for such taxes
which are not yet due and payable, and does not have any tax deficiency or
claims outstanding, proposed or assessed against it.
(k) The Company has sufficient licenses, permits, right to use trade or
service marks and other governmental authorizations currently required for the
conduct of its business as now being conducted and the Company is in all
material respects complying therewith. To its knowledge, none of the
activities or businesses of the Company are in material violation of, or cause
the Company to materially violate any law, rule, regulations, or order of the
United States, any state, county or locality, or of any agency or body of the
United States or of any state, county or locality.
(l) The Company knows of no outstanding claims for services either in
the nature of a finder's fee, brokerage fee or otherwise with respect to this
Agreement for which the Company or the Advisor may be responsible.
(m) The Company has its property adequately insured against loss or
damage.
(n) To the best of the Company's knowledge it has generally enjoyed a
satisfactory employer-employee relationship with its employees and, to the best
of its knowledge, is in substantial compliance in all material respects with all
federal, state, local, and foreign laws and regulations respecting employment
and employment practices, terms and conditions of employment and wages and
hours.
(o) Except as disclosed in the Company's public filings or on the
Disclosure Schedule, no officer or director of the Company, holder of 5% or more
of securities of the Company or any affiliate of any of the foregoing persons or
entities has or has had, either directly or indirectly, (i) an interest in any
person or entity which (A) furnishes or sells services or products which are
furnished or sold or are proposed to be furnished or sold by the Company, or (B)
purchases from or sells or furnishes to the Company any goods or services, or
(ii) a beneficiary interest in any contract or agreement to which the Company is
a party or by which it may be bound or affected.
(p) The minute books of the Company have been made available to the
Advisor and contain a complete summary of all meetings and actions of the
directors and stockholders of the Company, since the time of its incorporation
and reflect all transactions referred to in such minutes accurately in all
respects.
(q) Except as disclosed in the Company's public filings or on the
Disclosure Schedule, no holders of any securities of the Company or of any
options, warrants or other convertible or exchangeable securities of the Company
have the right to include any securities issued by the Company in any
registration statement to be filed by the Company or to require the Company to
file a registration statement under the Act and no person or entity holds any
anti-dilution rights with respect to any securities of the Company.
9. Covenants of the Company. The Company covenants and agrees with
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Advisor that:
(a) During the Term of this Agreement, the Company will deliver to the
designated representative of Advisor's investment banking team:
(1) as soon as they are available, copies of all reports (financial or
other) mailed to shareholders;
(2) as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, the NASD or any
securities exchange;
(3) every press release and every material news item or article of
interest to the financial community in respect of the Company or its
affairs which was prepared and released by or on behalf of the
Company; and
(4) any additional information of a public nature concerning the
Company (and any future subsidiaries) or its businesses which the
Advisor may reasonably request.
(b) During the Term of this Agreement, the Company will provide to a
designated representative of Advisor's investment banking team, a quarterly
current client list and shareholder list, for informational purposes only which
will be treated at all times as "Confidential Information" as defined in that
certain Confidentiality Agreement between the Company and the Advisor.
(c) During the Term of this Agreement, the Company will allow the
Advisor to nominate an observer to the Board of Directors of the Company. The
choice of such person shall be subject to the approval of the Company, which
approval shall not unreasonably be withheld. Such person shall become a party to
the Confidentiality Agreement between the Company and the Advisor. All
out-of-pocket expenses incurred by that person shall be reimbursed by the
Company who will not receive compensation different from the other non-officer
directors; provided, however, that any single expense item in excess of $100
shall be pre-approved by the Company.
(d) During the Term of this Agreement, the Company will give the
Advisor a right of first refusal to provide all future public and/or private
financings to the Company, provided that any such financings are made on terms
and conditions at least as favorable to the Company as is otherwise available to
the Company from other sources.
10. Costs and Expenses. In addition to the fees payable hereunder, the
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Company shall reimburse the Advisor, within five (5) business days of its
request, for any and all necessary and reasonable out-of-pocket expenses
incurred in connection with the services performed by the Advisor under this
Agreement; provided, however, that any single expense item in excess of $100 or
monthly expense in excess of $250 shall be pre-approved by the Company.
11. Company Information. The Company recognizes and confirms that, in
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advising the Company and in fulfilling its engagement hereunder, the Advisor
will use and rely on data, material and other information furnished to the
Advisor by the Company (the "Company Information"). The Company acknowledges
and agrees that in performing its services under this engagement, the Advisor
may rely upon the Company Information without independently verifying the
accuracy, completeness or veracity of same. The parties further acknowledge
that the Advisor shall have no responsibility for the accuracy of any statements
to be made by Company management contained in press releases or other
communications, including, but not limited to, filings with the SEC and the
NASD. In addition, in the performance of its services, the Advisor may look to
such others for factual information, economic advice and/or research upon which
to base its advice to the Company hereunder as the Advisor shall in good xxxxx
xxxx appropriate.
12. Indemnification. In the performance of its services, the Advisor
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shall be obligated to act only in good faith, and shall not be liable to the
Company for errors in judgment that are not the result of gross negligence,
willful misconduct, a breach of this Agreement or a violation of applicable law.
(a) The Company agrees to indemnify and hold harmless the Advisor, each
person who controls the Advisor within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended, and the Advisor's
officers, directors, employees, accountants, attorneys and agents (the
"Advisor's Indemnitees") against any and all losses, claims, expenses, damages
or liabilities, joint or several, to which they or any of them may become
subject (including the costs of any investigation and all reasonable attorneys'
fees and costs) or incurred by them, to the fullest extent lawful, in connection
with any pending or threatened litigation, legal claim or proceeding, whether or
not resulting in any liability, arising out of or in connection with the
services rendered by the Advisor or any transactions in connection with this
Agreement; provided, however, that the indemnity agreement contained in this
Section 12(a) shall not apply to any such losses, claims, related expenses,
damages or liabilities arising out of gross negligence, willful misconduct or
fraud of the Advisor, a material breach of the Advisor's covenants,
representations and warranties hereunder or a violation of applicable law.
(b) The Advisor agrees to indemnify and hold harmless the Company and
its officers, directors, employees, accountants, attorneys and agents (the
"Company's Indemnitees") against any and all losses, claims, expenses, damages
or liabilities, joint or several, to which they or any of them may become
subject (including the costs of any investigation and all reasonable attorneys'
fees and costs) or incurred by them, to the fullest extent lawful, in connection
with any pending or threatened litigation, legal claim or proceeding, whether or
not resulting in any liability, arising out of gross negligence, willful
misconduct or fraud of the Advisor, a breach of this Agreement or a violation of
applicable law; provided, however, that the indemnity agreement contained in
this Section 12(b) shall not apply to any such losses, claims, related expenses,
damages or liabilities arising out of the gross negligence, willful misconduct
or fraud of the Company, a material breach of the Company's representations and
warranties hereunder or a violation of applicable law.
(c) Each Advisor's Indemnitee or Company's Indemnitee, as the case may
be (an "Indemnified Person"), shall give prompt written notice to the Company or
the Advisor, as appropriate (the "Indemnifying Party"), after the receipt by
such Indemnified Person of any written notice of the commencement of any action,
suit or proceeding for which such Indemnified Person will claim indemnification
or contribution pursuant to this Agreement. The Indemnifying Party shall have
the right, exercisable by giving written notice to an Indemnified Person within
twenty (20) business days after the receipt of written notice from such
Indemnified Person of such commencement, to assume, at its expense, the defense
of any such action, suit or proceeding; provided, however, that an Indemnified
Person shall have the right to employ counsel in any such action, suit or
proceeding, and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless: (i)
the Indemnifying Party fails to assume the defense of such action, suit or
proceeding or fails to employ separate counsel reasonably satisfactory to such
Indemnified Person in any such action, suit or proceeding; or (ii) the
Indemnifying Party and such Indemnified Person shall have been advised by
counsel that there may be one or more defenses available to such Indemnified
Person which are in conflict with, different from or additional to those
available to the Indemnifying Party, or another Indemnified Person, as the case
may be (in which case, if such Indemnified Person notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such Indemnified
Person); it being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or proceeding of separate but substantially
similar or related actions or proceedings arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time acting for each Indemnified Person in any one jurisdiction. The
Indemnifying Party shall not settle or compromise or consent to the entry of any
judgment in or otherwise seek to terminate any pending or threatened action,
claim, suit or proceeding in which any Indemnified Person is a party and as to
which indemnification or contribution has been sought by such Indemnified Person
hereunder, unless such Indemnified Person has given its prior written consent or
the settlement, compromise, consent or termination includes an express
unconditional release of such Indemnified Person, satisfactory in form and
substance to such Indemnified Person, from all losses, claims, damages or
liabilities arising out of such action, claim, suit or proceeding.
(d) If for any reason the indemnity provided for in this Section 12 is
unavailable to an Indemnified Person or insufficient to hold an Indemnified
Person harmless, then the Indemnifying Party, to the fullest extent permitted by
law, shall contribute to the amount paid or payable by such Indemnified Person
as a result of such claims, liabilities, losses, damages or expenses in such
proportion as its appropriate to reflect (i) the relative benefits received by
the Company on one hand and by the Advisor on the other, from the transaction or
proposed transaction under this Agreement and (ii) the relative fault of the
Company and the Advisor, as well as any relevant equitable considerations. The
relative fault of the Company on the one hand and the Advisor on the other shall
be determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Advisor. The indemnity, contribution and expense reimbursement obligations set
forth herein (i) shall be in addition to any liability an Indemnifying Party may
have to any Indemnified Person at common law of otherwise, (ii) shall survive
the termination of this Agreement, (iii) shall apply to any modification of this
Agreement and shall remain in full force and effect following the completion or
termination of the Agreement, (iv) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Advisor or
any other Indemnified Person, and (v) shall be binding on any successor or
assign of the Company or the Advisor and the respective successors or assigns to
all or substantially all of the Company's or the Advisor's business and assets.
13. Use of Advice by the Company. The Company acknowledges that all
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opinions and advice (written or oral) given by the Advisor to the Company in
connection with the engagement of the Advisor are intended solely for the
benefit and use of the Company in considering the matters to which they relate,
and the Company agrees that no person or entity other than the Company and its
Board of Directors shall be entitled to make, use or rely upon the advice of the
Advisor to be given hereunder, and no such opinion or advice shall be used for
any other purpose, or reproduced, disseminated, quoted or referred to at any
time, in any manner or for any purpose, nor may the Company make any public
references to the Advisor, or use the Advisor's name in any reports or releases
of the Company without the Advisor's prior written consent.
The Company acknowledges that the Advisor makes no representations or
commitment whatsoever as to making a market in the Company's securities or
recommending or advising its clients, or any other persons, to purchase the
Company's securities. Research reports or corporate business reports that may
be prepared by the Advisor will, when and if prepared, be done solely on the
merits and the judgment and analysis of the Advisor or any of its senior
personnel.
14. The Advisor as an Independent Contractor. The Advisor shall
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perform its services hereunder as an independent contractor and not as an
employee of the Company or an affiliate thereof. It is expressly understood and
agreed to by the parties hereto that the Advisor shall have no authority to act
for, represent or bind the Company or any affiliate thereof, in any manner,
except as may be agreed to expressly by the Company in writing from time to
time.
15. Termination. This Agreement may be terminated by either party
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upon thirty (30) days written notice; provided, however, that all compensation
earned prior to the effective date of such termination (including any amounts to
become due on account of a Financing Fee or Transaction Fee) shall be unaffected
by such termination. In addition, subject to section 5.(b) and 5.(c) above,
termination of this Agreement shall not affect the Advisor's rights to the
Shares or under the Warrant.
16. Representations, Warranties and Agreements to Survive. The
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respective indemnities, agreements, representations, warranties and other
statements of the Company and the Advisor set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Advisor, the Company, or any of their respective
officers or directors.
17. Notices. All communications hereunder will be in writing and,
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except as otherwise expressly provided herein, sent by overnight mail, to the
Company at: Power2Ship, Inc., 000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, XX 00000,
Attn: Xxxxxxx Xxxxx, CEO, and to the Advisor at: Newbridge Securities
Corporation, 0000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xx.Xxxxxxxxxx, XX 00000,
Attn: Xxx X. Xxxxx, President.
18. Parties in Interest. This Agreement is made solely for the
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benefit of the Advisor and the Company, and their respective controlling
persons, directors and officers, and their respective successors, assigns,
executors and administrators. No other person shall acquire or have any right
under or by virtue of this Agreement.
19. Headings. The section headings in this Agreement have been
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inserted as a matter of convenience of reference and are not a part of this
Agreement.
20. Applicable Law; Venue and Jurisdiction. This Agreement shall be
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governed by and construed in accordance with the laws of the State of Florida,
without giving effect to conflict of law principles. Any action arising out of
this agreement shall be brought exclusively in a court of competent jurisdiction
located in Broward County, Florida, and the parties hereby irrevocably submit to
the personal jurisdiction of such courts, and waive any objection they now or
hereafter may have to the laying of venue in such courts.
21. Integration. This Agreement constitutes the entire agreement and
-----------
understanding of the parties hereto, and supersedes any and all previous
agreements and understandings, whether oral or written, between the parties with
respect to the matters set forth herein. No provision of this Agreement may be
amended, modified or waived, except in a writing signed by all of the parties
hereto.
22. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which together shall constitute one and the same
instrument.
23. Authority. This Agreement has been duly authorized, executed and
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delivered by and on behalf of the Company and the Advisor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
THE COMPANY THE ADVISOR
Power2Ship, Inc. Newbridge Securities Corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx X. Xxxxx
----------------- ----------------
Xxxxxxx Xxxxx Xxx X. Xxxxx
Chief Executive Officer President
EXHIBIT A
DISCLOSURE SCHEDULE
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MODIFICATION NO. 1 TO
BUSINESS ADVISORY AGREEMENT DATED NOVEMBER 4, 2003
BY AND BETWEEN
POWER2SHIP, INC. AND NEWBRIDGE SECURITIES CORPORATION
Page 2, Section 5 "Advisory Fee", (b) should be replaced with:
"the Company will sell to the Advisor up to 500,000 shares of the Company's
common stock (the "Shares") at a price of $0.01 per share, which right shall be
exercisable by the Advisor with respect to 125,000 Shares on the 91st day
following the Commencement Date, 125,000 Shares on the 120th day following the
Commencement Date and 250,000 Shares on the 150th day following the Commencement
Date."
AGREED:
THE COMPANY THE ADVISOR
Power2Ship, Inc. Newbridge Securities Corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx X. Xxxxx
--------------------- ----------------------
Xxxxxxx Xxxxx Xxx X. Xxxxx
Chief Executive Officer President
Dated: January 2, 2004 Dated: January 2, 2004
