FINANCIAL CONSULTING AGREEMENT
This FINANCIAL CONSULTING AGREEMENT (this "Agreement") made as of this
1st day of December, 1999 is by and between XxxxxxxxXxxxxx.Xxx, Inc., a Florida
corporation, with its principal place of business at 0000 X. Xxxxx Xxx, Xxxxx
000, Xxxx Xxxxx, XX 00000 (the "Company"), and Xxxxxx Xxxxxxx, an individual,
having his principal place of business at 0000 Xxxxxxxx Xxxx, Xxxx Xxxxx, XX
00000. (the "Consultant").
R E C I T A L S:
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A. The Company is a public company with a class of equity
securities publicly traded, and desires to retain Consultant to provide certain
financial consulting services.
B. Consultant desires to provide certain financial consulting
services to the Company in accordance with the terms and conditions contained
hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. CONSULTING SERVICES. During the term of this Agreement,
Consultant is hereby retained by the Company to provide financial consulting
services to the Company, as said services relate to corporate finance matters,
including, without limitation, advice regarding acquisitions, consolidations,
mergers, joint ventures and financial strategies. Consultant shall provide such
financial consulting services as reasonably requested by the Company during the
term of this Agreement, provided that nothing hereunder shall require Consultant
to devote a minimum number of hours per calendar month toward the performance of
services hereunder. The level and scope of services that may reasonably be
requested hereunder shall be dependent, in part, on the amount of compensation
to be paid Consultant by the Company hereunder. Unless otherwise agreed to by
Consultant, all services hereunder shall be performed by Consultant, in its sole
discretion, at its principal place of business or other offices. Notwithstanding
anything contained herein to the contrary, the services to be performed by
Consultant hereunder may be performed by any employee or consultant to
Consultant.
2. TERM. The term of this Agreement shall be for one year
commencing as of the date first written above and terminating one day prior to
the anniversary hereof; provided, however, that this Agreement shall be
renewable for subsequent one year terms, by mutual agreement of the parties in
writing, at least thirty (30) days prior to the expiration of the then current
term.
3. COMPENSATION. In consideration for the performance of services
hereunder, the Company hereby agrees to pay Consultant the aggregate sum of
$125,000 in monthly installments of $10,416.67 due and payable on the 15th of
each month.. In addition, The Company hereby grants Consultant 300,000 options
to purchase the Company's restricted common stock at a price of $1.87 per share
which represents the bid price for the Company's stock as of the close of
business as of the date of this agreement. The Company hereby agrees to pay on a
pre-approval basis all out-of-pocket expenses incurred by Consultant in
connection with such services to be rendered hereunder. Consultant may, from
time to time, deem it to be in the best interests of the Company to retain an
outside consultant in connection with certain specific acquisitions or proposed
transactions. In such event, the Company hereby agrees to pay any and all fees
and expenses of such consultant.
4. REPRESENTATIONS OF THE COMPANY. The Company hereby represents
and warrants that any and all information supplied hereunder to Consultant in
connection with any and all services to be performed hereunder by Consultant for
and on behalf of the Company shall be true, complete and correct as of the date
of such dissemination and shall not fail to state a material fact necessary to
make any of such information not misleading. The Company hereby acknowledges
that the ability of Consultant to adequately provide financial consulting
services hereunder and/or to initiate and/or effectuate introductions on behalf
of the Company with respect to potential acquisitions is dependent upon the
prompt dissemination of accurate, correct and complete information to
Consultant. In addition, and notwithstanding anything contained herein to the
contrary, nothing hereunder shall obligate Consultant to make any minimum number
of introductions hereunder or to initiate any merger or acquisitions involving
or relating to the Company. The Company further represents and warrants
hereunder that this Agreement and the transactions contemplated hereunder, have
been duly and validly authorized by all requisite corporate action; that the
Company has the full right, power and capacity to execute, deliver and perform
its obligations hereunder; and that this Agreement, upon execution and delivery
of the same by the Company, will represent the valid and binding obligation of
the Company enforceable in accordance with its terms. The representations and
warranties set forth herein shall survive the termination of this Agreement.
5. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify, defend and hold
harmless Consultant, its officers, directors, principals, employees, affiliates,
and shareholders, and their successors and assigns from and against any and all
claims, damages, losses, liability, deficiencies, actions, suits, proceedings,
costs or legal expenses (collectively the "Losses") arising out of or resulting
from: (i) any breach of a representation, or warranty by the Company contained
in this Agreement; or (ii) any activities or services performed hereunder by
Consultant, unless such Losses were the result of the intentional misconduct or
gross misconduct of Consultant; or (iii) any and all costs and expenses
(including reasonable attorneys' and paralegals' fees) related to the foregoing,
and as more fully described below.
(b) If Consultant receives written notice of the commencement
of any legal action, suit or proceeding with respect to which the Company is or
may be obligated to provide indemnification pursuant to Section 7 above,
Consultant shall, within thirty (30) days of the receipt of such written notice,
give the Company written notice thereof (a "Claim Notice"). Failure to give such
Claim Notice within such thirty (30) day period shall not constitute a waiver by
Consultant of its right to indemnity hereunder with respect to such action, suit
or proceeding. Upon receipt by the Company of a Claim Notice from Consultant
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), Consultant may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
Company shall cooperate in the defense of the Third Party Claim and shall
furnish such records, information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be reasonably required
in connection therewith. Consultant shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
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at the expense of Consultant unless the Company shall not have promptly employed
counsel to assume the defense of the Third Party Claim, in which event such fees
and expenses shall be borne solely by the Company. The Company shall not satisfy
or settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of Consultant. If the
Company shall fail with reasonable promptness either to defend such Third Party
Claim or to satisfy or settle the same, Consultant may defend, satisfy or settle
the Third Party Claim at the expense of the Company and the Company shall pay to
Consultant the amount of any such Loss within ten (10) days after written demand
therefor. The indemnification provisions hereunder shall survive the termination
of this Agreement.
6. AMENDMENT. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is evidenced by a
written instrument, executed by the party against which such modification,
waiver, amendment, discharge, or change is sought.
7. NOTICES. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or the third
calendar day after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses herein above first
mentioned or to such other address as any party hereto shall designate to the
other for such purpose in the manner hereinafter set forth.
8. ENTIRE AGREEMENT. This Agreement contains all of the
understandings and agreements of the parties with respect to the subject matter
discussed herein. All prior agreements, whether written or oral, are merged
herein and shall be of no force or effect.
9. SEVERABILITY. The invalidity, illegality or unenforceability
of any provision or provisions of this Agreement will not affect any other
provision of this Agreement, which will remain in full force and effect, nor
will the invalidity, illegality or unenforceability of a portion of any
provision of this Agreement affect the balance of such provision. In the event
that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
10. CONSTRUCTION AND ENFORCEMENT. This Agreement shall be
construed in accordance with the laws of the State of Florida, without
application of the principles of conflicts of laws. If it becomes necessary for
any party to institute legal action to enforce the terms and conditions of this
Agreement, the successful party will be awarded reasonable attorneys' fees at
all trial and appellate levels, expenses and costs. Any suit, action or
proceeding with respect to this Agreement shall be brought in the state or
federal courts located in Palm Beach County in the State of Florida. The parties
hereto hereby accept the exclusive jurisdiction of those courts for the purpose
of any such suit, action or proceeding. Venue for any such action, in addition
to any other venue permitted by statute, will be Palm Beach County, Florida. The
parties hereto hereby irrevocably waive, to the fullest extent permitted by law,
any objection that any of them may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
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or any judgment entered by any court in respect thereof brought in Palm Beach
County, Florida, and hereby further irrevocably waive any claim that any suit,
action or proceeding brought in Palm Beach County, Florida, has been brought in
an inconvenient forum.
11. BINDING NATURE. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties, and their
respective successors and assigns.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XxxxxxxxXxxxxx.Xxx, Inc.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
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Title: President & Chief Executive Officer
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Xxxxxx Xxxxxxx
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
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