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EXHIBIT 10.20
FINANCIAL CONSULTING AGREEMENT
This Agreement is made on [Closing Date], by and between DYNAMICWEB
ENTERPRISES, INC., a New Jersey corporation having its principal office at 000
Xxxxx 00 Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company"), and X.X. XXXXXX & CO., INC., a New York corporation having an office
at 0000 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("the Consultant").
In consideration of the mutual premises contained herein and on the terms
and conditions hereinafter set forth, the Company and Consultant agree as
follows:
1. PROVISION OF SERVICES.
(a) Consultant shall, to the extent reasonably required in the conduct
of the business of the Company, place at the disposal of the Company its
judgment and experience and, to such extent and at the prior written request of
the President of the Company to the Consultant's Managing Director of Corporate
Finance, provide business development and corporate finance services to the
Company, including the following:
(i) evaluation of the Company's managerial and financial
requirements;
(ii) assistance in recruiting, screening, evaluating and
recommending key personnel, directors, accountants, commercial and
investment bankers, underwriters, attorneys and other professional
consultants;
(iii) assistance in the preparation of budgets and business
plans;
(iv) advice with regard to sales planning and sales activities;
(v) advice with regard to stockholder relations and public
relations matters; and
(vi) evaluation of financial requirements and assistance in
financial arrangements.
Notwithstanding the foregoing, Consultant shall not provide services to the
Company hereunder in connection with mergers, acquisitions, consolidations,
joint ventures and similar corporate finance transactions, which transactions
are instead the subject of a certain letter agreement dated this date between
Consultant and the Company.
(b) In addition to the foregoing, for a period of thirty-six (36)
months, the Consultant shall have the option to select an observer designated by
the Consultant and reasonably acceptable to the Company, to receive notice of
and to attend all meetings of the Board of Directors of the Company (the
"Observer"). Such Observer shall have no voting rights, and shall be reimbursed
for all out-of-pocket expenses incurred in attending meetings
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of the Board of Directors. The Company shall hold at least four (4) meetings of
the Board of Directors per year. The Observer will be indemnified by the Company
against any claims arising out of his participation at Board meetings.
Additionally, the Company shall provide the Observer with the same expense
reimbursement and cash allowance in connection with meetings of the Board of
Directors as it provides to non-employee Directors of the Company.
(c) Consultant shall use reasonable efforts in the furnishing of
advice and recommendations, and for this purpose Consultant shall at all times
maintain or keep and make available qualified personnel or a network of
qualified outside professionals for the performance of its obligations under
this Agreement. To the extent reasonably practicable, Consultant shall so use
its own personnel rather than outside professionals.
2. COMPENSATION. In consideration of Consultant's services hereunder, the
Company shall pay Consultant a consulting fee of $6,000 per month, payable one
year in advance on the date hereof (that being the closing date of the sale of
the Company's securities pursuant to a Registration Statement on Form SB-2 filed
with the Securities and Exchange Commission). Consultant hereby accepts such
compensation.
3. EXPENSES. The Company shall reimburse Consultant for reasonable expenses
incurred by Consultant in connection with its services rendered hereunder. All
expenses in excess of $500 shall be approved in writing by the Company in
advance. Consultant shall invoice the Company for its expenses incurred. Payment
of invoices shall be due upon receipt.
4. LIABILITY; INDEMNIFICATION.
(a) It is expressly understood and agreed that, in furnishing the
Company with management advice and other services as herein provided, neither
Consultant nor any of its officers, directors, employees or agents (including
without limitation the Observer) shall be liable to the Company, its
stockholders, its creditors or any other person or entity for errors of judgment
or for any act or omission except willful malfeasance, bad faith or gross
negligence in the performance of its duties hereunder. It is further understood
and agreed that Consultant may rely upon information furnished to it and
reasonably believed by it to be accurate and reliable and that, except as herein
provided, Consultant shall not be liable for any loss suffered by the Company,
or by any officer, director, employee, stockholder or creditor of the Company,
by reason of the Company's action or non-action on the basis of any advice,
recommendation or approval of Consultant or any of its officers, directors,
employees or agents.
(b) The Company shall indemnify, save harmless and defend Consultant
and its officers, directors, employees and agents (including without limitation
the Observer) from, against and in respect of any loss, damage, liability,
judgment, cost or expense whatsoever, including counsel fees, suffered or
incurred by it or him by reason of, or on account of, its status or activities
as a consultant to the Company hereunder (and, in the case of the Observer, his
participation in meetings of the Board of Directors of the Company).
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(c) Consultant shall indemnify, save harmless and defend the Company
and its officers, directors, employees and agents from, against and in respect
of any loss, damage, liability, judgment, cost or expense whatsoever, including
counsel fees, suffered or incurred by it or him by reason of, or on account of,
willful malfeasance, bad faith or gross negligence in the performance of
Consultant's duties hereunder.
(d) In the event that the Consultant is held liable under this Section
4, the Consultant's liability is limited to the total compensation received by
Consultant pursuant to Section 2 of this Agreement. In no event shall Consultant
be liable for any incidental or consequential damages to the Company, its
stockholders, creditors or any other person or entity even if advised of the
possibility thereof.
5. STATUS OF CONSULTANT. Consultant shall at all times be an independent
contractor of the Company and, except as expressly provided or authorized by
this Agreement, shall have no authority to act for or represent the Company.
6. OTHER ACTIVITIES OF CONSULTANT. The Company recognizes that Consultant
now renders and may continue to render management and other services to other
companies which may or may not have policies and conduct activities similar to
those of the Company. Consultant shall be free to render such advice and other
services and the Company hereby consents thereto. Consultant shall not be
required to devote its full time and attention to the performance of its duties
under this Agreement, but shall devote only so much of its time and attention as
Consultant deems reasonable or necessary for such purposes.
7. CONTROL. Nothing contained herein shall be deemed to require the Company
to take any action contrary to its Certificate of Incorporation or By-laws, or
any applicable statute or regulation, or to deprive its Board of Directors of
its responsibility for and control of the conduct of the affairs of the Company.
8. TERM. Except as provided by Section 1(b) hereof, Consultant's
performance of services hereunder shall be for a term of one year commencing on
the date hereof.
9. IN GENERAL.
(a) This Agreement sets forth the entire agreement and understanding
between the parties with respect to its subject matter and supersedes all prior
discussions, agreements and understandings of every and any nature between them
with respect thereto. This Agreement may not be modified except in a writing
signed by the parties.
(b) This Agreement has been made in the State of New York and shall be
governed by and construed in accordance with the laws thereof without regard to
principles of conflict of laws. Any proceeding commenced by either party to
enforce or interpret any provision of this Agreement shall be brought in Monroe
County, New York. The Company hereby submits to the jurisdiction of the federal
and state courts located in such County for such purposes.
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(c) Neither this Agreement nor either party's rights hereunder shall
be assignable by any party hereto without the prior written consent of the other
party hereto.
(d) 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers or representatives duly authorized on the day and year
first above written.
DYNAMICWEB ENTERPRISES, INC.
By:
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Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: President and Chief Executive Officer
X.X. XXXXXX & CO., INC.
By:
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Name: Xxxxxxx Xxxxxxx
Title: Managing Partner
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