Exhibit 10
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ( the "Agreement") is made this 1st day of
April 1999, by and between CyberAmerica Corporation ("Advisor") and Xxxxxxx X.
Xxxxxx (the "Client").
WHEREAS, the Client desires to retain Advisor to advise and assist the
Client in financial and corporate consulting on the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Client and Advisor
agree as follows:
1. Engagement
The Client hereby retains Advisor, effective as of the date hereof (
the "Effective Date") and continuing until termination, as provided
herein, to assist the Client with performing general corporate tasks
and other items that the Client needs assistance with, the Advisor will
additionally provide advice in dealing with corporate and client issues
(the "Services"). The Services are to be provided on a "best efforts"
basis directly and through Advisor's officers or others employed or
retained and under the direction of Advisor ("Advisor's Personnel").
2. Term
This Agreement shall have an initial term of nine (9) months (the
"Primary Term"), commencing with the Effective Date.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisor's Personnel as it deems
necessary to provide the Services. The particular amount of time may
vary from day to day or week to week. Except as otherwise agreed,
Advisor's monthly statement identifying, in general, tasks performed
for the Client shall be conclusive evidence that the Services have been
performed. Additionally, in the absence of willful misfeasance, bad
faith, negligence or reckless disregard for the obligations or duties
hereunder by Advisor, neither Advisor nor Advisor's Personnel shall be
liable to the Client for any act or omission in the course of or
connected with rendering the Services, including but not limited to
losses that may be sustained in any corporate act in any subsequent
Business Opportunity (as defined herein) undertaken by the Client as a
result of advice provided by Advisor or Advisors's Personnel.
4. Compensation
The Client agrees to pay Advisor a fee for the Services ("Advisory
Fee") of Two Hundred Fifty Thousand Dollars ($250,000).
5. Place of Services
39
The Services provided by Advisor or Advisor's Personnel hereunder will
be performed at Advisor's offices except as otherwise mutually agreed
by Advisor and the Client.
6. Independent Contractor
Advisor and Advisor's Personnel will act as an independent contractor
in the performance of its duties under this Agreement. Accordingly,
Advisor will be responsible for payment of all federal, state, and
local taxes on compensation paid under this Agreement, including income
and social security taxes, unemployment insurance, and any other taxes
due relative to Advisor's Personnel, and any and all business license
fees as may be required. This Agreement neither expressly nor impliedly
creates a relationship of principal and agent, or employee and
employer, between Advisor's Personnel and the Client. Neither Advisor
nor Advisor's Personnel are authorized to enter into any agreements on
behalf of the Client. The Client expressly retains the right to
approve, in its sole discretion, each Asset Opportunity or Business
Opportunity introduced by Advisor, and to make all final decisions with
respect to effecting a transaction on any Business Opportunity.
7. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Client and Advisor, or employee and
employer as between Advisor's Personnel and the Client.
8. Termination
The Client and Advisor may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) By the Client.
-------------
(i) If during the Primary Term of this Agreement or any
Extension Period, Advisor is unable to provide the Services
as set forth herein for thirty (30) consecutive business
days because of illness, accident, or other incapacity of
Advisor's Personnel; or,
(ii) If Advisor willfully breaches or neglects the duties
required to be performed hereunder; or,
(B) By Advisor.
-----------
(i) If the Client breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If the Client ceases business or, other than in an Initial
Merger, sells a controlling interest to a third party, or
agrees to a consolidation or merger of itself with or into
another corporation, or enters into such a transaction
outside of the scope of this
40
Agreement, or sells substantially all of its assets to
another corporation, entity or individual outside of the
scope of this Agreement; or,
(iii)If the Client subsequent to the execution hereof has a
receiver appointed for its business or assets, or otherwise
becomes insolvent or unable to timely satisfy its
obligations in the ordinary course of business, including
but not limited to the obligation to pay the Initial Fee,
the Transaction fee, or the Advisory Fee; or,
(iv) If the Client subsequent to the execution hereof institutes,
makes a general assignment for the benefit of creditors, has
instituted against it any bankruptcy proceeding for
reorganization or rearrangement of its financial affairs,
files a petition in a court of bankruptcy, or is adjudicated
a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto
by the Client to Advisor is determined to be materially
false or misleading.
In the event Advisor elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term or
any Extension Period by mutual written agreement, or by the Client for
the reasons set forth in A(i) and (ii) above, the Client shall only be
responsible to pay Advisor for unreimbursed expenses, Advisory Fee and
Transaction Fee accrued up to and including the effective date of
termination. If this Agreement is terminated by the Client for any
other reason, or by Advisor for reasons set forth in B(i) through (v)
above, Advisor shall be entitled to any outstanding unpaid portion of
reimbursable expenses, Transaction Fee, if any, and the balance of the
Advisory Fee for the remainder of the unexpired portion of the
applicable term (Primary Term or Extension Period) of the Agreement.
9. Indemnification
Subject to the provisions herein, the Client and Advisor agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of
any representation, warranty, covenant, condition, or agreement of the
other party to this Agreement.
10. Remedies
Advisor and the Client acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance.
Such remedy, however, shall be cumulative and nonexclusive and shall be
in addition to any other remedy to which the parties may be entitled.
11. Miscellaneous
(A) Subsequent Events. Advisor and the Client each agree to notify
the other party if, subsequent to the date of this Agreement,
either party incurs obligations which could compromise its
efforts and obligations under this Agreement.
41
(B) Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) Further Actions and Assurances. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents as may be
reasonably necessary to effectuate the purposes of this
Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this Agreement
to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to
enforce each and every such provision. No waiver of any breach
of or noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
(E) Assignment. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other.
(F) Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile
transmission charges prepaid, provided that the communication
is addressed:
(i) In the case of the Client:
Xxxxxxx X. Xxxxxx
000 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(ii) In the case of Advisor:
CyberAmerica Corporation
000 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Vice President
or to such other person or address designated in writing by the Client
or Advisor to receive notice.
42
(G) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
(H) Governing Law. This Agreement was negotiated and is being
contracted for in Utah, and shall be governed by the laws of the
State of Utah, and the United States of America, notwithstanding
any conflict-of-law provision to the contrary.
(I) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the parties
relating to the subject matter of this Agreement. No oral
understandings, statements, promises, or inducements contrary to
the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other
than as set forth herein, have been made by any party.
(K) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full
force and effect.
(L) Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument,
by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on
behalf of such party can be seen. In this event, such execution
and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(M) Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date above written.
The "Client" "Advisor"
Xxxxxxx X. Xxxxxx CyberAmerica Corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------ ---------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
43
