Xxxxx Investment Group
MERGER AND ACQUISITION ADVISOR AGREEMENT
Merger and Acquisition Advisor Agreement dated as of the 29th day of August
2003, by and between Xxxxx Investment Group, Inc. ("RIG"), with a principal
place of business at 00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 and The Classica Group, Inc. (the "Company") with a principal
place of business at 0000 Xxxx Xxxxxx, Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H
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WHEREAS, RIG will be introducing the Company to other corporate entities
("Candidates"), for the purpose of the Company possibly effecting an acquisition
of or other business combination ("Transaction") with the Candidate, subject to
the satisfaction of certain conditions, including the satisfactory completion of
a due diligence review of anything the Company considers, in its sole
discretion, to be reasonable necessary to review in order to make its decision
to consummate the Transaction, including but not limited to the Candidate's
books, records, financial statements, assets and operations. RIG will not be
responsible for any of the accounting, legal, or fees for accounting or legal
should any transactions be consummated by the Company with any other entities.
RIG will solely act as an Advisor to the Company.
NOW THEREFORE, the parties hereto agree as follows:
1. Due Diligence. RIG shall engage in due diligence of The Classica
Group as it deems appropriate. In order for RIG to conduct a
thorough financial analysis of the company. RIG shall make its
best efforts to review all publicly available financial
information, including public filings and historical financial
statements, corporate business plans, sales contracts, customer
acquisitions or lists and letters of intent and prior research
readily available in the public domain.
2. Term. This Agreement shall be for the period of one year from the
date contract is executed by both parties.
3. Compensation. As compensation to RIG, Company shall grant to RIG
six hundred thousand (600,000) options to purchase common stock of
The Classica Group (Stock Symbol: TCGI) at seventy five cents
($.75) per share (last trade at the close of Thursday August 28th
(8-28-2003) was $.75). The Company agrees to register the shares
underlying this option on a Form S-8 Registration.
4. Payment of Expenses. RIG agrees to pay its own expenses in
promoting any Merger and Acquisition transactions and preparing
the Evaluation Report.
5. Independent Contractors. RIG is an independent contractor and not
an agent, servant or employee of the Company. RIG shall have no
authority to bind the Company.
6. Liquidated Damages. In the event that Company fails to register
the Shares to RIG five (5) days following to execution of this
agreement, or breaches any obligation, representation or warranty
hereunder, Buyer shall be entitled to recover from Company as
liquidated damages and not as a penalty, the sum of two hundred
thousand dollars ($200,000). The parties agree that it is
impractical to measure RIG's damages if the Shares are not
delivered or if there is any breach of this Agreement and that the
liquidated damages are a reasonable estimate of such damages.
7. Confidentiality. RIG agrees that it will not at any time during
the term of this Agreement and at any time thereafter, disclose
any confidential knowledge or information regarding the Company to
any persons unless it receives the written consent of the Company
to such disclosure or the information ceases to be confidential by
reason of (i) its public disclosure by the Company, (ii) its
becoming generally and publicly known, or (iii) its becoming known
by RIG through a third party who is not bound by any
Confidentiality Agreement.
8. Non-Disclosure. No person or entity, other than the Company, shall
be entitled to make use of or rely upon the advice, services or
materials rendered or prepared by RIG hereunder and the Company
shall not directly or indirectly disseminate, distribute or
otherwise make available any advice, services or materials
prepared by RIG without prior RIG consent.
9. No Liability and Indemnification. With regard to the services to
be performed by RIG pursuant to the terms of this agreement, RIG
shall not be liable to the Company, or anyone who may claim any
right due to any relationship with the Company, for any acts,
omissions, in the performance of services on the part of RIG or
on the part of the agents, or employees of RIG, except when said
acts, errors or omissions of RIG are due to willful misconduct or
gross negligence. The Company shall hold RIG free and harmless
from any obligations, costs, claims, judgements, attorney's fees
and attachments arising from or growing out of the services
rendered to the Company pursuant to the terms of this agreement
or in any way connected with rendering of services, except when
the same shall arise due to the willful misconduct or gross
negligence of RIG and RIG is adjudged to be guilty of willful
misconduct or gross negligence by a court of competent
jurisdiction. In such event no action shall be entertained by
said court or any court of competent jurisdiction is filed more
than one (1) year subsequent to the date of the cause(s) of
action actually accrued regardless of whether damages were
otherwise as of said time calculable. In the absence of gross
negligence, neither RIG nor any associate, officer, employee,
affiliate, director or stockholder of RIG shall be subject to any
liability to the Company or to any officer, employee, director or
stockholder for any act or omission in the course of, or in
connection with, or for any error, inaccuracy or omission,
material or otherwise, which may appear in any review document or
other information furnished to or on behalf of the Company.
If for any reason the foregoing indemnification is unavailable to
RIG or insufficient to hold it harmless, then the Company shall
contribute to the amount paid or payable by RIG as a result of
such loss, claim, damage, or liability in such proportion as is
appropriate to reflect not only the relative benefits received by
the Company, its shareholders and/or its affiliates on the one
hand and RIG on the other but also the relative fault of the
Company and RIG, as well as any relevant equitable considerations.
10. Miscellaneous. This Agreement embodies the entire agreement and
understanding of the parties hereto and supercedes all prior
agreements and understanding written or oral, relating to the
subject matter hereof, and may not be modified or amended or any
of its terms or provisions waived or discharged, except in
writing, signed by the party against whom such modification,
waiver or discharge is sought to be enforced.
This Agreement is not assignable without the prior written consent
of the other party. The obligations of RIG hereunder are intended
solely for the benefit of the Company and RIG shall not have any
obligations hereunder to any parties other than the Company.
Each of RIG and the Company represents that this Agreement has in
all respects been duly authorized, executed and delivered by and
on behalf of itself. The covenants of the Company contained in the
paragraphs under the headings "No Liability and Indemnification"
and "Non-Disclosure" shall survive expiration of the term. During
the term, RIG shall be free to consult and conduct business for
and with others, including competitors of the Company and to
engage in activities similar to those contemplated hereunder
whether for its own account or for the account of others. All
rights and obligations in connection herewith shall be
interpreted, construed and enforced in accordance with and
governed by the applicable laws of the State of California. RIG
and the Company consent to the jurisdiction of the Federal and
State courts located in California for the commencement of any
action arising out of this Agreement.
IN WITENESS WHEREOF, the undersigned have executed this Agreement
as of the day and date first above written.
Xxxxx Investment Group, Inc.
By: /s/ Xxx Xxxxx
Xxx Xxxxx
CEO
The Classica Group, Inc.
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Chairman and CEO
