INVESTMENT BANKING CONSULTING AGREEMENT
Agreement made as of October 9, 2003 by and between Hotel Outsource Management
International Inc ("Contractor"), a Delaware Corporation with its principal
offices at 00 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxxx X.
Xxxxxxx, with his principal offices at 00000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Contractor requires expertise in the area of investment
banking to support its business and growth; and
WHEREAS, Xxxxxxx Xxxxxxx has substantial contacts among the members of
the investment community, investment banking experience and expertise, and
desires to act as a consultant to provide investment banking and related
advisory services;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein and subject specifically to the
conditions hereof, and intending to be legally bound thereby, the parties agree
as follows:
1. CERTAIN DEFINITIONS.
When used in this Agreement, the following terms shall have the meanings set
forth below:
1.1 Affiliate - any persona or entities controlled by a party.
1.2 Contractor - the Contractor who uses the services of Xxxxxxx
Xxxxxxx.
1.3 Contractor Clients - the Contractor's clients who use the services
of Xxxxxxx Xxxxxxx through the Contractor.
1.4 Contact Person - the person who shall be primarily responsible for
carrying out the duties of each of the parties hereunder. Contractor
and Xxxxxxx Xxxxxxx shall each appoint a Contact Person to be
responsible for their respective duties. In the event that one party
give notice to the other party in writing that in their reasonable
opinion, the other party's Contact Person is not able to fulfill
their duties and responsibilities hereunder, both parties shall
mutually agree upon a replacement Contact Person within ten (10)
days of said notice.
1.5 Extraordinary Expenses - expenses that are beyond those expenses
that are usual, regular, or customary in the conduct of in-house
activities in fulfillment of the scope of this agreement.
1.6 Equity - cash, securities or liquid assets, specifically excluding
real property.
1.7 Payment or Payable in Kind - distribution of the proceeds of a
transaction in the same type and form as was given as valuable
consideration for the transaction.
2. CONTACT PERSONS.
The Contact Person for Contractor is:
Xx. Xxxxx Xxxxxx
Tel: 000-(0) 000-0000; Fax: 000-(0) 000-0000
The Contact Person for Xxxxxxx Xxxxxxx is:
Xx. Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000; Fax: (000) 000-0000
3. SERVICES TO BE RENDERED BY XXXXXXX XXXXXXX.
Services to be rendered by Xxxxxxx Xxxxxxx are one or more of the
following:
3.1 Advice and Counsel:
Xxxxxxx will provide advice and counsel regarding Contractor's
strategic business and financial plans, strategy and negotiations
with potential lenders and investors, merger and acquisition
candidates, joint ventures, corporate partners and others involving
financial and financially related transactions.
3.2 Introduction to the Securities Brokerage Community: Xxxxxxx Xxxxxxx
has a close association with a number of broker/dealers, venture
capitalists, investment bankers and other investment professionals
across the country. Xxxxxxx Xxxxxxx will arrange and facilitate
contact between said individuals and Contractor and/or Contractor
Clients to facilitate business transactions among and between
themselves. Xxxxxxx Xxxxxxx shall use his contacts in the brokerage
and investment communities to assist Contractor in establishing
relationships with securities dealers and to provide the most recent
corporate information to interested securities dealers on a regular
and continuous basis. Xxxxxxx Xxxxxxx understands that this is in
keeping with Contractor's business objective to establish a
nationwide network of securities dealers who have an interest in
Contractor and/or Contractor Clients.
3.3 Market(s) and Market Making/Market Maker Intelligence: Xxxxxxx
Xxxxxxx is familiar with market-maker(s) in numerous districts and
has immediate access through market-maker(s) facilities and related
personnel to market sensitive information, including news releases,
corporate announcements, market trends, beta coefficients and filing
of (Form 211) 15c2-11. Xxxxxxx Xxxxxxx will continuously monitor and
react to this information (including but not limited to, information
on price, volume and the identification of market makers, buyers and
sellers, position concentrations, etc.) relaying it to Contractor in
a timely fashion with respect to securities in which Contractor has
an interest. Contractor understands that this information is
available from other sources but acknowledges that Xxxxxxx Xxxxxxx
can provide it in a more timely fashion and with substantial
value-added interpretation of such information. The foregoing
notwithstanding, no information will be provided to Contractor with
respect to the activities of any other Xxxxxxx Xxxxxxx customers or
customer accounts without such customer's prior consent.
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3.4 Contractor and/or Contractor Client Transaction Due Diligence:
Xxxxxxx Xxxxxxx will undertake due diligence on all proposed
financial transactions affecting the Contractor, including
investigation and advice on the financial, valuation and stock price
implications thereof and the viability of merger or acquisition
candidates, and research into the public records of same.
3.5 Market Capitalization Structure:
Xxxxxxx Xxxxxxx will use his experience in the marketplace and
general involvement with and knowledge of the investing and
investment related communities to assist contractor in formatting a
solid and proper Market Capitalization plan. Xxxxxxx Xxxxxxx intends
to use said knowledge to assist contractor in positioning itself in
a manner as to leverage their market capitalization.
3.6 Shareholder Organization Structure:
Xxxxxxx Xxxxxxx will use his experience in working with and
positioning publicly held and publicly traded companies in a manner
that balances the interests of the investing public against those of
the majority shareholder(s) in a fair and equitable manner.
3.7 Locating a Merger or Acquisition Subjects:
Xxxxxxx Xxxxxxx through his many contacts within and throughout the
investment community, during the course of ordinary business, from
time to time has come to be aware of entities that wish to merger,
acquire another entity, or be acquired by another entity. Xxxxxxx
Xxxxxxx will make a reasonable attempt to locate, if Contractor
desires, such a candidate for a potential merger/acquisition.
3.8 Additional Duties.
Contractor and Xxxxxxx Xxxxxxx may mutually agree upon additional
duties that Xxxxxxx Xxxxxxx may provide for compensation paid or
payable by Contractor under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be
attached hereto and made a part hereof as Exhibits beginning with
Exhibit A.
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3.9 Best Efforts.
Xxxxxxx Xxxxxxx shall devote such time and best efforts as may be
reasonably necessary to perform its services. Xxxxxxx Xxxxxxx is not
responsible for the performance of any services, which may be
rendered hereunder without the Contractor providing the necessary
information prior thereto. Xxxxxxx Xxxxxxx cannot guarantee results
on behalf of Contractor, but shall pursue all avenues available
through its network of financial contacts. At such time as an
interest is expressed in Contractor's needs, Xxxxxxx Xxxxxxx shall
notify Contractor and advise it as to the source of such interest
and any terms and conditions of such interest. The acceptance and
consummation of any transaction is subject to acceptance of the
terms and conditions by Contractor. It is understood that a portion
of the compensation to be paid hereunder is being paid by Contractor
to have Xxxxxxx Xxxxxxx remain available to assist it with
transactions on an as needed basis.
4. COMPENSATION TO PARTNERSHIP.
4.1 Initial Fee. Contractor shall pay Xxxxxxx Xxxxxxx an initial fee of
$10,000.00 U.S. as payment for Xxxxxxx Xxxxxxx'x activities, which
are necessary for Xxxxxxx Xxxxxxx to provide the services herein.
Payment shall be considered in arrears if not received by the tenth
(10th) business day following execution of this Agreement. This fee
shall be earned by Xxxxxxx Xxxxxxx upon execution of this Agreement
and no part of it shall be refundable to Contractor.
4.2 Additional Fee(s).
Contractor and Xxxxxxx Xxxxxxx have mutually agreed to issue in the
form of 250,000 shares non-restricted common stock at zero
cents($.00) per share, to be paid in fiscal year 2003.
4.3 Extraordinary Expenses.
Extraordinary expenses of Xxxxxxx Xxxxxxx shall be submitted to
Contractor for approval prior to expenditure and shall be paid by
Contractor, with fourteen (14) business days of receipt of Xxxxxxx
Xxxxxxx'x request for payment.
5. INDEMNIFICATION.
Each party shall hold the other party harmless from and against, and shall
indemnify the other party, for any liability, loss, and costs, expenses or
damages howsoever caused by reason of injury (whether to body, property,
personal or business character or reputation) sustained by any person or to any
person or property by reason of any act or neglect, default or omission of it or
any of its agents, employees, or other representative arising out of or in
relation to this Agreement. Nothing herein is intended to nor shall it relieve
either party from liability for its own act, omission or negligence. All
remedies provided by law or in equity shall be cumulative and not in the
alternative.
6. CONTRACTOR REPRESENTATIONS.
Contractor hereby represents, covenants and warrants to Xxxxxxx Xxxxxxx as
follows:
6.1 Authorization.
Contractor and its signatories herein have full power and authority
to enter into this Agreement and to carry out the transactions
contemplated hereby.
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6.2 No Violation.
Neither the execution and delivery of this Agreement, nor the
consummation of the transaction contemplated hereby will violate any
provision of the charter or by-laws of Contractor or, violate, or be
in conflict with, or constitute a default under, any agreement or
commitment to which Contractor is a party, or violate any state or
law or any judgment, decree, order, regulation or rule of any court
or governmental authority.
6.3 Agreement in Full Force and Effect.
All contracts, agreements, plans, leases, policies and license
referenced herein to which Contractor is a party are valid and in
full force and effect.
6.4 Litigation.
Except as set forth below, there is no action, suit, inquiry,
proceeding or investigation by or before any court or governmental
or other regulatory or administrative agency or commission pending
or, to the best knowledge of Contractor, threatened against or
involving Contractor, or which questions or challenges the validity
of this Agreement and its subject matter; and Contractor does not
know or have any reason to know of any valid basis for any such
action, proceeding or investigation.
6.5 Consents. No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transaction
contemplated hereby, including, without limitation, consents from
parties to loans, contracts, leases or other agreements and consents
from government agencies, whether federal, state or local.
6.6 Xxxxxxx Reliance.
Xxxxxxx Xxxxxxx has and will rely upon the documents, instruments
and written information furnished to Xxxxxxx Xxxxxxx by the
Contractor's officers, or designated employees; and
6.6.1 Contractor Material.
That all representations and statements provided about the
Contractor are true and complete and accurate. Contractor
agrees to indemnify, hold harmless, and defend Xxxxxxx
Xxxxxxx, its officers, directors, agents and employees, at
Contractor's expenses for any proceeding or suit which may
rise out of any inaccuracy or incompleteness of any such
material or written information supplied to Xxxxxxx Xxxxxxx;
and
6.6.2 Contractor Client and Other material.
That all representations and statements provided, other than
about the Contractor is, to be the best of its knowledge, true
and complete and accurate.
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7. SERVICES NOT EXPRESSED OR IMPLIED.
7.1 Contractor acknowledges that this Agreement is the complete and
total Agreement and reflects that understandings of the parties to
this Agreement, and that there are no verbal or other agreements or
understandings in which Contractor has an interest which was or were
made explicitly to impliedly with the understanding that Xxxxxxx
Xxxxxxx effects a market-maker in any specific securities that
Contractor or Contractor Clients has any type of interest in; and
7.2 That any payments made herein to Xxxxxxx Xxxxxxx are not, and shall
not be construed as compensation to Market Maker introduced by
Xxxxxxx Xxxxxxx for the purposes of making a market, to cover
Xxxxxxx Xxxxxxx'x or Broker/Dealer's out-of-pocket expenses for
making a market, or for the submission of a Form 211 application to
make a market in any securities; and
7.3 That no payments made herein to Xxxxxxx Xxxxxxx are for the purposes
of affecting the price of any security or influencing any market
making functions, including but not limited to, bid and ask
quotations, initiation and termination of quotations, retail
securities activities, or for the submission of any application to
make a market in a security.
8. CONFIDENTIALITY.
Xxxxxxx Xxxxxxx and Contractor each agree to provide reasonable security
measures to keep information confidential whose release may be detrimental
to the business to be conducted pursuant to this Agreement. Xxxxxxx
Xxxxxxx and Contractor shall each require their employees, agents,
affiliates, subcontractors, other licenses, and others who will properly
have access to the information through Xxxxxxx Xxxxxxx and Contractor
respectively, to first enter into appropriate non-disclosure agreements
requiring the confidentiality contemplated by this Agreement in
perpetuity.
9. MISCELLANEOUS PROVISIONS.
9.1 Amendment and Modification.
Subject to applicable law, this Agreement may be amended, modified
and supplemented by written agreement by Xxxxxxx Xxxxxxx and
Contractor or by their duly authorized respective officers. This
Agreement supercedes a prior agreement dated October 8, 2002 between
the parties.
9.2 Waiver of Performance.
Any failure of Xxxxxxx Xxxxxxx, on the one hand, or Contractor, on
the other, to comply with any obligation agreement or condition
herein may be expressly waived in writing, but such waiver or
failure to insist upon strict compliance with such obligation,
covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to any subsequent or other failure.
9.3 Expenses: Transfer, Taxes, etc.
Whether or not the transaction contemplated by this Agreement shall
be consummated, Xxxxxxx Xxxxxxx agrees that all fees and expenses
incurred by Xxxxxxx Xxxxxxx, in connection with the preparation and
execution of this Agreement, shall be borne by Xxxxxxx Xxxxxxx and
Contractor agrees that all fees and expenses incurred by Contractor
in connection with the preparation and execution of this Agreement
shall be borne by Contractor, including, without limitation, all
fees of counsel and accountants.
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9.4 Compliance with Regulatory Agencies.
Each party represents to the other party that all actions, direct or
indirect, taken by it and its respective agents, employees and
affiliates in connection with this Agreement and any financing or
underwriting hereunder shall conform to all applicable federal and
state securities laws.
9.5 Notices.
Any notices to be given hereunder by any party to the other may be
effected by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing
in the introductory paragraph of this Agreement, but any party may
change his address by written notice in accordance with this
subsection. Notices delivered personally shall be deemed
communicated as of three (3) days after mailing.
9.6 Assignment.
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interest or obligations hereunder
shall be assigned by any of the parties hereto without the prior
written consent of the other parties, except by operation of law.
9.7 Delegation.
Neither party shall delegate the performance of its duties under
this Agreement without the prior written consent of the other party.
9.8 Publicity.
Neither Xxxxxxx Xxxxxxx nor Contractor shall make or issue, or cause
to be made or issued, any announcement or written statement
unilaterally regarding this Agreement or the transactions
contemplated hereby or make any dissemination to the general public
without the prior consent of the other party. This provision shall
not apply, however, to any announcement or written statement
required to be made by law or the regulatiosn of any federal or
state governmental agency, except that the party required to make
such announcement shall, whenever practicable, consult with the to
the party concerning the timing and content of such announcement
before such announcement is made.
9.9 Governing Law.
This Agreement and the legal relations among the parties hereto
shall be governed by and construed in accordance with the laws of
the State of California, without regard to its conflict of law
doctrine. Contractor and Xxxxxxx Xxxxxxx agree that if action is
instituted to enforce or interpret any provision of this Agreement,
then jurisdiction and venue shall be Orange Country, California.
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9.10 Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but of
which together shall constitute one and the same instrument.
9.11 Headings.
The headings of the Sections of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect in
any way the meaning or interpretation of this Agreement.
9.12 Entire Agreement.
This Agreement, including any Exhibits hereto, and any other
documents and certificates delivered pursuant to the terms hereof,
set forth the entire agreement and understanding of the parties
hereto in respect to the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warrants, whether oral or
written, by any officer, employee or representations or any party
hereto.
9.13 Third Parties.
Except as specifically set forth or referred to herein, nothing
herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation other than parities
hereto and their successors or assigns, any rights or remedies under
or by reason of this Agreement.
9.14 Attorneys' Fee and Costs.
If any action is necessary to enforce and collect upon the terms of
this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs, in addition to any other relief to which
that party may be entitled. This provision shall be construed as
applicable to the entire Agreement.
9.15 Survivability.
If any part of this Agreement is found, or deemed by a court of
competent jurisdiction, to be invalid or unenforceable, that part
shall be severable form the remainder of this Agreement.
9.16 Further Assurances.
Each of the parties agrees that it shall, from time to time, take
such actions and execute such additional instruments as many be
reasonably necessary or convenient to implement and carry out the
intent and purpose of this Agreement.
9.17 Right to date After Termination.
After termination of this Agreement, each party shall be entitled to
copies of all information acquired hereunder as of the date of
termination and not previously furnished to it.
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9.18 Relationship of the Parties.
Nothing contained in the Agreement shall be deemed to constitute
either party the partner of the other, nor, except as otherwise
herein expressly provided, to constitute either party the agent or
legal representative of the other, nor to create any fiduciary
relationship between them. It is not the intention of the parties to
create, nor shall this Agreement be construed to create, any
commercial or other partnership. Neither party shall have any
authority to act for or to assume any obligation or responsibility
on behalf of the other party, except as otherwise expressly provided
for herein. The rights, duties, obligations, and liabilities of the
parties shall be several and not joint or collective. Each party
hereto shall be responsible only for its obligations as herein set
out and shall be liable only for its share of the costs and expenses
as provided herein. Each party shall indemnify, defend and hold
harmless the other party, its directors, officers, and employees
from and against any and all losses, claims, damages and liabilities
arising out of any act or any assumption of liability by the
indemnifying party, or any of its directors, officers or employees,
done or undertaken, or apparently done or undertaken, on behalf of
the other party, except pursuant to the authority expressly granted
herein or otherwise agreed to in writing between the parties. Each
party shall be responsible for the acts of its agents and
affiliates.
10. END OF AGREEMENT AND TERMINATION.
This Agreement shall be effective upon execution, and shall continue for
one (1) year unless terminated sooner, by either party, upon giving to the
other party thirty (30) days written notice, after which time this
Agreement is terminated. Xxxxxxx Xxxxxxx shall be entitled to any finder's
fees for funding or underwriting commitments entered into within one (1)
year after the termination of this Agreement, if said funding or
underwriting was the result of Xxxxxxx Xxxxxxx'x efforts prior to the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and effective as of the day and year first above written.
CONTRACTOR
BY:
/S/ XXXXX XXXXXX /S/ XXXX XXXXXXXXX /S/ XXXXXXX XXXXXXX
--------------------------------------- -------------------------------
Xxxxx Xxxxxx & Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx
Dated: October 9, 2003 Dated: October 9, 2003
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EXHIBIT A
As stated in Investment Banking Agreement, Item 3.9 indicates that any
additional agreement(s) between Contractor and Xxxxxxx Xxxxxxx may, although
there is no requirement to do so, be attached to such agreement and be
considered an addendum.
Contractor and Xxxxxxx Xxxxxxx agree to enter into an agreement to not (through
any entity, individual, institution, or otherwise) sell, any of the free trading
common shares that are issued to Xxxxxxx Xxxxxxx for the first ninety (90) days;
however, may liquidate such shares on an offer basis without selling to the best
national bid price.
Contractor agrees to have two hundred and fifty thousand (250,000) shares issued
in the form of S8 or otherwise as compensation for services rendered and
satisfied pursuant to the terms of the executed Investment banking Agreement. It
is agreed that these shares will be issued only after a clearance for trade is
received following to the approval of the 211 form by the NASD.
Contractor agrees to deliver then thousand ($10,000.00) dollars U.S. to Xxxxxxx
Xxxxxxx to be duly executed and effective as of October 9, 2003.
Contractor
/s/ Xxxxx Xxxxxx /s/ Xxxx Xxxxxxxx
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By: Xxxxx Xxxxxx & Xxxx Xxxxxxxx Dated: October 9, 2003
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx Dated: October 9, 2003
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