CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT entered into this 21st day of May,
2001 (hereinafter "Effective Date") by and between Global Foods Online
Inc., a Nevada corporation with its principal office at 000 Xxxxx Xxxxx
Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx (the "Company"), and Yorkville
Advisors Management, LLC, a Delaware limited liability company, with its
principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the
"Consultant").
Company desires to retain the services of Consultant as an independent
contractor to provide certain consulting and advisory services
designated below, and Consultant desires to accept such engagement by
Company, pursuant to the terms and conditions of this Consulting
Agreement.
In consideration of the representations, warranties, mutual covenants
and agreements set forth herein, the parties agree as follows:
SCOPE OF SERVICES.
Duties and Performance. From time to time during the term of this
Agreement, Consultant shall provide such advisory services relating to
the Company's financial status and capital structure (the "Services") to
Company as Consultant and Company shall agree. In connection with the
Services, Consultant may develop and communicate to Company certain
business opportunities with entities ("Persons") known to Consultant;
the Services may include various types of arrangements, including direct
investment into Company.
Independent Contractor Status. The parties agree that Consultant is an
independent contractor performing Services hereunder and not an employee
of Company. Consultant may use contractors or other third parties of
Consultant's choice to assist Consultant in rendering such Services.
Unless otherwise agreed by Company in writing, Consultant shall be
responsible for payment of all compensation or expenses payable or
reimbursable to such third parties. Nothing herein or in the
performance hereof shall imply either a joint venture or principal and
agent relationship between the parties, nor shall either such
relationship be deemed to have arisen under this Agreement.
COMPENSATION AND EXPENSES.
Finders Fee; Not a Broker.
In respect of any capital investment in, or debt financing to,
Company which is made recommended or advised upon by Consultant either
during the term of this Agreement or within one year from the
termination or expiration of this Agreement by an entity which was
introduced directly or indirectly by Consultant prior to a termination
of the term of this Agreement, Company shall pay to Consultant a fee in
an amount equal to eight and 2/5 percent (8.4 %) of the amount, or to
any person designated by Consultant, invested or loaned to Company. If
the amount invested in or loaned to the Company is so invested or loaned
in installments or a Line of Credit financing, then the fee stated in
the preceding sentence shall be paid on each such installment. Company
acknowledges that Consultant is not a registered as a broker-dealer
under the Securities Exchange Act of 1934, as amended, and, accordingly,
Consultant will not (i) engage in any effort to sell any securities of
Company, (ii) engage in the negotiation of any proposed transaction;
(iii) provide advice as to the value of the Company or of potential
acquisition targets, or any of its or their securities, or (iv) make any
recommendations as to the acquisition of a potential acquisition target
or the purchase or sale of any particular securities. Payment to
Consultant in respect to any Section 2.c fee shall be made at the
closing of each such transaction, and shall be an express condition to
the closing of any such transaction. This Section 2.c shall survive any
termination of this Agreement.
In the event of a Line of Credit Financing , the Company shall issue to
the Consultant upon the execution of the Line of Credit Agreement four
hundred thousand (400,000) shares of Common Stock of the Company (the
"Consultant's Common Stock") with demand and "piggy back" registration
rights. The Consultant's Common Stock shall be issued to the
individuals and in the amounts set forth on Schedule A attached hereto.
Audit of Books and Records. Company shall maintain all books and
records necessary to account for all transactions involving Commissions
and other fees which may be payable hereunder. Consultant and
Consultant's professional advisors may audit, review or examine such
books and records at any time during business hours upon twenty-four
hours prior notice but not more than once each calendar quarter. If any
payments received by Company which Consultant was not properly
compensated for by receiving the appropriate payment, Company shall be
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responsible for fully reimbursing Consultant for the cost of such
review, audit or examination and, furthermore, shall pay any amount
found to be payable to Consultant but then unpaid, within three (3) days
plus interest at the rate of ten percent (10%) per annum from the date
on which payment should have been made to Consultant.
Expense Reimbursement. While this Agreement is in effect, Company shall
pay for or reimburse Consultant for all reasonable and itemized business
expenses incurred by Consultant directly related to the services to be
performed by Consultant under this Agreement. Consultant shall keep
accurate and detailed records of such expenses and submit expense
reports along with relevant documentation in accordance with the expense
reimbursement policy of Company. Company shall pay or reimburse
Consultant for all reasonable out-of-pocket expenses actually incurred
or paid by Consultant in the course of performing services as required
hereunder; provided, that any individual expense in excess of five
hundred dollars ($500.00) shall have been approved in advance by
Company.
Non-Circumvention. Company represents and warrants that Company shall
take no action which shall result in Company and any third-party
introduced to Company, directly or indirectly, by Consultant
consummating a relationship or transaction with Company without the
participation and compensation of Consultant.
INDEMNIFICATION. Exhibit A attached hereto and made a part hereof sets
forth the understanding of the parties with respect to the
indemnification and exculpation of Consultant. The provisions of
Exhibit A shall survive, and remain in full force and effect after, the
termination of this Agreement until fully performed.
TERM AND TERMINATION. The initial term of this Agreement shall be for
a period commencing on the Effective Date hereof and ending on the one
anniversary of the date of this Agreement; thereafter, unless previously
terminated, and neither party has given notice of termination, this
Agreement shall be automatically renewed for successive year periods of
one year each. Either party may terminate this Agreement without cause
or without the necessity of specifying cause by giving written notice of
termination to the other party. This Agreement shall terminate upon its
expiration or upon receipt of this notice of termination by the non-
terminating party. Upon termination or expiration of this Agreement,
Company shall pay to Consultant all amounts due through the date of
termination within 30 days of said date. Notwithstanding the
termination of this Agreement, in addition to those subsection of
Section 2 which survive the termination of this Agreement, Sections 3
and 5 shall continue in force and effect and shall survive such
termination.
MISCELLANEOUS.
Notice. All notices and other communications hereunder shall be in
writing and delivered by Federal Express or any other generally
recognized overnight delivery service, or by hand, to the appropriate
party at the address stated in the initial paragraph of this Agreement
for such party or to such other address as a party indicates in a notice
to the other party delivered in accordance with this Section.
Severability. Should one or more provisions of this Agreement be held
unenforceable, for whatever cause, the validity of the remainder of this
Agreement shall remain unaffected. The parties shall, in such event,
attempt in good faith to agree on new provisions which best correspond
to the object of this Agreement.
Entire Agreement. The parties have entered into the present Agreement
after negotiations and discussions, an examination of its text, and an
opportunity to consult counsel. This Agreement constitutes the entire
understanding between the parties regarding to specific subject matter
covered herein. This Agreement supersedes any and all prior written or
oral contracts or understandings between the parties hereto and neither
party shall be bound by any statements or representations made by either
party not embodied in this Agreement. No provisions herein contained
shall be waived, modified or altered, except by an instrument in
writing, duly executed by the parties hereto.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect
to any choice of law of conflict of law provision or rule whether such
provision or rule is that of New York or any other jurisdiction. Each
party irrevocably consents to the exclusive personal jurisdiction of New
York State courts situated in the county in which Consultant is located
in New York, or the United States District Court, or the Southern
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District of New York, in connection with any action, suit or proceeding
relating to or arising out of this Agreement or any of the transactions
or relationships contemplated hereby. Each party, to the maximum extent
permitted by law, hereby waives any objection that such party may now
have or hereafter have to the jurisdiction of such courts on the basis
of inconvenient forum or otherwise. Each party waives trial by jury in
any proceeding that may arise with respect to this Agreement.
No Implied Waivers. No delay or omission by either party to exercise
its rights and remedies in connection with the breach or default of the
other shall operate as or be construed as a waiver of such rights or
remedies as to any subsequent breach.
Counterparts. This Agreement may be executed in any number of
counterparts, but all counterparts hereof shall together constitute but
one agreement. In proving this Agreement, it shall not be necessary to
produce or account for more than one counterpart signed by both of the
parties.
Binding Nature. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the respective parties to
this Agreement.
Assignment. Except as set forth in this Agreement, neither party will
have the right to assign, pledge or transfer all or any part of this
Agreement without the prior written consent of the other, and any such
purported assignment, pledge or transfer by a party without such prior
written consent shall be void.
Capacity. Company represents to Consultant that each person signing
this Agreement on its behalf has the full right and authority to do so,
and to perform its obligations under this Agreement.
Captions. The captions appearing in this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
YORKVILLE ADVISORS MANAGEMENT, LLC GLOBAL FOODS ONLINE INC.
By: /s/Xxxx X. Xxxxxx By: /s/Xxxx Xxxxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxx Xxxxxxxx
Title: Fund Manager Title: President
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
EXHIBIT A
The Company will indemnify and hold harmless the Consultant and its
affiliates and their respective directors, members, officers, agents and
employees and each other person controlling the Consultant or any of its
affiliates (collectively, "losses") (i) related to or arising out of (A)
oral or written information provided by the Company, the Company's
employees or other agents, which information either the Consultant or
the Company provides to any actual or potential buyers, sellers,
investors or offerees, or (B) any other action or failure to act by the
Consultant, its members, officers, agents or employees or by the
Consultant or any other indemnified party at the Company's request or
with the Company's consent, or otherwise related to or arising out of
the consulting services provided or to be provided by the Consultant
under this Agreement (the "Engagement") or any transaction or conduct in
connection therewith, except that this clause (ii) shall not apply with
respect to any losses that are finally judicially determined to have
resulted primarily from the gross negligence or willful misconduct of
such indemnified party.
If the foregoing indemnity is unavailable to any indemnified party for
any reason, the Company will contribute to any losses related to or
arising out of the engagement or any transaction or conduct in
connection therewith as follows. With respect to such losses referred
to in clause (i) of the preceding paragraph, each of the Company and the
Consultant shall contribute in such proportion as is appropriate to
reflect the relative benefits received (or anticipated to be received)
by the Consultant on the one hand, and by the Company and its
securityholders, on the other hand, from the actual or proposed
transaction arising in connection with the Engagement. With respect to
any other losses, and for losses referred to in clause (i) of the
preceding paragraph if the allocation provided by the immediately
preceding sentence is unavailable for any reason, each of the Company
and the Consultant shall contribute in such proportion as is appropriate
to reflect not only the relative benefits as set forth above, but also
the relative fault of each the Company and the Consultant in connection
with the actions, omissions or other conduct that resulted in such
losses, as well as any other relevant equitable considerations.
Benefits received (or anticipated to be received) by the Company and its
securityholders shall be deemed to be equal to the aggregate cash
consideration and value of securities or any other property payable,
issuable, exchangeable or transferable in such transaction or proposed
transaction, and benefits received by the Consultant shall be deemed to
be equal to the compensation paid by the Company to the Consultant in
connection with the Engagement (exclusive of amounts paid for
reimbursement of expenses or paid under this Agreement). Relative fault
shall be determined by reference to, among other things, whether any
alleged untrue statement of omission or any other alleged conduct
relates to information provided by the Company or other conduct by the
Company (or the Company's employees or other agents), on the one hand,
or by the Consultant, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to above.
Notwithstanding anything to the contrary above, in no event shall the
Consultant be responsible for any amounts in excess of the amount of the
compensation actually paid by the Company to the Consultant in
connection with the Engagement (exclusive of amounts paid for
reimbursement of expenses or paid under this Agreement).
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The Company agrees that it will not, without prior written consent of
the Consultant, settle any pending or threatened claim or proceeding
related to or arising out of the Engagement or any actual or proposed
transactions or other conduct in connection therewith (whether or not
the Consultant or any indemnified party is a party to such claim or
proceeding) unless such settlement includes a provision unconditionally
releasing the Consultant and each other indemnified party from, and
holding all such persons harmless against, all liability in respect of
claims by any releasing party related to or arising out of the
engagement or any transactions or conduct in connection therewith. The
Company will also promptly reimburse each indemnified party for all
expenses (including counsel fees and expenses) as they are incurred by
such indemnified party in connection with investigating, preparing for,
defending, or providing evidence in, any pending or threatened claim or
proceeding related to or arising out of the engagement or any actual or
proposed transaction or other conduct in connection therewith or
otherwise in respect of which indemnification or contribution may be
sought hereunder (whether or not the Consultant or any other indemnified
party is a party to such claim or proceeding) or in enforcing this
agreement.
The Company further agrees that no indemnified party shall have any
liability (whether direct or indirect, in contract or tort or otherwise)
to the Company or any of the Company's affiliates, creditors or security
holders for or in connection with the engagement or any actual or
proposed transactions or other conduct in connection therewith except
for losses incurred by the Company that are finally judicially
determined to have resulted primarily from the gross negligence or
willful misconduct of such indemnified party.
The provisions set forth above shall remain in full force and effect and
shall survive the completion or termination of the Engagement.
SCHEDULE A
COMMON STOCK HOLDERS
Yorkville Advisors Management
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
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