INVESTMENT BANKING
CONSULTING AGREEMENT
Agreement made as of October 5 2004, by and between The Vantage Group Ltd.
("Vantage"), whose primary address is 00 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000 and Xxxxxx Financial Corporation ("Company"), whose primary address is 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxxxxx Xxxx, XX 00000.
WITNESSETH
WHEREAS, the Company requires expertise in the area of investment banking to
support its' business and growth; and
WHEREAS, Vantage has substantial contacts among the members of the investment
community, investment banking expertise, and desires to act as a consultant to
provide investment banking and 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 Party - Either of the two sides engaged by this Agreement.
1.2 Affiliate - Any persons or entities controlled by either party.
1.3 Contact Person - The person who shall be primarily responsible for carrying
out the duties of the parties hereunder. Vantage and the Company shall each
appoint a Contact Person to be responsible for their respective duties. In the
event that one Party gives 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.
1.4 Extraordinary Expenses - Expenses that are beyond those that are usual,
regular customary in the conduct of in-house activities in fulfillment of the
scope of this Agreement.
1.5 Equity - Cash, securities or liquid assets, specifically excluding real
property.
1.6 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 Person. The Contact Person for Vantage is Xxxx Xxxxxx.
The Contact Person for the Company is Xxxxxxxx Xxxxx.
3. Services to be rendered by Vantage:
3.1 Advice and Counsel - Vantage will provide advice and counsel regarding the
Company's strategic business and financial plans, strategy and negotiations with
potential lenders, investors, merger and acquisition candidates, joint ventures,
corporate partners and others involving financial and financially related
transactions.
3.2 Introductions to Securities Brokerage Community - Vantage is an Investment
Banking firm and maintains relationships with registered Broker/Dealers and will
enable contact between the Company and such professionals to facilitate
transactions among them. Vantage will use its' business contacts in the
brokerage community to assist the Company in establishing relationships with
securities dealers on a regular and continuous basis. Vantage understands that
this is in keeping with the Company's business objective to establish a
nationwide network of securities dealers who have an interest in the Company.
3.3 Market-Making Intelligence - Vantage will monitor and react to sensitive
market information on a timely basis and provide advice, counsel and proprietary
intelligence (including but not limited to information on price, volume and
identification of market makers) to the Company with respect to securities in
which the Company has an interest. The Company acknowledges that this
information is readily available from other sources but believes Vantage can
provide it in a more timely manner and with substantial value-added
interpretation of such information. The foregoing notwithstanding, no
information will be provided to the Company with the respect to the activities
of any other of Vantage's customers or customer accounts without such customers'
prior consent.
3.4 Due Diligence - Vantage will undertake due diligence on all proposed
financial, valuation and stock price implications thereof.
3.5 Additional Duties - Vantage and the Company shall mutually agree upon any
additional duties which Vantage may provide for compensation paid or payable by
the Company 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.
3.6 Best Efforts - Vantage will devote such time and best efforts as may be
reasonably necessary to perform its' services. Vantage is not responsible for
the performance of any services, which may be rendered hereunder without the
Company providing the necessary information prior thereto. Vantage cannot
guarantee results on behalf of the Company, but shall pursue all avenues
available through its' network of financial contacts. At such time as an
interest is expressed in the Company's needs, Vantage shall notify the Company
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 of the Company. It is understood that a
portion of the compensation to be paid hereunder is being paid by the Company to
have Vantage remain available to assist the Company with transactions on an as
needed basis. 4. Compensation to Vantage
4.1 Consulting Fee - For the services and duties to be rendered and performed by
Vantage during the Engagement Period and in consideration of Vantage having
entered into this agreement, the Company agrees as follows:
(a) Upon execution of this agreement, the Company shall issue to Vantage 300,000
unrestricted shares of Common Stock of the Company (the "Consulting Stock") ;
and
(b) The Company shall issue to Vantage, 90 days after the execution of this
agreement 150,000 unrestricted shares of Common Stock of the Company (the
"Consulting Stock") ; and
(c) The Company shall issue to Vantage, 180 days after the execution of this
agreement 150,000 unrestricted shares of Common Stock of the Company (the
"Consulting Stock") ; and
(d) The Company shall issue to Vantage, 270 days after the execution of this
agreement 150,000 unrestricted shares of Common Stock of the Company (the
"Consulting Stock") ; and
(e) The Company shall issue to Vantage, 360 days after the execution of this
agreement 150,000 unrestricted shares of Common Stock of the Company (the
"Consulting Stock), and
(f) The Company shall issue to Vantage, 450 days after the execution of this
agreement 100,000 unrestricted shares of Common Stock of the Company (the
"Consulting Stock).
4.2 Extraordinary Expenses - Extraordinary expense of Vantage shall be submitted
to the Company, and must be approved by the Company, prior to expenditure and
shall be paid by the Company, within ten (10) business days of receipt of
Vantage's 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 property by reason of any act of neglect, default or
omission of it or any of its' agents, employees or other representatives 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.
6. Company Representations - The Company hereby represents, covenants and
warrants to Vantage as follows:
6.1 Authorization - The Company and its signatories herein have full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
6.2 No Violation - Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provisions
of the charters or by-laws of the Company or, violate, or be in conflict with,
or constitute a default under, any agreement or commitment to which the Company
is a party, or violate any statute or law or any judgement, decree, regulation
or rule of any court or governmental authority.
6.3 Agreement in Full Force and Effect - All contracts, agreements, plans,
leases, policies and licenses referred herein to which the Company 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 the Company, threatened against or involving the Company, or which
questions or challenges the validity of this Agreement and its subject matter
and the Company 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 transactions contemplated hereby,
including, without limitation, consents from the Party's to loans, contracts,
leases or other agreements or consents from governmental agencies, whether
federal, state or local. 6.6 Vantage's Reliance - Vantage has and will rely upon
the documents, instruments and written information furnished to Vantage by the
Company's officers, directors or designated employees. The Company represents
that all statements and representations provided by the Company are true,
complete and accurate. The Company agrees to indemnify, hold harmless and defend
Vantage, its officers, directors, agents and employees, at the Company's expense
for any proceeding or suit which may arise out of any inaccuracy or
incompleteness of any such material or written information supplied by the
Company.
6.7 SERVICES NOT EXPRESSED OR IMPLIED
6.7.1 Vantage has not agreed with the Company, in this Agreement or any other
agreement, verbal or written, to guarantee market makers in any specific
security or securities that the Company has an interest.
6.7.2 That any payments made herein are in no way related to or conditional upon
Vantage participating in any capital raising activities.
6.7.3 That no payments made herein to Vantage are for the purpose of affecting
the price of any security or influencing any market making functions, including,
but not limited to, bid/ask quotations, retail securities activities or for the
submission of any application to make a market.
7. Confidentiality - Vantage and the Company each agree to provide reasonable
security measures to keep information confidential whose release may be
detrimental to the business. Vantage and the Company shall require their
employees, agents, affiliates, subcontractors, other licensees and others who
will properly have access to the information to first enter into non-disclosure
agreements requiring the confidentiality contemplated by this Agreement in
perpetuity.
8. Miscellaneous Provisions:
8.1 Amendment and Modification - Subject to applicable law, this Agreement may
be amended, modified and supplemented by written agreement of both Parties or by
their duly authorized respective officers.
8.2 Waiver of Compliance - Any failure of Vantage, on the one hand, or the
Company, on the other, to comply with any other obligation, agreement or
condition herein may be expressly waived in writing, but such waiver of 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.
8.3 Expenses - Whether or not the transactions contemplated by this Agreement
shall be consummated, both parties agree that all fees and expenses incurred in
connection with this Agreement shall be borne by the appropriate party who
incurred said expenses, including without limitation all fees of counsel,
accountants and regulatory agencies.
8.4 Other Business Opportunities - Except as provided in this Agreement, each
party shall have the right independently to engage in and receive full benefits
from business activities. In the case of business activities which would be
competitive with the other Party, notice shall be given prior to this Agreement
or, if such activities are proposed, within ten (10) days prior to engagement
therein. The doctrines of "corporate opportunity" or "business opportunity"
shall not be applied to any other activity, venture or operation of either
party.
8.5 Compliance with Regulatory Agencies - Each party represents and warrants 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
shall conform to all applicable Federal and state Securities Laws.
8.6 Notices - Any notices to be given hereunder by any Party to the other may be
effected by personal delivery in writing or by registered mail. Mailed notices
shall be addressed to the Parties at the address appearing at the close of this
Agreement, but any party may change their address by written notice in
accordance with this subsection. Notices delivered personally shall be deemed
communicated as of factual receipt; mailed notices shall be deemed communicated
as of three (3) days after mailing.
8.7 Assignment - This Agreement and all of its 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, interests or obligations hereunder shall be assigned by any of the
Parties hereto without the prior written consent of the other Party, except by
operation of law.
8.8 Delegation - Neither Party shall delegate the performance of its duties
under this Agreement without the prior written consent of either Party.
8.9 Publicity - Neither Vantage or the Company shall make issue, or caused to be
made or issued, any announcement or written statement concerning this Agreement
or the transactions contemplated hereby for dissemination to the general public
without the prior written consent of the other Party. This provision shall not
apply, however, to any announcement or written statement required by law or any
regulations of any federal or state governmental agency, except that the Party
required to make such announcement shall, whenever practicable, consult with the
other Party concerning the timing and consent of such announcement before such
announcement is made.
8.10 Governing Law- This Agreement and the legal relation among the Parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflict of law doctrine. Both parties
agree that if action is instituted to enforce or interpret any provision of this
Agreement then jurisdiction and venue shall be in New York, New York.
8.11 Counterpoints - 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.
8.12 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.
8.13 Entire Agreement - This Agreement, including any Exhibits hereto, and the
other documents and certificates delivered pursuant to the terms hereof, set
forth the entire agreement and understanding of the Parties hereto in respect of
the subject matter contained herein, and supersedes all primary agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any Party hereto.
8.14 Third Parties - Except as specifically set forth and 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 the Parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
8.15 Attorney's Fees 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 attorney's 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.
8.16 Survivability - If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid and unenforceable, that part
shall be severable from the remainder of this Agreement.
8.17 Further Assurances - Each of the Parties agrees that it shall from time to
time take such actions and execute such additional instruments as may be
reasonably necessary or convenient to implement and carry out the intent and
purpose of this Agreement.
8.18 Right to Data 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. 8.19 Relationship of
the Parties - Nothing contained in this 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 assume any obligations or responsibility on behalf of
the other Party, except as otherwise expressly provided herein. The rights,
duties, obligations and liabilities of the Parties shall be severed 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 expense provided herein. Each party shall indemnify, defend and hold
harmless the other Party, its officers directors or 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 officers,
directors 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 in writing between the Parties. Each Party shall be
responsible for the acts of its agents and affiliates.
9. Term of Agreement and Termination - This Agreement shall be effective upon
execution, and shall continue for 18 months unless terminated sooner, by either
Party, upon giving to the Party ten (10) days written notice. Upon the
termination of this Agreement, no future compensation that would be due if the
Agreement was not terminated as enumerated in Section 4.1 will be due and owing.
IN WITNESS WHEREOF
THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE DULY EXECUTED, AS OF THE 5TH
DAY OF OCTOBER, 2004.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxxx Xxxxx
------------------------- ----------------------------
Xxxx Xxxxxx Xxxxxxxx Xxxxx
The Vantage Group Ltd. Xxxxxx Financial Corporation
