ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (the "Agreement") is made this 24th day of July, 2000 by
and between Xxxxxxxxx Xxxxx & Associates, Inc., a Florida Corporation
("Advisor") and The Xxxxxxx Group Career Satisfaction Corporation., a Utah
corporation with its offices located at 0000 X. Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx,
XX 00000. ("Company.")
WHEREAS, Advisor and Advisor's Personnel (as defined below) have experience in
evaluating and effecting mergers and acquisitions, advising corporate
management, and in performing general administrative duties for publicly-held
companies and development stage investment ventures; and
WHEREAS, the Company desires to retain Advisor to advise and assist the Company
in its development 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 Company and Advisor
agree as follows:
1. Engagement
The Company hereby retains Advisor, effective as of the date hereof (the
"Effective Date") and continuing until termination, as provided herein, to
assist the Company in its effecting the purchase of businesses and assets
relative to its business and growth strategy, general business and financial
issues consulting, the introduction of the Company to public relations firms and
consultants and others that may assist the Company in its marketing plans and
future development (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"); provided,
however, that the Services shall expressly exclude all legal advice, accounting
services or other services which require licenses or certification which Advisor
may not have and such services will not include assisting the Company in
procuring funding or in connection with any financing or capital raising
transaction by the Company
2. Term
This Agreement shall have an initial term of three (3) months (the "Primary
Term"), commencing with the Effective Date. At the conclusion of the Primary
Term this Agreement will automatically be extended for the same term (the
"Extension Period") unless Advisor or the Company shall serve written notice on
the other party terminating the Agreement. Any notice to terminate given
hereunder shall be in writing and shall be delivered at least thirty (30) days
prior to the end of the Primary Term or any subsequent Extension Period.
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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 Company 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 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 Company as a result of advice
provided by Advisor or Advisor's Personnel.
4. Compensation
The Company agrees to pay Advisor a fee for the Services ("Advisory Fee") by way
of the delivery by the company of 373,000 shares of the Company's common stock
as an initial fee, these shares shall be delivered within seven (7) days after
the execution hereof. All shares transferred are considered fully earned and
non-assessable as of the date hereof. The Company agrees to file a registration
statement on Form S-8 in connection with the issuance of such shares provided
the requirements of such form can be satisfied and the Company is eligible to
use the Form. If the consultant fails to perform the services or this agreement
is terminated before the end of the term then a pro-rata number of shares will
be surrendered for cancellation by Advisor.
5. Other Services
If the Company enters into a merger or exchanges securities with, or purchases
the assets or enters into a joint venture with, or makes an investment in a
company introduced by Advisor (a "Business Opportunity"), the Company agrees to
pay Advisor a fee equal to ten percent (10%) of the consideration paid by the
Company in connection with each Business Opportunity introduced by Advisor and
acquired or otherwise participated in by the Company (collectively referred to
herein, in each instance, as the ("Transaction Fee"), which shall be payable
immediately following the closing of each such transaction, in restricted shares
of the Company's common stock or in kind, at the Company's option. If paid in
cash the Transaction Fee shall be reduced to five percent (5%) of the value of
the consideration given by the Company in connection with such transaction.
6. Registration of Shares
Company agrees that any shares issued to satisfy a Transaction Fee may be
registered by the Company with the Securities and Exchange Commission under any
subsequent applicable registration statement filed by the Company at the
Company's discretion. Such issuance or reservation of shares shall be in
reliance on representations and warranties of Advisor.
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7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Advisor in the
performance of the Services or for the settlement of debts shall be paid by the
Company, or Advisor shall be reimbursed if paid by Advisor on behalf of the
Company, within ten (10) days of receipt of written notice by Consultant,
provided that the Company must approve in advance all such expenses.
8. Place of Services
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 Company.
9. 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 Company. Neither
Advisor nor Advisor's Personnel are authorized to enter into any agreements on
behalf of the Company. The Company expressly retains the right to approve, in
its sole discretion, each Business Opportunity introduced by Advisor, and to
make all final decisions with respect to effecting a transaction or any Business
Opportunity.
10. Rejected Business Opportunity
If, during the Primary Term of this Agreement or any Extension Period, the
Company elects not to proceed to acquire, participate or invest in any Business
Opportunity identified and/or introduced by Advisor, notwithstanding the time
and expense the Company may have incurred reviewing such transaction, such
Business Opportunity shall revert back to and become proprietary to Advisor, and
Advisor shall be entitled to acquire or broker the sale or investment in such
rejected Business Opportunity for its own account, or submit such assets or
Business Opportunity elsewhere. In such event, Advisor shall be entitled to any
and all profits or fees resulting from Advisor's purchase, referral or placement
of any such rejected Business Opportunity, or the Company's subsequent purchase
or financing with such Business Opportunity in circumvention of Advisor.
11. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship of
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principal and agent between the Company and Advisor, or employee and employer as
between Advisor's Personnel and the Company.
12. Termination
The Company 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 Company.
(i) If during the Primary Term of this Agreement or any Extension Period,
Advisor is unable or fails 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,
(iii) At Company's option without cause upon 30 days written notice to Advisor;
or
(B) By Advisor.
(i) If the Company breaches this Agreement or fails to make any payments or
provide information required hereunder; or,
(ii) If the Company ceases business or 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
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 Company 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, including but not limited to
the obligation to pay the Transaction fee or the Advisory Fee; or,
(iv) If the Company subsequent to the execution hereof institutes, makes a
general assignment for the benefit of creditors, has instituted against it any
bankruptcy proceeding for reorganization for 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 Company to
Consultant are determined to be materially false or misleading.
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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 Company for the reasons set forth in A(i)
and (ii) above, the Company shall only be responsible to pay Advisor for
un-reimbursed expenses, Advisory Fee and Transaction Fee earned and accrued up
to and including approved, the effective date of termination. If this Agreement
is terminated by the Company 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 approved reimbursable expenses, Transaction Fee, if any, and
for the remainder of the un-expired portion of the applicable term (Primary Term
or Extension Period) of the Agreement.
13. Indemnification
Subject to the provisions herein, the Company 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.
14. Miscellaneous
(A) Subsequent Events. Advisor and the Company 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.
(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.
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(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 prepared, provided that the
communication is addressed:
(i) In the case of the Company:
Telephone: (000) 000-0000
Tele-fax: (000) 000-0000
Attention: XX Xxxxxx, President
(ii) In the case of Advisor:
Telephone: (000) 000-0000
Tele fax: (000) 000-0000
Attention: Xxxxxx X. Love, President
or to such other person or address designated in writing by the Company or
Advisor to receive notice.
(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.
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(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.
"Company" "Advisor"
The Xxxxxxx Group Career
Satisfaction Corporation
/s/ XX Xxxxxx /s/ Xxxxxx X. Love
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Signature Signature
XX Xxxxxx Xxxxxx X. Love
CEO CEO & President
7-27-00 7-27-00
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Date Date
