ADVISORY SERVICE AGREEMENT
THIS ADVISORY SERVICE AGREEMENT (the "Agreement'!) is made this i t 7 25th
day of February 2001 by and between Super Boat International Productions, Inc. a
Florida Corporation (the "Company") and, Performance Management "p, Inc., a a i
Florida Corporation (the "Advisor").
WHEREAS, Advisor and Advisor's personnel have experience in dvising
corporate management, strategic planning, corporate development, financial
accounting and forecasting, marketing, structuring investor relations programs,
contract negotiations contract and performing general administrative duties for
publicly-held companies aid developing state 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 herein.
NOW THEREFORE, in consideration of the mutual promises and conditions set r
forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1.Engagement. The Company hereby engages Advisor as of the date hereof and
continuing until the termination as provided herein to provide or assist the
Company with the following: review of existing financial reporting system; and
provide a fully automated accounting system which will grow with the Company;
attend e-commerce and
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other industry conferences and advise the Company on trends and strategies for
the industry; provide a fully-developed e-commerce website for the Company-,!',
negotiate or assist in the negotiation of source, distribution and marketing
agreements; evaluate prospective sponsorships; negotiate and evaluate potential
acquisitions; structure and negotiate financing with investors secured by the
Company; assist in the preparation and completion of all Securities and Exchange
Commission ("SEC") filings, including annual and quarterly reports, registration
statements and any other SEC filings; assist in the preparation and completion
of all press release and investor relations communications assist in the
preparation and completion of a business plan and marketing Strategy; negotiate
and structure asset acquisitions relative to the Company's growth; provide
strategic planning and long term financial models for the growth of the Company;
consult wit the Company on general business and financial issues; design and
arrange public and investor relations agreements fox the Company, and oversee
the financial operations of the Company during its development stage
(collectively the "Services"). All Services to be completed hereunder shall be
worldwide.
2. Term. Unless sooner terminated in accordance with the termination provisions
set forth in this Agreement, the term of this Agreement shall be for an initial
term of (1) year commencing on the date hereof (the "Initial Term"), and shall
be automatically
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renewed for an additional term of (6) months, unless at least thirty (30) dais
prior to the end of the Initial Term either party shall advise the other of its
desire to reincarnate this Agreement (the "Additional Term").
3. Time and Effort of Advisor Services. Advisor shall allocate such time and
assign such of Advisor's personnel as it deems necessary to complete the
Services to be provided under this Agreement. It is expressly understood that
the amount of time may vary from day to day and from week to week. The Company
agrees to provide any and all information and ordocuments reasonable requested
by Advisor and/or Advisor's personnel to assist in the performance of the
services required hereunder.
4. Limitation of Advisors Liability. In the absence of willful malfeafance, bad
faith, negligence, or reckless disregard for the obligations and duties
hereunder by Advisor, neither Advisor nor Advisor's personnel shall be liable to
the Company or any of its subsidiaries, officers, directors or shareholders for
any act or omission irk. the course of or connected with rendering the Services,
including, but not limited to, losses that may be sustained in any corporate act
in any subsequent business opportunity undertaken by the Company as a result of
advice provided by Advisor or Advisor's personnel.:
5. Advisory Services Compensation.
a) 750,000 shares of 144 stock with registration rights and unlimited
piggry back rights,
b) $100, 000.00 cash
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6. Costs and Expenses. All third party costs and out-of-pocket exposes incurred
by Advisor in excess of $1,000.00 shall be reimbursed to Advisor within ten (10)
days of presentation of written notice to the Company. During the Initial Term
and Additional Term, Advisor shall provide the Company with quarterly statements
of the time, costs and out-of-pocket expenses incurred in performance of the
Services.
7. Place os Services. The Services to be provided hereinunder shall be performed
in such place as Advisor, in its sole discretion, deems is the best location for
such Services and may include, but not be limited to the Advisor's offices, the
Company's offices or such other location as requited for the particular service
to be performed.
8. Independent Contractor. Advisor and Advisor's personnel will act as
independent contractors in the performance of the Services 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 employment and employer, between Advisor and
Advisor's personnel and the Company. Neither Advisor nor Advisor's. personnel
are authorized to eater into any agreements on behalf of the
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Company. The Company expressly retains the right to approve, in its sole'
discretion, each opportunity introduced by Advisor, and to make all final
decisions with respect to whether or not to accept or reject any business
opportunity suggested or introduced by Advisor or Advisor's personnel.
9. Rejected Asset Opportunity or Business Opportunity, If, during Initial Term
of this Agreement or the Additional Term, the Company elects not to proceed to
acquire, participate or invest in any business opportunity identified and/or
elected by Advisor or Advisor's personnel, 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
shal be entitled to acquire or broker the y sale or investment in such rejected
business opportunity for its own account, or submit such assets or business
opportunity elsewhere- in such. event, Advisor shale 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.
10. No Agency Express or Implied. This Agreement neither expressly nor impliedly
creates a relationship of principal and agent between the Company and Advisor,
or employee and employer as between Advisor and Advisor's personnel and
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11. Termination. The Company and Advisor may terminate this Agreement at any
time with mutual consent and either party name give notice of termination thirty
(30) days prior to the Additional Term. Failing such 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
(1) If during the Initial Term of this Agreement or the Additional
Term, Advisor is unable to provide the Services as set forth herein
for thirty (30) consecutive business days because of illness or other
incapacity of Advisor's personnel; or,
(2i) if Advisor willfully breaches or neglects the duties required to
be performed hereunder.
(B) By Advisor.
(1) If the Company breaches this Agreement or fails to make any
payments or provide information or documents required hereunder; or,
(2) 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 l into another corporation, or enters into such a transaction
outside of
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the scope of this Agreement, or sells substantially all f its assets
to another corporation, entity or individual outside the scope of this
Agreement; or,
(3) 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
its business; or
(4) If the Company subsequent to the execution hereof institutes,
makes a general assignment for the benefit of creditor, has instituted
against it any bankruptcy proceeding for reorganization or
rearrangement of its financial affairs, files a petition in a court of
bankruptcy, or is adjudicated a bankrupt; or
(5) If any of the disclosures made herein or subsequent hereto by the
Company to Advisor are determined to be materially false or misleading
In the even either party elects to terminate for cause or this Agreement is
terminated prior to the expiration of the Initial Term of if this Agreement is
terminated by mutual written agreement, the Company shall be responsible to pay
Advisor for unreimbursed expenses due hereunder.
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12. Indemnification. Subject to the provisions herein, the Company eind Advisor
agree to indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and expenses,
including including without limitation, interest, penalties and attorney's 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 ether party to y this Agreement.
13. Remedies. Any and all remedies available hereunder shall be cumq. ative and
nonexclusive and shall be in addition to any outer remedy to which the pares may
be entitled. y
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 that 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 arid to execute
and deliver documents as may be reasonably necessary to effectuate the
purpose of this Agreement;
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(D) Waiver. Any failure of any party to this Agreement to comfy 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 of tire provision of this
Agreement shall in no way be construe 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 new to be a waiver of any otner or subsequent breach or
noncompliance
(E) Assignment. Neither this Agreement nor any right created ~y it shall be
assignable by either party without the prior written consent of the other,
(F) Notices. Any notice or other communication required or prmitted 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 mail for transmittal be certified or registered mail, postage
prepaid, or when deposited with a recognized courier service for
transmittal, or when sent by facsimile transmission and such transmission
is evidenced by log as satisfactory transmitted, and in each case provided
that the communication is addressed:
(1) In the case of the Advisor: Performance Management Group, Inc.
0000 X.X. 00xx Xx.
Xxxxxxxx, XX 00000
Tele: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
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(2) In the case of Company: Super Boat International Productions, Inc.
0000 00xx Xxxxxxx
Xxx Xxxx, XX 00000
Tele: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
or to such other person or address designated in writing by the Company c
advisor to receive notice and served on the other party in accordance with this
section.
(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
(H) Governing Law. This Agreement was negotiated arid its being contracted
for in Florida, and shall be governed by the laws of the State of Florida.
The parties expressly agree to venue in Broward County, Florida for any and
all action commenced relative to this Agreement
(I) Binding Effect. This Agreement shall be binding upon the *lies 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.
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(K) Severability. If any party of this Agreement is deemed to
bunenforceable the balance of the Agreement shall remain in full force and
effect. i
(L) Counterparts. A. facsimile, telecopy, or other reproduction of this
Agreement may be executed simultaneously ire two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one aid the same instrument. The executed copy of this Agreement
shall be valid and binding upon a party when transmitted by facsimile to
the other party. At the request of any party hereto, all parties agree to
execute an original of this Agreement, as well as, any facsimile telecopy
:r 4 or other reproduction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxxx
-------------------- ------------------
Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx
Performance Management Group SuperBoat International Productions, Inc.
